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Florida Third District Court Of Appeal – Criminal Headnotes – August 16, 2017

JOHNATHAN SIMON V. STATE OF FLORIDA – NO FUNDAMENTAL ERROR IN “BOLSTERING” OF DNA EXPERT TESTIMONY

Direct appeal from convictions and life sentences for first-degree murder and attempted first-degree murder. Appeals court finds no fundamental error in DNA expert “bolstering” her testimony by referring to technical review of results by another analyst. Ultimately, the DNA evidence did not support the identification of the defendant, which instead depended on testimony of multiple eyewitnesses.

Affirmed.

EMILIANO E. NORIEGA V. STATE OF FLORIDA – NO FUNDAMENTAL ERROR IN PROSECUTOR’S CLOSING ARGUMENT

Direct appeal from conviction for trespassing. Appeals court finds no fundamental error in prosecutor’s statements in closing argument, to which defendant did not object. Noting the defendant’s theory of the case advanced in opening argument was not supported by evidence is proper argument, and asking the jury to determine “what is true” does not shift the burden of proof.

Affirmed.

FRANK ORTIZ V. STATE OF FLORIDA – INEFFECTIVE ASSISTANCE OF COUNSEL – ADVICE CONCERNING COLLATERAL CONSEQUENCES OF NEGOTIATED PLEA – FAILURE TO INTRODUCE MITIGATING EVIDENCE AT SENTENCING

Appeal from denial of motion for post-conviction relief alleging ineffective assistance of counsel. Failure to advise the defendant of possible collateral consequences of a negotiated plea with respect to “gain time” and conditional release is not the same as providing misinformation. The defendant was not prejudiced by counsel’s failure to introduce mitigating evidence at sentencing hearing, as it would not have affected the outcome.

Affirmed.

ANTHONY WILLARD JOHNSON V. STATE OF FLORIDA – INVOLUNTARY PLEA – CONCURRENT VERSUS CONSECUTIVE SENTENCES

Appeal from denial of motion for post-conviction relief alleging the defendant had entered into a plea agreement without full understanding of potential ramifications. The plea agreement expressly stated that the recommendation that state and federal sentences be served concurrently rather than consecutively might not be accepted by state department of corrections and/or the federal bureau of prisons, and the defendant expressly acknowledged this in the plea colloquy.

Affirmed.