Florida Criminal Law Opinions

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

Appeal from the Circuit Court for Hillsborough County; Ronald N. Ficarrotta, Judge.

James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.

DAVIS, Judge.

Cartaya Chablis Moore pleaded guilty to one count of grand theft. In addition to receiving a thirty-six-month period of probation to run consecutively to the prison sentence she received for violating her probation in a prior case, the trial court

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ordered Moore to pay $12,408 in restitution. We affirm the judgment and the probationary sentence without comment. We reverse the restitution order and remand for the trial court to conduct a new restitution hearing.

After Moore pleaded guilty, the trial court held a restitution hearing at which the State called the victim to testify regarding the value of the stolen property. Although certain items were recovered from pawn shops, many items of jewelry, clothing, and electronics were not recovered. The victim could not provide receipts for most of these items. Instead she provided testimony regarding the prices she paid for the items she purchased, estimates on the items she received as gifts, and a business card on which an employee of a jewelry store had listed the values of the pieces of jewelry she purchased from that store.

Moore objected to the testimony as hearsay, arguing that the hearsay evidence presented through the jewelry store business card and the victim’s estimates provided an insufficient basis on which the State could meet its burden of proof. Moore now argues on appeal that the trial court abused its discretion in allowing the statements to be introduced and in setting the restitution based on these hearsay statements.

The victim’s testimony regarding what the jewelry store’s employee told her regarding the estimated value of the unrecovered jewelry was improperly admitted hearsay. See M.M.S. v. State, 877 So. 2d 941, 941 (Fla. 2d DCA 2004). Additionally, the victim’s testimony regarding the items she received as gifts was also insufficient to establish the items’ values because the victim did not provide testimony of her own knowledge or opinion regarding the values. See Aboyoun v. State, 842 So. 2d 238, 239

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(Fla. 2d DCA 2003); see also Walentukonis v. State, 932 So. 2d 1136, 1137-38 (Fla. 2d DCA 2006) (Villanti, J., specially concurring) (noting that the victim is unlikely to realize what documentation is necessary to establish restitution amounts and that the restitution process could be improved if the State obtained the values of the items from the victim earlier in the trial process). We note that the trial court did not abuse its discretion in setting restitution amounts for those items for which the victim testified as to the amounts she actually paid, provided store receipts, testified regarding her own opinions of the amounts she and others paid in her presence, and testified regarding the condition of the items. See Aboyoun, 842 So. 2d at 240.

Accordingly, we reverse the restitution order and remand for the trial court to conduct a new restitution hearing on the restitution amounts for the unrecovered jewelry for which values were identified based on hearsay evidence and for those items about which the victim did not testify regarding her own knowledge or her own opinion. We affirm the judgment and sentence in all other respects.

Affirmed in part, reversed in part, and remanded.

VILLANTI and MORRIS, JJ., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

Appeal from the Circuit Court for Collier County; Elizabeth V. Krier, Judge.

James Marion Moorman, Public Defender, and Edward Lee Giles, Special Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appellee.

ALTENBERND, Judge.

Nicholas Michael Roberts appeals his judgments and sentences for two counts of improper exhibition of a firearm. We affirm one judgment and sentence but order that the second judgment and sentence be vacated on remand because it violates double jeopardy.

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Mr. Roberts was charged with two counts of aggravated assault with a firearm. He was working as a taxi driver when he got into a dispute with two men who were in a pickup truck that was parked near his taxi. He told the men to leave and pointed a firearm at them, stating that he could shoot them.

When the case was submitted to the jury, the misdemeanor offense of improper exhibition of a firearm was listed as a lesser offense for each aggravated assault. The jury found Mr. Roberts guilty of improper exhibition of a firearm as a lesser offense for both counts. The trial court entered judgments for both convictions and sentenced Mr. Roberts to concurrent terms of probation.

Section 790.10, Florida Statutes (2007), prohibits the exhibition of a firearm “in the presence of one or more persons.” Accordingly, although Mr. Roberts could have been convicted of two aggravated assaults if the jury had fully accepted the State’s case, see, e.g., Mauldin v. State, 9 So. 3d 25, 28 (Fla. 4th DCA 2009), the verdict for the lesser-included offense permits only a single conviction. See Bass v. State, 739 So. 2d 1243, 1246 (Fla. 5th DCA 1999); Canion v. State, 661 So. 2d 931, 931 (Fla. 4th DCA 1995). Therefore, we reverse the judgment and sentence for the second count of improper exhibition of a firearm and remand for the trial court to vacate the conviction.

Affirmed in part, reversed in part, and remanded.

KELLY and BLACK, JJ., Concur.

Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.

May, J.

The defendant appeals his conviction and sentence for carrying a concealed weapon and possession of a firearm after being adjudicated delinquent. He argues the trial court erred in certain rulings, thereby depriving him of a fair trial. We agree in part and reverse.

The charges arose from a tip by a confidential informant that a young man possessed a gun at a Fort Pierce parking lot. The tip indicated that the man wore a black tee shirt, blue jeans, and a blue baseball cap. A detective relayed the information to another officer, who drove to the location with a back-up officer following behind. The two police cars pulled into the parking lot behind a blue Chevy Caprice where three men stood next to the driver’s door.

Before putting his car in park, the lead officer saw the defendant reach for his front waistband, pull out a gun, open the driver’s door, and throw the gun in the car. The lead officer reached for his service pistol and ordered the men to get down.

The back-up officer searched the three men, but did not find the gun. The lead officer told the back-up officer the defendant had thrown the gun in the car. When the back-up officer opened the door to retrieve the gun, he discovered a young woman sitting in the front passenger seat.

The defendant was arrested and charged with carrying a concealed weapon and possession of a firearm after being adjudicated delinquent. The State listed the female passenger as a witness, but she failed to

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appear for her defense deposition in response to a subpoena or a resulting order to show cause issued by the trial court.

At trial, the defendant twice objected to discovery violations, at which time the trial court unilaterally undertook a Richardson¹analysis. The trial court later restricted defense counsel’s cross-examination of the female passenger, and disallowed defense counsel from arguing its position on a motion to suppress. We find the trial court’s limitation on defense counsel’s cross-examination of the female passenger reversible error, but also write to comment on the overall handling of this trial.

The first issue arose just after jury selection. The State advised the trial court of the need to substitute a witness due to the unavailability of another listed witness. The State explained that, although the lack of a permit was not an element of the charged crimes, defense counsel’s questions during voir dire gave the jury the impression the defendant had the right to carry a firearm. The State needed the witness to testify that the defendant did not have a permit to carry a concealed firearm. Defense counsel objected and requested a Richardson hearing.

Without hearing argument from counsel on the Richardson analysis, the trial court found a discovery violation, but that it was inadvertent, trivial, and did not affect the defendant’s ability to prepare for trial.

I’ll accept it [at] face value that whether or not a person has a concealed weapons permit is not an element of the crime charged, and [Defense counsel's] questions during Voir Dire might have caused you to amend… so I’ll find it inadvertent. Whether it was trivial or substantial, in my mind it’s… it’s fairly trivial because it doesn’t relate to… an element of the offense, but… might be used to negate a… possible… affirmative defense….[] Whether… you’ve been prejudiced in being able to properly prepare for trial. The exclusion of evidence is the most harsh, draconian remedy available under the law, and the Court must consider less drastic alternatives…. If it was done mid-trial there [would] be a problem. [] No one’s committed to any theory of defense, no one’s made any irrevocable statements or assertions in opening that would… cause prejudice.

After announcing its findings, the trial court gave defense counsel an

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opportunity to speak with the witness.

The second Richardson issue concerned the female passenger’s failure to appear for the defense deposition. Defense counsel argued that the female passenger’s failure to appear constituted a discovery violation and warranted her exclusion. Once again, the trial court single-handedly conducted the Richardson analysis.

THE COURT: Okay, well I don’t know that it’s a Richardson violation insofar it’s not that the State did something in failing to fulfill its obligations under 3.220, but I still think the third prong of Richardson is instructive and analogous, and that’s the prejudice prong regarding the witness fail[ing] to appear at a deposition. And the remedies always… I mean it’s so easy to say, “Exclude Evidence, Exclude Witnesses.” Understanding the case law that I’m bound and obligated to follow says that is the [] harsh[est] draconian remedy available under the law that should be the absolute last resort. The existence of [the female passenger] has been known since day one in this case…. The… rather than exclude evidence I would… certainly give you time to talk to her. The fact that she failed to appear at a deposition in and of itself would not support the harsh remedy exclusion of evidence under State versus Consman (phonetic) the Courts’ noted properly that the right to take a deposition is not a Constitutional right…. I’ve heard nothing []… that would suggest to me that the harsh remedy of exclusion is necessary. But what I will do is, I will take a recess to give you a chance to talk to [the female passenger]. I’m not even go[ing] [to] put a time limit on it, you just come get me when you’re… when you’ve had a chance to talk to her.

We find no error in these ultimate rulings, but we do not condone the trial court’s unilateral manner in addressing Richardson.

“Once a trial court has notice of an alleged discovery violation, the trial court is obligated to conduct a Richardson hearing.” Lewis v. State, 22 So. 3d 753, 757 (Fla. 4th DCA 2009). When an adequate Richardson hearing is conducted, we review the trial court’s decision to admit the evidence for an abuse of discretion. Wiltzer v. State, 756 So. 2d 1063, 1066 (Fla. 4th DCA 2000).

[T]he court’s discretion can be properly exercised [o]nly after the court has made an adequate inquiry into all of the

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surrounding circumstances. Without intending to limit the nature or scope of such inquiry, we think it would undoubtedly cover at least such questions as whether the state’s violation was inadvertent or wilful [sic], whether the violation was trivial or substantial, and most importantly, what effect, if any, did it have upon the ability of the defendant to properly prepare for trial.

Ramirez v. State, 241 So. 2d 744, 747 (Fla. 4th DCA 1970).

Here, the trial court short-circuited the Richardson hearings in both instances. Without allowing an opportunity for the defense to state its position, and without asking the State any questions, the trial court single-handedly addressed the issue. This is not the procedure required by Richardson.

The role of a trial court is to be a neutral arbiter and to rule on issues presented to it. It is not the role of the trial court to be prosecutor, defense counsel, and arbiter. While we find no error in the ultimate outcome of these issues, the trial court should allow the parties to play their roles in the proceedings and the court should restrict itself to conducting an adequate inquiry into the surrounding circumstances so that it can rule appropriately.

The defendant next argues error in the trial court’s limitation on defense counsel’s cross-examination of the female passenger. It is this error which causes us to reverse.

The State suggests the issue was unpreserved because defense counsel did not proffer the questions to be asked. We disagree. The defendant attempted to ask the female passenger about her failure to appear for a deposition even when the trial court ordered her to appear. Defense counsel advised the court that the questions would show the female passenger’s motive, bias, and lack of trustworthiness. We find that defense counsel sufficiently preserved the issue. See Coxwell v. State, 361 So. 2d 148, 151-52 (Fla. 1978).

“The trial court has broad discretion in determining the relevance of evidence and such a determination will not be disturbed absent an abuse of discretion.” See Heath v. State, 648 So. 2d 660, 664 (Fla. 1994). That discretion is limited by a criminal defendant’s Sixth Amendment right to confront his accusers. See Steinhorst v. State, 412 So. 2d 332, 337 (Fla. 1982).

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“Any party, including the party calling the witness, may attack the credibility of the witness by… [s]howing that the witness is biased.” § 90.608(2), Fla. Stat. (2008). A party has the right to “inquire into matters that affect the truthfulness of the witness’ testimony.” Chandler v. State, 702 So. 2d 186, 195 (Fla. 1997). And, “[o]ur evidence code liberally permits the introduction of evidence to show the bias or motive of a witness.” Gibson v. State, 661 So. 2d 288, 291 (Fla. 1995).

Here, the defendant’s Sixth Amendment right to confront the female passenger was violated. The defendant should have been permitted to cross-examine the witness about her failure to appear for the defense deposition and in response to the subsequent rule to show cause. This information was relevant to show her bias and motive to testify for the State. Accordingly, the trial court abused its discretion in prohibiting the defendant from questioning the witness on this subject.

Lastly, the defendant argues that his due process rights were violated when the trial court prohibited defense counsel from arguing the motion to suppress. “Fundamental to the concept of due process is the right to be heard which assures a full hearing, the right to introduce evidence at a meaningful time and in a meaningful manner, and judicial findings based upon that evidence.” See Hinton v. Gold, 813 So. 2d 1057, 1060 (Fla. 4th DCA 2002).

Here, while defense counsel was permitted to cross-examine witnesses concerning the motion to suppress, the trial court allowed defense counsel only to proffer applicable case law. At that point, the court abruptly interjected its own analysis.

THE COURT: [] I mean this isn’t even a… I don’t need argument.
It’s not even a close call. [] Babtiste [v. State] [] was a case involving an anonymous tip, here it was the info came to law enforcement from a confidential informant who is known to law enforcement. The Detective, the information was relayed to his fellow officers’ that this information was, there’s a firearm, but what… whether it’s [an] anonymous tip, or confidential informant I think the most distinguishing features in Babtiste the majority writes, “During the hearing on the Motion to Suppress, Officer Ellison (phonetic) testified that when she arrived at the scene, she did not observe Babtiste waiving [sic] or carrying a firearm, or engaging in any suspicious behavior. Officer Ellison

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(phonetic) further testified, “That Officer Willems (phonetic) the first officer to arrive at the scene did not indicate that Babtiste had engaged in any observed suspicious behavior.” This case is completely distinguishable, in this case they had information that he had a firearm…. I think Babtiste [] is completely distinguishable, therefore I don’t have to necessarily criticize the decision, but as you know I was a Captain in the United States’ Marine Corp, and I have a more than a passing familiarity of what constitutes sound tactics if you want to remain alive. And I think Judge Justice Wells, and Bell in their dissent are… absolutely right both tactically and legally. I think Justice Ansted and Perianti (phonetic) are very smart people, but I think they would have a life expectancy that could be measured in seconds, if they were law enforcements out on the mean streets of liberty city at 3 in the morning. It’s easy to kind of second guess law enforcement when you sit in the rarefied atmosphere of an Appellate Court where everyone that’s come into the building has gone through a metal detector, been subject to screening and wanding, and then you go into the courtroom and they’re, they are surrounded by armed Marshals or Deputies to sit back and say, “Well you should just go up and have a chat with these folks’.” Like I said, these people would be dead if they followed those kind of tactics. And I think Justice Wells and Justice Bell hit the nail on the head when they say, and again I’m citing the dissent, but the case I think even the main decisions are “The majority of the opinion is incorrect and incomplete because after determining there was a violation of the Fourth Amendment the majority fails to consider the appropriateness of the exclusionary rule.” Here I find no violation of the Fourth Amendment. This case is completely distinguishable, he was reaching for a gun in his waistband, and actually tossed the firearm away. He’s lucky he’s sitting here arguing a Motion to Suppress, rather than having been zipped up in a body bag that night because the officer would have been justified in using deadly force….I believe the majority suggested procedure is unrealistic and extremely dangerous to law enforcement officers’ whether it’s a legal [] matter, I can tell you tactically it’s… a kind of a goofy decision…. I find no violation, I think the law enforcement were completely within their rights in acting as they did…. I will deny the Motion to Suppress, and I will do a written Order as well.

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[Defense Counsel]: If I could just say on the record that the Motion was denied without any argument whatsoever from Defense Counsel?
THE COURT: Well, I’ll note that it was [] not even a close call…. That the Motion was border line frivolous, and I don’t need argument.

While the Sixth Amendment does not require a criminal defendant to be heard on a motion to suppress, and we expressly do NOT require every motion to suppress be subject to argument from counsel, this trial reflects a consistent series of unnecessary restrictions on this defendant’s right to confront, argue, and present his case. See Herring v. New York, 422 U.S. 853, 863 n.13 (1975). The courtroom is neither a stage designed for trial judges to editorialize about their interpretation of the law, nor is it a place to express displeasure with higher court rulings. Rather, the courtroom is designed to allow our system of justice to unfold and provide all parties concerned with a fair trial.

For the specific error in the limitation on cross examination, we reverse and remand the case for a new trial. See McDuffie v. State, 970 So. 2d 312, 328-29 (Fla. 2007). Given the judge’s above-quoted comments pertaining to the defendant being “lucky”, this case shall be assigned to another judge.

Reversed and Remanded.

Damoorgian and Gerber, JJ., concur.

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Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Robert E. Belanger, Judge; L.T. Case No.

562008CF001672A.

Not final until disposition of timely filed motion for rehearing.

—

Notes:

^1. Richardson v. State, 246 So. 2d 771 (Fla. 1971).

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Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.

Warner, J.

After the conclusion of closing argument in appellant’s trial for organized fraud, the trial court changed the instruction on the elements of the crime, from an instruction requiring the jury to find that the appellant and his co-defendant engaged in a scheme to defraud, to an instruction requiring that the jury find that the appellant and/or his co-defendant engaged in a scheme to defraud. Because appellant had relied on the prior instruction in his argument to the jury, we conclude that the error requires reversal.

Appellant and his co-defendant were charged by amended information with committing organized fraud, in violation of section 817.034(4)(a)1., Florida Statutes (2001). The state alleged that, during a three-year period, the appellant obtained over $50,000 from various victims, making the offense a first-degree felony.

The evidence at trial showed that appellant owned and operated an investment company called Merit First. Appellant and his co-defendant, Scott Smith, each sold investment opportunities to friends and acquaintances. The state called thirteen witnesses who each gave substantial sums of money to appellant or Smith for investment purposes. Smith attracted investors, mostly from his church, to appellant’s firm. Some investors dealt solely with appellant; some dealt solely with Smith; and some dealt with both appellant and Smith. The investors were usually given promissory notes, which were to be repaid within sixty-ninety days, and told that their funds would be used to

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finance shell corporations that would be sold to start-up companies seeking to go public. However, the investors were never repaid.

A state investigator testified that he had reviewed appellant’s books and records and could find no investor money going into any investments at all, but he did find substantial amounts flowing to appellant and his family and to Smith. Smith testified that before he joined appellant, he checked out his references, which seemed accurate. He began selling investments for appellant who would continually tell Smith that he was on the brink of a sale of a shell corporation which would bring the return to investors. After about eighteen months, Smith stopped believing him. Smith claimed that he repaid some investment funds to one investor.

At the charge conference, the parties agreed to instruct the jury that to prove the elements of organized fraud, the state must prove: (1) that appellant and Smith engaged in a scheme to defraud, and (2) that appellant and Smith obtained property through the scheme to defraud. Appellant’s defense lawyer relied upon this instruction in closing argument, arguing to the jury as follows:

[DEFENSE:] And the one thing that [the prosecutor] said is you have to believe that John Martin O’Keefe, Sr. and Peter Scott Smith engaged in it together not or. It’s and. And that’s very, very critical because they both had to be in on it together….
Now, you’ll be told by the State and you’ll be told by the judge that you have to try them separately on their own facts. But the law is very clear. It’s Mr. O’Keefe and Mr. Smith engaged in a scheme to defraud. That has to be proven beyond and to the exclusion of every reasonable doubt.

Part of appellant’s counsel’s closing argument pointed to the fact that most of the investor witnesses invested through Mr. Smith without contacting appellant. Smith’s closing argument focused on his lack of knowing participation in a scheme to defraud, that he was simply the “mate” on the boat of which appellant was the “captain.” In the end of rebuttal, the prosecutor asked the jury to determine whether the two defendants were “in this together.”

After the closing arguments, the trial court questioned whether the jury instructions agreed on at the charge conference were correct. In particular, the court questioned whether the conjunction “and” should be

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placed between the names of the defendants in the instructions on the elements of the crime. The prosecutor noted that the jury needed to make a determination as to each defendant separately, suggesting that the instruction “probably should be and/or.” Counsel for co-defendant Smith also asked that the instruction be changed to “and/or” and explained that such an instruction would be “more appropriate.”¹ However, appellant’s defense counsel repeatedly objected to the change in the instruction, noting that in closing argument he relied on the instructions that were presented in the charge conference. The court also believed that appellant’s closing argument was contrary to standard jury instruction 3.12B.²

Ultimately, over appellant’s objection, the trial court changed the jury instruction from the “and” conjunction to the “and/or” conjunction, instructing the jury as follows:

To prove the crime of organized fraud, the State must prove the following two elements beyond a reasonable doubt:
1. JOHN MARTIN O’KEEFE, SR. and/or PETER SCOTT SMITH engaged in a scheme to defraud.
2. JOHN MARTIN O’KEEFE, SR. and/or PETER SCOTT SMITH obtained property through the scheme to defraud.

Before the trial court instructed the jury, defense counsel asked for a curative instruction to notify the jury of the change in the wording of the instruction, explaining that he did not want the jury left with the impression that he “had no idea what he was talking about.” In particular, appellant’s counsel explained: “I think you would say that all lawyers agreed based on 3.12B we amended it to and/or. I think they have to be put on notice if you’re going to overrule my objection, I think, there has to be an explanation. Otherwise, this is a detriment of Mr. O’Keefe’s defense in closing argument.” The trial court denied appellant’s request for a curative instruction and instructed the jury with the

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changed instruction. The jury found both defendants guilty as charged. Appellant was sentenced to five years in prison and ordered to pay restitution to his victims. He appeals.

On appeal, appellant argues that changing the jury instruction after closing argument was reversible error. He contends that the error was particularly egregious where the court denied his request for a curative instruction, which left the jury with the impression that defense counsel was either trying to mislead it or was ignorant of the law. We agree that this error requires reversal.

“Closing arguments are the last and best opportunity trial counsel have to directly address the jury on what they should or should not decide within the parameters of the proper instructions the jury is about to receive from the trial judge.” King v. State, 642 So. 2d 649, 650 (Fla. 2d DCA 1994), disapproved of on other grounds, Welsh v. State, 850 So. 2d 467 (Fla. 2003). In accordance with this principle, several cases have found reversible error where the trial court, after closing arguments, instructed the jury differently than what was determined at the charge conference. See Kirkland-El v. State, 883 So. 2d 383 (Fla. 4th DCA 2004) (holding that the defendant was deprived of a fair trial on a charge of aggravated battery where the trial judge decided to omit a “duty to retreat” instruction at the charge conference, but then in the middle of closing arguments, the judge changed his mind and decided that the instruction would in fact be given to the jury); Knuth v. State, 679 So. 2d 22 (Fla. 2d DCA 1996) (holding that a change in jury instructions after closing argument amounted to reversible error where the defendant lost the opportunity to address the proper DUI manslaughter instruction during closing); King, 642 So. 2d at 650 (holding that the defendant was deprived of the right to a fair trial where, after closing arguments, the trial judge reversed himself and decided to give an instruction on a lesser-included offense requested by the defense; although the instruction was ultimately given, this did not cure the error because defense counsel was forced to present the closing argument without being able to argue the lesser-included offense).

In Kirkland-El, we articulated the magnitude of the damage that can be done to the presentation of a defendant’s case where the jury instructions are changed following closing argument:

Relying on the trial court’s rulings at the charge conference, counsel argued that Kirkland-El had no duty to retreat in his own home. Then, after the trial court reversed its position, the state was able to argue consistently with what the jury

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would hear from the jury instructions. Thus, the jury would have to conclude that defense counsel was either trying to purposely mislead it or was ignorant of the law. Because the instruction was central to the defense of the case on a hotly contested issue, Kirkland-El was prejudiced by the actions of the trial court.

883 So. 2d at 385 (emphasis added). Similarly, in Knuth, the Second District explained that although the trial court “ultimately gave an appropriate instruction, the failure to give the instruction before the defendants had their final say generated prejudice that can only be remedied by retrial.” 679 So. 2d at 23.

The error which occurred in this case constitutes a per se reversible error. Recently, in Johnson v. State, 2010 WL 3909859 (Fla. Oct. 7, 2010), our supreme court explained the per se reversible error rule:

Like the harmless error test, the per se reversible error rule is concerned with the right to a fair trial. [State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla.1986).] “The test of whether a given type of error can be properly categorized as per se reversible is the harmless error test itself.” Id. “If application of the test to the type of error involved will always result in a finding that the error is harmful, then it is proper to categorize the error as per se reversible.” Id.
This Court has also applied the per se reversible error rule to those cases where the appellate court is unable to conduct a harmless error analysis because it would have to engage in pure speculation in order to attempt to determine the potential effect of the error on the jury.

Errors which the Johnson court categorized as per se reversible error include: (1) a trial court responding to a jury question outside of the presence of defense counsel, Ivory v. State, 351 So. 2d 26, 28 (Fla. 1977); (2) a bailiff’s unsupervised conversations with the jury, State v. Merricks, 831 So. 2d 156, 161 (Fla. 2002); and (3) substitution of a juror after deliberations begin, Williams v. State, 792 So. 2d 1207, 1210 (Fla. 2001). In Johnson, the court held that a court’s preemptive instruction that it would not allow read back of testimony prior to any request constituted per se reversible error.

We find that the error in this case of changing the substance of the elements of the charged crime after closing argument is the type of error

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which must be treated as per se reversible, because we would be engaging in speculation to determine the effect that such a change had on the jurors. As noted in Kirkland-El, the jurors might completely disregard the defense’s case and argument on the ground that defense counsel was trying to mislead them or was simply ignorant of the law.

The court could have cured the error in this case by accepting appellant’s request for a curative instruction. Unfortunately, the court refused to give such an instruction.

For these reasons, we reverse and remand for a new trial.

Polen and Levine, JJ., concur.

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Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Karen Miller, Judge; L.T. Case No. 2006CF010334AXX.

Not final until disposition of timely filed motion for rehearing.

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Not final until disposition of timely filed motion for rehearing.

An Appeal from the Circuit Court for Miami-Dade County, Peter R. Lopez, Judge.

Carlos J. Jimenez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.

Before RAMIREZ, C.J., and SUAREZ and ROTHENBERG, JJ.

RAMIREZ, C.J.

Jesus Carbonell appeals the trial court’s final judgment of conviction and sentence. We reverse and remand for a new trial because the trial court erred in

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allowing the State to introduce an uncharged robbery that took place earlier in the day when the State was unable to show that the uncharged robbery was similar enough to the charged robbery to establish relevance.

Carbonell was charged with burglary with an assault and strong armed robbery. His defense at trial was misidentification. The facts, taken in the light most favorable to the State, indicate that early in the evening on November 8, 2006, I.G. went to a Shell gas station to purchase a lottery ticket. After she bought the ticket, I.G. went to the parking lot and got in her car. A young male opened the car door, and yanked and grabbed her chain from her neck. The robber asked I.G. for her purse and after he looked into the purse, he threw it back at her. The robber then fled the scene in a pick-up truck. I.G. went back into the gas station and called the police.

A few days later, the police went to I.G.’s house and showed her a photo lineup. She was unable to identify Carbonell as the robber. The following day, the police returned and this time, I.G. identified Carbonell as someone who looked like the robber. At a deposition, I.G. indicated that she was seventy percent positive that Carbonell was the robber. At trial, she positively identified Carbonell as the robber.

Before trial, the State filed a motion to be allowed to introduce Williams Rule evidence from a woman who claimed that Carbonell had committed a strong

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armed robbery against her on the same day as the crime in this case. Over the objection of counsel, the trial court allowed the State to introduce the testimony of M.G. M.G. testified that on November 8, 2006, she was walking to the Metro Rail Station on US1 and 27th Avenue at approximately 8:45 a.m. when she saw a Ford pick-up truck approach and stop next to her. According to M.G., there was a man and a woman in the truck. After the truck stopped, a man jumped out of the truck and grabbed her chain and purse. The robber then got back into the truck and left. M.G. identified Carbonell in a photo lineup and in court as the person who committed the robbery.

Thereafter, during trial, the judge suppressed a statement given by Carbonell to the police where Carbonell told the police he had a drug problem, he did not remember stealing the victim’s purse, and he would not have used the family car to commit a crime. The trial court suppressed the statement based on the fact that the police took the statement after Carbonell had been appointed counsel.

During closing argument, the prosecutor argued the following:

I wish I could give you, you know, a full confession. I wish I could give you a videotape of the robbery. I wish I could make it that easy for you. It’s not going to be that easy.

The jury subsequently found Carbonell guilty as charged. The trial court sentenced him to twenty-five years as a prison releasee re-offender as to one count

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and a violent habitual offender as to the second count. The trial court ordered the sentences to run concurrent with each other.

On appeal, we conclude that the trial judge erred in allowing the State to introduce the uncharged robbery that took place earlier in the day because the State was unable to show that the uncharged robbery was similar enough to the charged robbery to establish relevance. The law in Florida and a comparison of the facts in the charged burglary and robbery with the facts in the uncharged robbery establish that the two crimes were not similar enough to justify their admission in this case. The Florida Supreme Court addressed the standard for admission of collateral crime evidence in Williams v. State, 110 So. 2d 654 (Fla. 1959). The Williams Court stated, “[o]ur view of the proper rule simply is that relevant evidence will not be excluded merely because it relates to similar facts which point to the commission of a separate crime. The test of admissibility is relevancy.” Id. at 659. Section 90.404(2)(a), Florida Statutes (2005), codified this rule, which provides:

Similar fact evidence… is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

Thus, to be allowed to introduce evidence of another crime, the State must establish that the uncharged crime is relevant to some issue that is in dispute and is

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not being introduced to establish propensity to commit a crime. Chambers v. State, 742 So. 2d 839, 840 (Fla. 3d DCA 1999). Before admitting Williams Rule evidence, the trial court must make four determinations: whether there is sufficient evidence that the defendant committed the uncharged crime; whether the evidence in the uncharged crime meets the similarity requirement necessary to be relevant; whether the uncharged crime is too remote, so as to diminish its relevance; and whether the prejudicial effect of the uncharged crime substantially outweighs its probative value. Robertson v. State, 829 So. 2d 901, 907-08 (Fla. 2002). Moreover, to meet the similarity requirement, the Williams Rule evidence must bear a striking similarity to the charged offense and must share with the charged offense unique characteristics that give the Williams Rule evidence probative value with respect to the charged offense. Heuring v. State, 513 So. 2d 122, 124 (Fla. 1987) (“The charged and collateral offenses must be not only strikingly similar, but they must also share some unique characteristic or combination of characteristics which sets them apart from other offenses.”), quashed on other grounds, 559 So. 2d 207 (Fla. 1990).

The Florida Supreme Court in McLean v. State, 934 So. 2d 1248, 1255 (Fla. 2006) explained the substantial similarity requirement, stating:

[I]n cases where the purported relevancy of the collateral crime evidence is the identity of the defendant, we have required “identifiable points of similarity” between the collateral act and charged

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crime that “have some special character or [are] so unusual as to point to the defendant.” Drake v. State, 400 So. 2d 1217, 1219 (Fla. 1981). This is because “[the mode of operating theory of proving identity is based on both the similarity of and the unusual nature of the factual situations being compared." Id. Thus, "[a] mere general similarity will not render the similar facts legally relevant to show identity.” Id.

Here, the victims in both cases were the subject of a strong armed robbery where the robber took chains and a purse, and left in a pick-up truck. However, we cannot say that the two crimes were so unique to justify the admission of the uncharged crimes.

In addition, there were several dissimilar facts which also established that the uncharged crime was not admissible. In the charged crime, the victim claimed that she only saw the defendant prior to the robbery. In the uncharged crime, the victim claimed that the defendant was in a truck along with a female and that the defendant jumped out of the truck and committed the crime. The charged crime was committed at night, and the uncharged crime was committed in the morning. Finally, the two crimes were not committed at the same location, nor were they committed at the same type of location. The charged crime was committed at a gas station, and the uncharged crime was committed near a Metro Rail Station.

In this case, there is nothing so unique or particularly unusual about the similarities in the charged offense and the collateral offense so that it is reasonable to conclude that the same person committed both crimes. Therefore, the uncharged

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crime had little relevance to the crime charged and its probative value was clearly outweighed by its prejudicial effect, and should not have been admitted into evidence.

This Court must next resolve whether the State can establish beyond a reasonable doubt that the improper evidence did not contribute to the jury verdict. The State’s case relied heavily upon the eyewitness identification of the eighty-year-old victim. The validity of this identification was a highly contested issue at trial. The first time the victim was shown a photo lineup she was unable to identify Carbonell. The following day, she was once again shown the lineup and this time, she pointed to Carbonell and indicated that he looked like the robber. During a deposition prior to trial, the victim indicated that she was seventy percent positive that Carbonell was the robber. It was not until trial when Carbonell was sitting at defense table that the victim positively identified him as the robber.

Admission of irrelevant similar fact evidence is “presumed harmful error because of the danger that a jury will take the bad character or propensity to crime thus demonstrated as evidence of guilt of the crime charged.” Robertson v. State, 829 So. 2d 901 (Fla. 2002). We conclude that the State has not overcome this presumption of harmful error.

Carbonell also contends that the prosecutor committed fundamental error during closing argument when the prosecutor argued to the jury that she wished

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she had a full confession because the improper argument could either be interpreted as a comment on Carbonell’s right to remain silent, or in the alternative, a comment on evidence that was excluded by the trial judge. As previously stated, during the trial the trial judge suppressed a statement given by the defendant to the police because the police took the statement after the defendant had been appointed counsel. Although the prosecutor’s argument may have been improper, it was defense counsel that first argued to the jury that “[t]here is not a single thing about Mr. Carbonell making a statement in this case.” We are thus unwilling to hold that the statement constituted fundamental error, but on retrial, we caution the State against repeating such an argument.

In conclusion, we reverse the trial court’s judgment of conviction and sentence and remand for a new trial.

Reversed and remanded.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

Appeal from the Circuit Court for Pinellas County; Philip J. Federico, Judge.

James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Appellee.

DAVIS, Judge.

David Brinson, Jr., challenges his robbery sentence, which was imposed upon resentencing after reversal of his violent career criminal (VCC) sentence. See Brinson v. State, 995 So. 2d 1047, 1049 (Fla. 2d DCA 2008). We affirm Brinson’s

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sentence without comment. We remand for the limited purpose of correcting a scrivener’s error which appears on the face of the judgment. The written judgment correctly reflects that Brinson was convicted of a second-degree felony, but it incorrectly identifies that felony as armed robbery, which is actually a first-degree felony. See § 810.02(2)(b), Fla. Stat. (1999). Accordingly, we remand with instructions that the trial court correct the written judgment to reflect that Brinson was convicted of the second-degree felony of robbery. See Newson v. State, 867 So. 2d 603 (Fla. 2d DCA 2004).

Affirmed; remanded to correct scrivener’s error.

NORTHCUTT and SILBERMAN, JJ., Concur.

Warner, J.

J.T. appeals an order finding him guilty of possession of a weapon or firearm on school property. He contends that the state failed to prove that the BB gun he brought onto school property was operable and thus a weapon. Because the state produced the BB gun at trial, and the officer testified regarding its operation and ability to inflict harm, the deadliness of the weapon was a question of fact, and the trial court properly denied J.T.’s motion for judgment of dismissal.

At the adjudicatory hearing, the evidence revealed that J.T. brought a BB gun to his middle school in his backpack. He showed it to several students. After one of the students notified the principal, the school resource officer investigated and found the gun in J.T.’s backpack. When the officer inspected the gun, he found that the CO2 gas cartridge, necessary to make the gun operable, was in the gun, as was at least one pellet. The officer testified that a BB pellet shot from a gun could put someone’s eye out, and the BB gun was a dangerous weapon. While the officer did not test the gun, he testified that J.T. had told him that he had fired the gun in the past. It belonged to J.T.’s brother, and J.T. mistakenly brought it to school but admitted he had shown it to friends there. The BB gun, pellets and CO2 cartridge were admitted into evidence.

After the state presented its case, J.T. moved for a judgment of dismissal, arguing that the state had failed to prove that the BB gun was a dangerous weapon, because the state did not prove that the gun was operable. The state objected, claiming that the issue was one of fact for

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the trier of fact, and that it had produced sufficient evidence to withstand a motion for judgment of dismissal. The judge first found that a BB gun was a weapon and then ruled that there was no proof that the weapon was inoperable. It determined, however, that the state did not have to prove the issue of operability, because of the zero tolerance policy for guns at school. The court denied the judgment of dismissal, withheld adjudication of J.T., and ordered him to perform community service. He appeals.

We apply a de novo standard of review for a motion for judgment of dismissal in a juvenile case. See J.P. v. State, 855 So. 2d 1262, 1264 (Fla. 4th DCA 2003). The motion tests the legal sufficiency of the state’s evidence. Because the state’s evidence was legally sufficient, we affirm.

Section 790.115(2) prohibits the possession of a firearm “or other weapon as defined in s. 790.001(13)” on school property. A BB gun is not a firearm, see Wilson v. State, 901 So.2d 885, 886 (Fla. 4th DCA 2005), and thus that provision of the statute does not apply. The relevant portion of section 790.001(13) defines “weapon” as “other deadly weapon except a firearm A deadly weapon is one which can inflict death or great bodily injury. See Dale v. State, 703 So. 2d 1045, 1047 (Fla. 1997).

This case in controlled by Dale in which the supreme court held that it is a question of fact as to whether a BB gun is a deadly weapon, i.e., whether it is capable of producing death or great bodily injury. The finding of the jury, or trier of fact, will be upheld where there is competent substantial evidence to support the determination. In Dale, the court pointed to the evidence which supported the jury’s conviction for armed robbery, where the defendant possessed a BB gun during the robbery.

In the present case, the jury had a sufficient basis for concluding that Dale’s weapon was deadly. Of key importance is the fact that the jury had an opportunity to view the weapon first-hand. Further, Officer Stone testified concerning the circumstances under which the gun was found and the condition it was in when found, and Investigator Corder showed the jury in detail how the gun operated. The fact that the gun was recovered without BBs, pellets, or gas cartridge is not dispositive.

Id. at 1047 (emphasis supplied). Dale cites to Bentley v. State, 501 So. 2d 600, 602 (Fla. 1987) for the proposition: “Whether the gun in [the

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defendant's] possession was loaded or whether [the defendant] had available ammunition is irrelevant.”

Applying Dale in Jones v. State, 869 So. 2d 1240, 1242 (Fla. 4th DCA 2004), we reversed a conviction for robbery with a deadly weapon because the BB gun used in the robbery was not in evidence for the jury to examine, as it had been inadvertently destroyed by the state. No one testified as to its operation, and the defendant testified that it “couldn’t hurt a fly.”

In contrast, in this case the BB gun was admitted into evidence. The investigating officer described the gun and explained to the court how it worked. He testified that a shot from the gun could put someone’s eye out. In T.H. v. State, 859 So. 2d 549 (Fla. 4th DCA 2003), we held that evidence that the gun could damage an eye was sufficient to prove that the BB gun was a weapon for purposes of section 790.115(2). Moreover, J.T. himself admitted to the officer that he had fired the gun. Therefore, this too supported a finding that the BB gun was capable of producing great bodily harm.

We distinguish our recent case of J.M.P. v. State, 43 So. 3d 189 (Fla. 4th DCA 2010). There, the juvenile was also charged with a violation of section 790.115(2) by bringing a BB gun to school. The opinion does not mention that the BB gun was placed in evidence. The court held that the state’s evidence was insufficient to show that the gun was a deadly weapon because the state did not provide any explanation of how to operate the gun or the type of injury it would inflict.¹ In this case, the officer testified both as to how the gun operates and the injury it could inflict.

To summarize, we hold that in a prosecution for possession of a BB gun on school premises in violation of Florida Statute 790.115(2), where the state introduces the BB gun into evidence and offers testimony regarding its operation and the extent of harm which can be caused by a BB gun, the state has presented legally sufficient evidence to avoid a judgment of dismissal. It is then a question for the trier of fact to determine by competent substantial evidence as to whether the BB gun constitutes a deadly weapon and thus violates the statute.

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Our holding should be limited to those cases where the BB gun is admitted into evidence. We do not comment on whether other evidence could show that the BB gun used in a crime is a deadly weapon even when it is not available as evidence.

Because the state presented legally sufficient evidence to survive a judgment of dismissal, we affirm the trial court’s ruling.

Affirmed.

Polen and Levine, JJ., concur.

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Merrilee Ehrlich, Judge; L.T. Case No. 08-10653 DL00A.

Carey Haughwout, Public Defender, and Ephrat Livni, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

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NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

An appeal from the Circuit Court for Jackson County.

William L. Wright, Judge.

Nancy A. Daniels, Public Defender, and Paula S. Saunders, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney Generals, Tallahassee, for Appellee.

HAWKES, C.J.

Howard Sullivan appeals his convictions and sentences for second-degree murder and robbery with a deadly weapon. We affirm the robbery conviction without further discussion, and write only to address Sullivan’s argument that the trial court committed fundamental error when instructing the jury on second-

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degree murder. Sullivan claims the trial court erred because, when instructing the jury on manslaughter by act, a lesser included offense of second degree-murder, it informed the jury that intent to kill was a required element. Defendant did not object to this instruction at trial. We find Sullivan’s argument persuasive and, therefore, reverse his second-degree murder conviction and sentence.

Pursuant to Montgomery v. State, 39 So.3d 252, 257 (Fla. 2010), the relevant intent in the charge of manslaughter by act “is the intent to commit an act which caused death, [not] that the defendant intended to kill the victim.” Montgomery states any instruction that includes intent to kill as an element of manslaughter by act is fundamental error. Id. at 258. A narrow exception exists when the trial court gives the erroneous instruction on manslaughter by act in combination with the instruction on manslaughter by culpable negligence. See Joyner v. State, 41 So.3d 306, 306-07 (Fla. 1st DCA 2010). Fundamental error does not occur in such circumstances because it is possible the jury will base its decision only upon the elements of manslaughter by culpable negligence, which do not require a finding of intent to kill. Id. at 306; see also Riesel v. State, 2010 WL 4025863 *1 (Fla. 1st DCA October 15, 2010); Jackson v. State, __So.3d__, 35 Fla. L. Weekly D1943-44 (Fla. 1st DCA August 31, 2010); Salonko v. State, 42 So.3d 801, 803 (Fla. 1st DCA 2010).

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Here, the trial court instructed the jury that manslaughter by act required an intent to kill, and gave no instruction on manslaughter by culpable negligence. Accordingly, under Montgomery, the jury instruction was fundamental error. Therefore, we reverse Sullivan’s conviction for second-degree murder and remand for a new trial on that charge.

AFFIRMED in part; REVERSED in part and REMANDED.

ROBERTS and ROWE, JJ., CONCUR.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

An appeal from the Circuit Court for Duval County.

Mallory D. Cooper, Judge.

Nancy A. Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, for Appellee.

ROBERTS, J.

The appellant, Syna Lim, was charged and convicted of aggravated child abuse and first-degree felony murder in the death of two-year-old Amara Ou, who died of blunt force trauma to the head. The appellant raises two issues on appeal,

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only one of which merits discussion. She argues that her conviction for aggravated child abuse must be set aside because the merger doctrine precludes the use of aggravated child abuse as the underlying felony in a felony murder charge if only a single act of abuse led to the child’s death. We disagree and affirm.

The felony murder statute specifically provides that aggravated child abuse can serve as the underlying felony in a felony murder charge. See § 782.04(1)(a)2.h., Fla. Stat. (2006). This is true regardless of the number of acts of abuse that led to the child’s death. See Lewis v. State, 34 So. 3d 183, 185-87 (Fla. 1st DCA 2010). Thus, the merger doctrine neither applies nor precludes the use of aggravated child abuse as the underlying felony in a felony murder charge so long as one or more acts of abuse led to the child’s death. See id. But see Sturdivant v. State, 2010 WL 3464410 (Fla. 1st DCA Sept. 7, 2010), rev. granted, SC10-1791 (Fla. Oct. 15, 2010).

Even if aggravated child abuse can only serve as the underlying felony in a felony murder charge if more than one act of abuse led to the child’s death, we would still affirm. The cause of death in this case was blunt force trauma to the head. Although the exact form of abuse was unknown, the trauma was caused by multiple injuries to Amara’s head. Amara also suffered multiple injuries to other parts of her body. Thus, it is clear that more than one act of abuse led to Amara’s death. See Lewis, 34 So. 3d at 187 (finding that more than a single act of abuse led

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to the child’s death based on her injuries and the manner of her death-drowning); Rosa v. State, 2010 WL 2430985, *1 (Fla. 2d DCA June 18, 2010) (finding that more than a single act of abuse led to the child’s death where the child was strangled and had multiple injuries on other parts of his body);Dorsey v. State, 942 So. 2d 983, 985-86 (Fla. 5th DCA 2006) (finding that more than one act of abuse led to the child’s death where the child was shaken to death).

AFFIRMED.

HAWKES, C.J., and ROWE, J., CONCUR.

Not final until disposition of timely filed motion for rehearing.

An Appeal from the Circuit Court for Miami-Dade County, Yvonne Colodny, Judge.

Bill McCollum, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellant.

Emilio de la Cal, for appellee.

Before SUAREZ, ROTHENBERG, and SALTER, JJ.

SALTER, J.

The State of Florida appeals an order suppressing evidence obtained during

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the execution of a duly-issued search warrant. Based upon an evidentiary hearing and findings that (1) the law enforcement officers executing the warrant violated Florida’s “knock-and-announce” statute, section 933.09, Florida Statutes (2009), and (2) no exigent circumstances existed to justify the violation of that statute, the trial court granted the motion to suppress.

The trial court initially denied the motion, concluding that this case was on “all-fours” with Hudson v. Michigan, 547 U.S. 586 (2006).¹ Upon rehearing, however, the defense persuaded the trial court that it was obligated to follow Cable v. State, 18 So. 3d 37 (Fla. 2d DCA), review granted, 22 So. 3d 539 (Fla. 2009). In Cable, our sister district court of appeal concluded that the violation of Florida’s knock-and-announce statute is an independent basis for excluding evidence—a basis that was not displaced or abrogated by Hudson. Cable certified to the Florida Supreme Court a question of great public importance:

IN VIEW OF THE ABROGATION OF THE EXCLUSIONARY RULE FOR FOURTH AMENDMENT KNOCK-AND-ANNOUNCE VIOLATIONS, SHOULD THE JUDICIAL REMEDY OF EXCLUSION OF EVIDENCE BE APPLIED FOR VIOLATIONS OF FLORIDA’S STATUTORY KNOCK-AND-ANNOUNCE PROVISIONS?

Our analysis begins with Article I, section 12, of the Florida Constitution, directing us to analyze rights and remedies relating to searches, seizures, and

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warrants “in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.” Evidence otherwise admissible must be suppressed if and only if it is “inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution.”

Hudson observed that the exclusionary rule previously applied to knock-and-announce violations “was also a command of the Fourth Amendment,” citing Wilson v. Arkansas, 514 U.S. 927 (1995). Applying Article I, section 12 of the Florida Constitution to the rules of law set forth in Hudson and Wilson, we have previously concluded that the exclusionary rule does not apply to a knock-and-announce violation. State v. Brown, 36 So. 3d 770, 775 (Fla. 3d DCA 2010).²

We decline to apply the reasoning in Cable to this case. Cable relies upon a 1964 Florida Supreme Court case, Benefield v. State, 160 So. 2d 706 (Fla. 1964), followed in a 1968 decision of the Second District and a 1973 decision of this Court. Benefield involved evidence obtained from a home without a search or arrest warrant.³ The suspected crime in Benefield was an attempt to commit grand

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larceny (by offering to help a bowling alley secure a liquor license for $5000 in small bills). The Supreme Court found that “the officers did not make the slightest effort to comply with [the knock-and-announce arrest statute, section 901.19(1)].” Id. at 708.

In this case, in contrast, the officers duly obtained a search warrant. The information supporting issuance of the warrant included details regarding the sale of large quantities of cocaine from the subject residence. The officers preparing for the search thus assembled a team of 11 S.W.A.T. members and additional narcotics officers. The officers executing the warrant had to confront and overcome a locked wrought-iron gate at the end of a driveway twenty to thirty feet away from another wrought-iron gate in front of the door to the residence. There was also testimony that an officer continuously yelled “search warrant” as the two exterior gates were knocked down to gain entry. The notion that the S.W.A.T. team should have knocked on the front door after overcoming the successive wrought-iron gates, waited a few more moments, and then asked permission to enter, seems impractical. Section 933.09 refers to “due notice of the officer’s authority and purpose,” and the record in this case (but not in Benefield) contains evidence of at least some efforts to convey that authority and purpose.

Benefield has also been overtaken by important developments in federal and

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Florida constitutional law. Hudson and Wilson have determined that knock-and–announce requirements and violations have their roots in the Fourth Amendment to the U.S. Constitution. The Florida Constitution has directed that we apply U.S. Supreme Court interpretations to questions of admissibility under the Fourth Amendment, and the Florida Supreme Court has consistently done so. See State v. Betz, 815 So. 2d 627 (Fla. 2002); Bernie v. State, 524 So. 2d 988 (Fla. 1988). Our Supreme Court also has declined to apply a judge-made exclusionary rule as a remedy for the violation of a statutory search provision when the statute itself “does not expressly provide for exclusion of evidence as a remedy for a violation of the statute.” Jenkins v. State, 978 So. 2d 116, 128 (Fla. 2008) (finding the exclusionary rule is not a remedy for violation of a “strip search” statute, section 901.211, Florida Statutes (2002)).

Recognizing, however, that the Florida Supreme Court has Cable before it and ripe for decision, we respectfully certify conflict with Cable v. State, 18 So. 3d 37 (Fla. 2d DCA), review granted, 22 So. 3d 539 (Fla. 2009).

Reversed and remanded with directions to vacate the suppression order and to enter an order denying the motion.

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