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Florida Third District Court of Appeal - Criminal Headnotes | December 13, 2017

Florida Third District Court of Appeal – Criminal Headnotes – December 13, 2017

JOSEPH CHANEY V. STATE OF FLORIDA – APPEAL FROM SENTENCING FOR PROBATION VIOLATION; NOTICE OF CONDITIONS OF PROBATION; VFOSC

Direct appeal from sentencing on guilty pleas to violating terms of two probation orders. The first order related to a crime committed prior to enactment of that portion of section 948.06 of the Florida statutes providing for enhanced sentencing of "violent felony offenders of special concern" (VFOSC). The state was unable to produce a transcript of the sentencing proceeding giving rise to the two orders, nor any evidence that the defendant had been given notice of the conditions of probation under the second order. The defendant pleaded guilty to both, reserving the right to appeal the sentence under the second order.

The appeals court determined the state could not make a case under the second probation order even if a transcript of the sentencing proceeding could be found, as there was no evidence that the defendant had received written notice of the conditions of probation under the second order.

The court vacated the guilty plea with respect to the second probation order and remanded with instructions to resentence the defendant with respect to the first order only.

STATE OF FLORIDA V. MAJOR LUNDY – APPEAL FROM ACQUITTAL AFTER MISTRIAL

Appeal by state from order granting the defendant's motion for a judgment of acquittal following a mistrial.

The appeals court noted that section 924.07 of the Florida statutes allows the state to appeal a judgment of acquittal only "after a jury verdict," so as not to place the defendant in double jeopardy. Since there was no verdict here, the jury having deadlocked, the state had no statutory right to appeal.

Dismissed for lack of jurisdiction.

TORINO ANTWAN BENTLEY V. STATE OF FLORIDA – STATUTORY RAPE; EVIDENCE OF VICTIM'S PRIOR SEXUAL HISTORY EXCLUDED

Direct appeal from conviction and sentencing for sexual activity with a child between ages 12 and 16. The defendant argued the trial court had erred in precluding evidence that the victim had previously engaged in consensual sexual activity with others (as a victim of human trafficking) and had herself initiated the activity with the defendant.

The appeals court rejected this argument, noting that neither consent nor a mistaken belief as to the victim's age is a defense to the crime charged.

Affirmed.

THOMAS GARRARD BURTON V. STATE OF FLORIDA – ADMISSIBILITY OF VIDEOTAPED CONFESSION

Direct appeal from conviction of first-degree murder and mandatory life sentence. The defendant argued the trial court had erred in admitting into evidence a videotaped confession, showing the defendant in prison garb and shackles.

The appeals court agreed with the trial court that the probative value of the videotape outweighed any prejudice to the defendant.

The tape showed the defendant in what could be mistaken for civilian clothing, sitting at a table in what appeared to be a conference room. The fact that he was handcuffed was not nearly as prejudicial, the court said, as if he had appeared in shackles in the courtroom itself. The visual element of the tape was essential to the jury, the court said, in assessing the reliability of the confession -- in which the defendant claimed it was the other perpetrator, not himself, who had actually fired the gun.

Affirmed.