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Florida Third District Court Of Appeal – Criminal Headnotes – May 10, 2017

ROLLIN MONESTIME V. STATE OF FLORIDA — UNTIMELY MOTION FOR RETURN OF SEIZED PROPERTY

The trial court did not err in denying a motion under section 705.105, Florida Statutes (2016) to return $738,408 seized as evidence in movant’s trial, ten years ago, for trafficking and money laundering. Previous decisions from two other appellate districts have construed the statute to require that the motion be filed within 60 days after issuance of the appeals court’s mandate on a direct appeal of the conviction. Affirmed.

IBES GOMEZ V. STATE OF FLORIDA — CONVICTION FOR ORGANIZED FRAUD AND GRAND THEFT VIOLATES PROHIBITION AGAINST DOUBLE JEOPARDY

The defendant entered an open plea of guilty to charges in five separate cases, but appealed convictions in three, arguing double jeopardy. The appeals court reversed and remanded as to convictions in two cases, both for organized fraud and grand theft, as these “require[d] identical elements of proof,” per section 775.021, Florida Statutes, which codifies the rule in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Rather than allow the State on remand to choose which offense to treat as the “lesser included,” the appeals court, citing Pizzo v. State, 945 So.2d 1203 (Fla. 2006), vacated the convictions for grand theft and remanded for rescoring and resentencing on the organized fraud convictions alone.

STEVE GORDON V. STATE OF FLORIDA — NO ERROR IN REFUSING “COMPOUND OFFENSE” INSTRUCTION FOR LESSER INCLUDED OFFENSES

The trial court did not err in denying the defendant’s request for a “compound offense” instruction submitting theft and assault or theft and battery as lesser included offenses to strongarm robbery, where there was no evidence the act of force was not “in the course of the taking.” The appeals court certified a conflict on this point with the decision in Stuckey v. State, 972 So.2d 918 (Fla.App. 5th 2007), review denied, 980 So.2d. 491 (Fla. 2008), which required a “compound offense” instruction where lesser offenses are merged into the greater. Remanded for entry of a written order consistent with the oral finding the defendant was competent to stand trial.

KING KNIGHT V. STATE OF FLORIDA — OBJECTION TO VICTIM TESTIMONY AS UNFAIRLY PREJUDICIAL NOT PRESERVED, ERROR NOT FUNDAMENTAL

Defense counsel’s objection on the ground of relevance to victim’s testimony she suffered psychological harm from sexual battery did not preserve an objection on the ground of unfair prejudice. Any error was thus reviewable only for fundamental error. Affirmed.