Criminal Law – Adult Sexual Violence Cases
January 2017
Florida Supreme Court
No new cases reported.
First District Court of Appeal
No new cases reported.
Second District Court of Appeal
No new cases reported.
Third District Court of Appeal
No new cases reported.
Fourth District Court of Appeal
Robinson v. State, 2017 WL 33709 (Fla. 4th DCA 2017). INFLAMMATORY LANGUAGE IN
CLOSING ARGUMENT IS IMPERMISSIBLE; WHETHER IT RISES TO FUNDAMENTAL ERROR A
QUESTION OF THE FACTS OF THE CASE. Defendant appealed the trial court's verdict finding him
guilty of three counts of committing sexual battery on a child between twelve and eighteen
years of age, claiming that the State committed fundamental error in its closing argument.
"[F]undamental error in closing argument occurs when the prejudicial conduct, in its collective
import, is so extensive that its influence pervades in trial, gravely impairing a calm and
dispassionate consideration of the evidence and the merits by the jury." Capron v. State, 948
So. 2d 954, 956-57 (Fla. 5th DCA 2007). The appellate court held that, while the State did use
inflammatory language multiple times in the closing argument, in light of the overwhelming
evidence of Appellant being guilty of the charges filed against him, the prosecutor's statements
were not prejudicial enough to "snatch defeat from the jaws of victory."
January 4, 2017.
Fifth District Court of Appeal
Hardy v. State, 2017 WL 239406 (Fla. 5th DCA 2017). FOR SEXUAL PREDATOR DESIGNATION,
THE PREDICATER PRIOR FELONY MUST BE ENTERED BEFORE THE CURRENT FELONY IS
COMMITTED. The defendant was arrested in Brevard County for procuring a person under age
18 for prostitution, a second-degree felony, in violation of § 796.03, F.S. Six months later, he
was arrested in Orange County for a separate commission of the same offense. The defendant
entered a plea and received 5-years’ probation for the Orange County offense. After this, he
entered a plea to the Brevard County case, was placed on probation for ten years, and was
designated a sexual predator. The trial court used the Orange County conviction as the
predicate prior conviction for the sexual predator designation, concluding the date of
sentencing was controlling. The appellate court held that for sexual predator designation, the
conviction and sentence on the predicate prior felony must be entered before the current
felony is committed. Reversed and remanded to strike the sexual predator designation.
January 20, 2017.
Griffith v. State, 2017 WL 127644 (Fla. 5th DCA 2017). DOUBLE JEOPARDY NOT VIOLATED
WHEN THE CRIMINAL OFFENSES ARE BASED ON TWO SEPARATE ACTS. After entering a nolo
contendere plea to a six-count information, the defendant appealed his judgments and
sentences for one count of soliciting a child for unlawful sexual conduct using computer
services or devices (count 1), and one count of traveling to meet a minor for illegal sexual
conduct (count 2). The defendant contended that these two convictions violate the prohibition
against double jeopardy. The appellate court concluded that the defendant’s actions on
February 3rd and February 4th were separate and distinct. Here, by the end of their
conversation on February 3rd, the defendant and "Kelly" (an undercover police officer) had a
tentative agreement to meet the following Friday. That plan changed the next day when, after
engaging in additional sexual exchanges, they agreed to meet that afternoon. Thus, the
defendant solicited "Kelly" on February 3rd to meet a few days later, but solicited her again and
traveled on February 4th. The fact that he referenced the February 3rd conversation on
February 4th did not transform the actions into one continuous criminal act. His actions were
not part of the "same conduct," and thus did not violate Double Jeopardy.
January 13, 2017.
Bess v. State, 2017 WL 127646 (Fla. 5th DCA 2017). FAILURE TO LIST WITNESS AND FAILURE TO
HOLD RICHARDSON HEARING MAY RESULT IN REVERSIBLE ERROR. The defendant appealed his
judgment and sentence, entered by the trial court after a jury found him guilty of committing a
lewd or lascivious battery. During the trial, a nurse practitioner offered expert opinion
testimony establishing that the lack of vaginal injury is not unusual in rape cases. However, the
State did not list her as a witness during discovery. When this occurs, the court is required to
hold a Richardson hearing to determine whether the State's failure prejudiced the defendant.
The appellate court held that it was not certain that, beyond a reasonable doubt, the defendant
was not procedurally prejudiced by the State's discovery violation. Since the defendant's theory
of the case was that the lack of injury to the victim's vagina proved that a crime did not occur,
which was directly addressed by the nurse practitioner, there is a reasonable possibility that the
discovery violation materially hindered the defendant's trial preparation and/or strategy.
Accordingly, the appellate court reversed and remanded for a new trial.
January 13, 2017.