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Florida Third District Court Of Appeal – Criminal Headnotes – July 26, 2017

ROBERTO SUAREZ LOPEZ V. STATE OF FLORIDA – DETENTION OF PASSENGER AT TRAFFIC STOP – MOTION TO SUPPRESS

Direct appeal from conviction of possession of cocaine with intent to deliver, tampering with evidence, and resisting an officer without violence. The trial court denied the defendant’s motion to suppress evidence recovered after he had attempted to flee a traffic stop. The defendant entered a negotiated plea, reserving the right to appeal the denial of the motion.

The defendant had been a passenger in the vehicle. The officer had instructed him to exit and stand to the rear of the vehicle. As the driver was exiting the vehicle, the defendant attempted to flee. On appeal, the defendant argues he should have been free to leave unless the officer had a reasonable suspicion of criminal activity.

The appeals court affirms, citing Brendlin v. California, 551 U.S. 249 (2007), and Arizona v. Johnson, 555 U.S. 323 (2009), each holding an officer may detain all occupants of a vehicle pending inquiry into a vehicular violation, if the underlying stop is itself lawful.

The court also cites decisions of two other Florida appeals court decisions, Presley v. State, 204 So. 3d 84 (Fla. 1st DCA 2016) (review granted, SC16-2089, oral argument held June 7, 2017), and Aguiar v. State, 199 So. 3d 920 (Fla. 5th DCA 2016), to the same effect, and declines to follow Wilson v. State, 734 So. 2d 1107 (Fla. 4th DCA 1999), to the contrary, as it was decided prior to Brendlin and Johnson.

PRINCE ROY SECONG V. STATE OF FLORIDA – UPWARD DEPARTURE SENTENCE; GENERAL SENTENCE ON MULTIPLE SEPARATE COUNTS

Appeal from denial of motion to correct sentencing error, making an upward departure without written findings as required by section 775.082(10) Fla. Stat.

The appeals court finds no error in the upward departure based on violations of the community control sentence initially imposed. The trial court did enter written findings in denying the motion to correct.

However, the court vacates the general sentence on multiple counts of uttering worthless checks and remands for resentencing separately on each count.

HUGO MONTERO V. STATE OF FLORIDA – EVIDENCE OF INTENT FOR AGGRAVATED BATTERY WITH INTENT TO CAUSE GREAT BODILY HARM – SUFFICIENCY OF EVIDENCE

Direct appeal from conviction of aggravated battery. The defendant argues the trial court erred in denying his motion for judgment of acquittal on the ground the state had failed to prove he intended to cause “great bodily harm or permanent disability” when he punched a nightclub manager in the back of the head.

The appeals court finds there was sufficient evidence to support a jury finding of intent, including the fact the defendant had threatened to kill the victim only moments before striking him, causing him fall, and ultimately leading to permanent brain damage.