Didja Know?

10/7/25 – Probation Permission Particularity

A court can make a condition of probation that the defendant must submit to warrantless searches by one’s probation officer. Didja know that this condition can only be to submit to warrantless searches of a probation officer and not law enforcement in general? Per Thompson v. State, 342 So. 3d 841, 842 (Fla. 2d DCA 2022).“even where consent to warrantless searches is a condition of community control or probation, a community control or probation officer or supervisor does not need a reasonable suspicion to conduct a warrantless search. However, any other law enforcement officer can only conduct a warrantless search if the officer has a reasonable suspicion that the defendant on community control or probation is engaged in criminal activity.”

10/6/25 – Cannot Count Containers

The weight of a contraband is often an element of the charge, and one that is used to increase the severity of the charge. Didja know that the container that the contraband is housed in cannot be used to establish this weight element? Per Blair v. State, 384 So. 2d 685, 686 (Fla. 4th DCA 1980), where a portion of the substance introduced by the state as contraband is claimed by the defendant to be non-prohibited matter, it becomes the state’s burden to prove that the weight of the contraband matter alone exceeds the statutory threshold.

10/3/25 – Probation Protections

A probationer sacrifices some of his or her 4th amendment rights. If included as a special condition, a court can require a probation to submit to warrantless searches by one’s probation officer. Moreover, law enforcement may search the defendant’s home upon the lesser standard of reasonable suspicion.  Didja know that while contraband found during a probation officer’s search  can violate the defendant’s probation, it cannot be used to establish reasonable suspicion for a warrantless search by law enforcement nor can it  be used to separately charge the defendant with possession of that contraband? Per Gordon v. State, 1 So. 3d 1117 (Fla. 1st DCA 2009), while contraband discovered during a probationary search by probation officers that is supported by reasonable suspicion may be used as a basis for a new law violation, contraband discovered during a search by the probation officers that is not supported by reasonable suspicion may not be used as a basis for a new law violation.

10/2/25 – Mitigating Minor Misdeeds

Per § 794.021, Fla. Stat., in sex crimes where age is an element, “ignorance of the age is no defense. Neither shall misrepresentation of age by such person nor a bona fide belief that such person is over the specified age be a defense.” However, just because it is not a defense does not mean it cannot be used for mitigation. Per Watson v. State, 46 Fla. L. Weekly D557b (Fla. 5th DCA 2021), While a minor’s consent is not a defense to crimes of a sexual nature, a trial court may impose a downward departure from the sentencing guidelines under such circumstances under section 921.0026(2)(f), which allows a downward departure when the victim was a willing participant.

10/1/25 – Differing Depositions

Per § 90.801(2)(a), Fla. Stat. , “A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is . . . [i]nconsistent with the declarant’s testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition.” this means that such evidence can be used as substantive evidence, not just impeachment. Delgado-Santos v. State, 471 So. 2d 74, 76-77 (Fla. 3d DCA 1985). Didja know that “deposition” in said statute refers only to depositions to perpetuate testimony conducted pursuant to Fla. R. Crim. P. 3.190(j), and does not apply to Discovery Depositions taken pursuant to Fla. R. Crim. P. 3.220(h)? Per Blanton v. State, 978 So. 2d 149, 155 (Fla. 2008), A discovery deposition is not intended as an opportunity to perpetuate testimony for use at trial, is not admissible as substantive evidence at trial, and is only admissible for purposes of impeachment. See also State v. Lopez, 974 So. 2d 340, 347 (Fla. 2008).

9/30/25 – Jurisdiction of Jeopardy

While it is well known that double jeopardy prohibits a trial court from altering a pronounced sentence, obviously a judge can correct themselves if they initially announced the sentence incorrectly. Didja know when the time cut-off is for the judge’s correcting the sentence? Per Hobgood v. State, 166 So. 3d 840, 845 (Fla. 4th DCA 2015), “[w]hen a defendant has not been transferred from the court’s custody to a place of detention at the time his sentences are altered, service of the sentences has not officially commenced, and defendant’s rights are not impinged by the trial court’s timely alteration of his sentences.” Contrapositively,, once the defendant has been transferred from the court to a place of detention, double jeopardy attaches, and it is too late for the court to correct itself. The “place of detention” includes a courthouse holding cell. See Ward v. State, 370 So. 3d 973, 977 (Fla. 4th DCA 2023).

9/29/25 – Final Fundamental Fairness

While a defendant’s failure to object to most jury instructions waives the matter for appeal, didja know that it is fundamental error to not instruct the jury during the final charging on those matters within Jury Instruction 3.7 (Reasonable Doubt, Presumption of Innocence)? See Ramirez v. State, 49 Fla. L. Weekly D1677a (Fla. 4th DCA 2024). This is true even if the court gave these instructions at other parts of the trial.

9/28/25 – Dominating Decisis

A DCA’s opinion is controlling on trial courts within that DCA. However, didja know that if the opinion is not contradicted by another DCA’s opinion, it is controlling on trial courts throughout Florida? Per Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992), in the absence of interdistrict conflict, district court of appeal decisions bind all Florida trial courts. This is because DCAs, when they were created, were intended to be the final appellate courts for most matters, as the FL SC has limited jurisdiction, Whipple v. State, 431 So. 2d 1011 (Fla. 2d DCA 1983).  That said, Pardo applies even on matters where the FL SC has appellate jurisdiction.

9/27/25 – PTC Perfection

Pretrial Conferences, commonly referred to as PTCs, are authorized by Fla. R. Crim. P. 3.220(o). Didja know that the name PTC serves a double purpose in that it perfectly describes the 3 options a defendant has at a PTC? P = Plea; T = Trial; and C = Continuance.

9/26/25 – Defining Disorderly

To sustain conviction for disorderly intoxication, the state must prove that person is intoxicated and that public safety is endangered. Jernigan v. State, 566 So. 2d 39, 40 (Fla. 1st DCA 1990). Didja know that being a general jackass isn’t enough, as to sustain finding of disorderly conduct, there must be evidence of something more than loud or profane language or belligerent attitude?  Miller v. State, 667 So. 2d 325, 328 (Fla. 1st DCA 1995).

9/25/25 – Extremer Than Extreme

For purposes of second degree murder, an act is imminently dangerous to another and evinces a depraved mind when the act is such that: (1) a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and (2) is done from ill will, hatred, spite or an evil intent, and (3) is of such a nature that the act itself indicates an indifference to human life. Jacobson v. State, 248 So. 3d 286, 288 (Fla. 1st DCA 2018). Didja know that extreme recklessness or an impulsive overreaction to an attack or injury is itself insufficient to support a second degree murder conviction? Antoine v. State, 138 So. 3d 1064, 1073 (Fla. 4th DCA 2014).

9/24/25 – Handwriting Help

It is perfectly acceptable for a lay witnesses, subject to certain predicates, to opine on many identification matters, including voice between two samples, Evans v. State, 177 So. 3d 1219 (Fla. 2015),  or identifying a signature, Pittman v. State, 41 So. 385 (Fla. 1906). Moreover, a jury is readily able to make determinations on many comparisons without expert help. Didja know this isn’t true with handwriting? Per Huff v. State, 437 So. 2d 1087 (Fla. 1983), a jury is not competent to make a handwriting comparison without aid of expert testimony.

9/23/25 – Same on Same

As established in Batson v. Kentucky, 476 U.S. 79 (1986), State v. Neil, 457 So. 2d 481 (Fla. 1984), a party, including the defendant, may challenge a peremptory strike on the basis that it was made to exclude a juror because of that juror’s belonging to a cognizable class. Didja know that the defendant can do this, even if the defendant belongs to the same cognizable class as the juror? See Williams v. State, 551 So. 2d 492 (Fla. 1st DCA 1989) (Black defendants are entitled to make Neil Challenges when state uses a peremptory strike against a black juror.).

9/22/25 – Accidental Admission

In Florida, § 90.409 prohibits the admission of evidence as to a party’s offers to pay for an accident or injury as proof of that party’s liability for the accident or injury. Didja know that § 90.409 does not apply in criminal law, and that such offers can be freely used?

9/21/25 – Critical Confrontation

Not all the rules and formalities of trial apply at pretrial hearings, such as the permitting of hearsay in motions to suppress. Didja know that the confrontation clause applies in full force at a motion to suppress? Per State v. Sigerson, 282 So. 2d 649, 651 (Fla. 2d DCA 1973), a hearing on a motion to suppress, while not deciding guilt or innocence of defendant, is a critical stage of prosecution and confrontation clause of Sixth Amendment to United States Constitution guarantees defendant right to confront witnesses against him.

9/20/25 – Instant Off

Having reasonable suspicion allows a cop to temporarily detain an individual. However, once this suspicion is dispelled, law enforcement’s power to detain vanishes. This is true both in the traffic stop and non-traffic stop realm. I think of it as “Star Mario” where when Mario eats a star he now has the power to do something he couldn’t before, which is to touch enemies unharmed. In the criminal law case, it’s when police possess “reasonable suspicion” (or more), they now have the power to do something they couldn’t before, which is to stop someone’s movement. Didja know that just like Star Mario, the power ends instantly? That once the suspicion is satiated (or the purpose for the traffic stop is over) they instantly, not gradually, lose the power? Per Wooden v. State, 244 So. 3d 1170, 1171 (Fla. 1st DCA 2018), there is no de minimis exception to an unlawful detention.

9/19/25 – Baseless Banter

During a traffic stop, officers,  in the name of officer safety and “to get a feel for what’s going on,” may make limited inquiries into travel plans and the like. Didja know that your refusal to answer these questions cannot form the basis of reasonable suspicion? United States v. Fraizer, No. 20-4131, *14 (10th Cir. 2022)(referring to Florida v. Bostick, 501 U.S. 429, 437 (1991); Florida v. Royer, 460 U.S. 491, 498 (1983) (plurality); Brown v. Texas, 443 U.S. 47, 52–53 (1979)).

9/18/25 – Youthful Discretion

Generally speaking, a minimum mandatory sentence preempts a court’s ability to issue a downward departure. Rochester v. State, 140 So. 3d 973, 975 (Fla. 2014). Didja know that there is one notable exception? Per Bennett v. State, 24 So. 3d 693, 693 (Fla. 1st DCA 2009), a trial court has the discretion to impose a youthful offender sentence in lieu of a mandatory minimum sentence under 10/20/Life statute, even though 10/20/Life statute provides for mandatory sentencing.

9/17/25 – Rebuttal Refresh

Generally, rebuttal testimony is permitted to refute a defense theory or to impeach a defense witness. Rimmer v. State, 825 So. 2d 304 , 321-22 (Fla. 2002). Didja know that (1) discovery applies in full force to what the state presents, Hicks v. State, 400 So. 2d 955, 956 (Fla. 1981); and (2)  “the State may not introduce rebuttal evidence to explain or contradict evidence that the State itself offered.” Stoll v. State, 762 So. 2d 870, 875 (Fla. 2000)?

9/16/25 – Custodial Capiases

Have an incarcerated client in a foreign jail, and worried that they might get a capias for failing to show to court? Or be forced to waive whatever meager speedy rights they have? Didja know you can solve your worries by Informing the prosecutor of their whereabouts ASAP? As explained in Pilgrim v. Swanson, 558 So. 2d 176, 176-77 (Fla. 2d DCA 1990), if a defendant is charged in one county but incarcerated in another without the knowledge of the first county, no knowledge is imputed to the first county for purposes of speedy trial rule; thus, defendant is considered “unavailable” for trial in the first county within the meaning of the rule; however, if the charging county has knowledge that the defendant is incarcerated in another county, the defendant is not considered “unavailable” for trial in the charging county. In short, if the prosecutor is aware, it is their duty to get them here. While there is not explicit case law on the matter, the argument would seem to apply for capiases as well (defeating the oft made judicial claim that they absented themselves by getting arrested elsewhere).

9/15/25 – A Reach to Impeach

Unlike the federal rules, Florida’s statute governing impeach by prior convictions (§ 90.610, Fla. Stat), does not limit impeachment by age of conviction. Therefore, even decades old convictions can be used to impeach. Didja know that prior convictions are still subject to a 403 balancing test, where counsel can argue that they are so ancient as to be irrelevant or of a little relevance that is outweighed by the danger of unfair prejudice. State v. Page, 449 So. 2d 813 (Fla. 1984). This is important to know and challenge when deciding whether a defendant with only ancient impeachments will testify.

9/14/25 – Tolerable Tardiness

A defendant is obviously expected to show for court hearings. When their attendance is mandatory and they fail to appear, this can lead to bond revocation. Didja know that merely negligent tardiness cannot sustain a bond revocation? Per Malave v. State, 727 So. 2d 1002 (Fla. 4th DCA 1003), a failure to appear must be willful as opposed to simply negligent to serve as the basis for bond revocation. For instance, in Malave, the 4th DCA found that the confinement and revocation of petitioner’s bond were not warranted by petitioner’s testimony that person with whom he had arranged to give him a ride to court had taken a detour). See also Werner v. State, 740 So. 2d 591 (Fla. 5th DCA 1999)(Defendant could not be found in indirect criminal contempt of court for late appearance caused by breakdown of his automobile); Espinal v. Ryan, 31 So. 3d 818 (Fla. 3d DCA 2010)(Defendant’s arriving 15 minutes late to docket sounding following his first shift at new job did not warrant revocation of bail and incarceration pending prosecution; tardiness was unintentional and de minimus); Prior v. State, 562 So. 2d 864 (Fla. 5th DCA 1990)(Conviction for contempt of court was improper; evidence, at best, demonstrated that defendant was negligent in failing to appear at proper time for trial. The only reasonable inference from the evidence is that appellant was either negligently misled by his secretary/wife concerning when he was expected to appear for trial or that the instructions of the judge’s secretary were misunderstood).

9/13/25 – There is No “Second JOA” Standard

The JOA standard is “whether the State presented competent, substantial evidence to support the verdict. Bush v. State, 295 So. 3d 179, 200 (Fla. 2020)(referring to Tibbs v. State, 397 So. 2d 1120, 1123 (Fla. 1981)). “To apply this standard to a criminal case, an appellate court must ‘view[ ] the evidence in the light most favorable to the State” and, maintaining this perspective, ask whether “a rational trier of fact could have found the existence of the elements of the crime beyond a reasonable doubt.’” Id. (referring to Rogers v. State, 285 So. 3d 872, 891 (Fla. 2019). Didja know that this is the standard through all stages of trial and also post-verdict? This is especially true given that the state cannot use evidence presented during the defendant’s case to satiate its burden. State v. Pennington, 534 So. 2d 393 (Fla. 1988). Some of the confusion comes from that Fla. R. Crim. P. 3.600(a)(2) allows a new trial when the verdict is against the weight of the evidence. Under this standard, the court may not only sufficiency, but may also consider weight (credibility) as well (which it cannot do during a JOA). See Lamb v. State, 124 So. 3d 953 (Fla. 2d DCA 2013).

That said, at the close of the defendant’s case (or the state’s case if such was sufficiently applied by state’s case), a court may consider any burden shifting affirmative defenses the defendant has put forth, and must grant a JOA if under a JOA standard, the state has produced competent, substantial evidence to overcome the burden. See Brown v. State, 454 So. 2d 596, 598 (Fla. 5th DCA 1984)(holding that when the State’s evidence is legally insufficient to rebut the defendant’s testimony establishing the self-defense, the court must grant a motion for dismissal).

9/12/25 – Door Sealed Shut

We all fear opening the door for the state to introduce otherwise inadmissible evidence to explain away any misconceptions we inadvertently created through our questioning. See Hudson v. State, 992 So. 2d 96 (Fla. 2008) (The concept of “opening the door” allows the admission of otherwise inadmissible testimony to qualify, explain, or limit testimony or evidence previously admitted; the concept of “opening the door” is based on considerations of fairness and the truth-seeking function of a trial, as without the fuller explication, the testimony that opened the door would have been incomplete and misleading).

Didja know that you can’t open the door to Confrontation Cause violative testimony? In Hemphill v. New York, 595 U.S. 140 (2022), the Supreme Court held that a defendant’s confrontation clause rights trump any state evidentiary “opening the door” rules. Therefore, no, a defendant cannot open the door to evidence that would otherwise be blocked by the confrontation clause.

9/11/25 – Withhold Wisdom

Section 775.08435, Fla. Stat. sets forth limitations on when adjudication be withheld. Didja know that the question of whether the court is prohibited from withholding adjudication hinges on the number of defendant’s prior withholdings of adjudication, not defendant’s prior charges or conviction. Justice v. State, 313 So. 3d 743 (Fla. 2d DCA 2020). Therefore, there is nothing stopping a defendant who has previously been adjudication guilty one or multiple times from receiving a first withhold under the same conditions that any other defendant could receive a first withhold.

9/10/25 – Interlocutory Limits

Unlike the defense, the state has a statutory right to take an interlocutory appeal. What they can appeal is strictly limited by statute. See § 924.07, Fla. Stat. Didja know that the state can only take one interlocutory appeal per a case? See § 924.07(1)(h)(“The state may appeal from . . . [a]ll other pretrial orders, except that it may not take more than one appeal under this subsection in any case.” (emphasis added).

9/9/25 – One Way Street

We all know that per § 90.404(d)(1), Fla. Stat., the state must file an intent to use Williams Rule evidence at least 10 days prior trial. And we also know (or should know) that we too can use character evidence at trial, known as Reverse Williams Rule evidence. Didja know that, per the statute, the 10 day notice requirement is particular and only applies to the state? That said, if you opt into discovery, you have a duty to disclose anything you will use at trial, including these prior cases. So, best practice is to disclose ahead of time to state, but we are not bout by the 10 day time limit like the state is.

9/8/25 – I’m Positive It’s Dispositive

A defendant pleading to a charge can reserve the right to appeal a motion to suppress, but only if that motion to suppress is dispositive. Vaughn v. State, 711 So. 2d 64 (Fla. 1st DCA 1998). “An issue is dispositive only when it is clear that there will be no trial, regardless of the outcome of the appeal.” Williams v. State, 134 So. 3d 975 (Fla. 1st DCA 2012); § 924.06(3). The state can stipulate that the motion is dispositive at any point prior to the plea being entered. However, what happens if after the parties stipulate that the motion is dispositive, upon appellate review it turns out that it is not dispositive? Didja know this can’t happen?  “[I]n appeals from conditional no contest pleas, stipulations of dispositiveness are binding on the appellate court.” Churchill v. State, 219 So. 3d 14, 18 (Fla. 2017).

9/7/25 – Sundry Starts

Didja know that Florida law contains five different definitions of when a criminal trial starts? For Speedy Trial purposes, “[t]he trial is considered to have commenced when the trial jury panel for that specific trial is sworn for voir dire examination or, on waiver of a jury trial, when the trial proceedings begin before the judge.” Fla. R. Crim. P. 3.191(c). For Double Jeopardy purposes, in a jury trial, “[j]eopardy attaches . . . when the jury is impaneled and sworn[,]” Thomason v. State, 620 So. 2d 1234, 1236 (Fla. 1993), and “[i]n a nonjury trial, jeopardy commences at a point where presentation of proof begins, i. e., when court begins to hear evidence, State v. Bernard, 254 So. 2d 38 (Fla. 3d DCA 1971). Finally, in terms of the defendant’s right to be present (meaning, when a trial can continue after a defendant voluntarily absents himself), “a trial is considered commenced when the first prospective juror enters the courtroom.” Hillsman v. State, 159 So. 3d 415, 419 (Fla. 4th DCA 2015). Referring to Fla. R. Crim. P. 3.180(c).

9/6/25 – Resisting Reality

In the crime of Resisting an Officer Without Violence, one of the elements is that the officer whose order was not heeded was acting in lawful performance of his duties. C.E.L. v. State, 24 So. 3d 1181, 1185-86  (Fla. 2009). Therefore, a defense to the charge when the accusation is that defendant was resisting a warrantless arrest, is that the arrest was not lawful. Phillips v. State, 314 So. 2d 619, 620 (Fla. 4th DCA 1975). Didja know that, there is no “good faith” exception here, as a police officers’ opinion regarding propriety of arrest is irrelevant in prosecution for resisting arrest without violence. Royster v. State, 643 So. 2d 61, 65 (Fla. 1st DCA 1994).

9/5/25 – The Core Four

Generally speaking, an attorney need not require counsel to obtain the defendant’s consent to every tactical decision, an attorney has authority to manage most aspects of the defense without obtaining his client’s approval. Taylor v. Illinois, 484 U.S. 400, 417–418 (1988). Didja know that there are only 4 things that the client has absolute final say over? They are: whether to (1) plead guilty, (2) waive a jury, (3) testify in his or her own behalf, or (4) take an appeal. Jones v. Barnes, 463 U.S. 745, 751 (1983). Concerning those four decisions, an attorney must both consult with the defendant and obtain consent to the recommended course of action. Florida v. Nixon, 543 U.S. 175, 187 (2004).

Since they are not part of the “core four,” an attorney may waive without consulting a client or over a client’s express wishes (1) waive speedy, McKenzie v. State, 153 So. 3d 867 (Fla. 2014), on reh’g (Dec. 11, 2014), and (2) continue the case, Randall v. State, 938 So. 2d 542 (Fla. 1st DCA 2006).

9/4/25 – High Crime Hijinks

Too often, cops come in to court and declare where the event took place to be a “high crime area” ipso facto. Didja know that is that this declaration is insufficient without supporting testimony? Per State v. Winter, 108 So. 3d 729 (Fla. 5th DCA 2013), an officer’s testimony as to an area being a high crime area must be established by facts about the area, such as the number of arrests, types of crimes, etc. This is especially important as State v. Simpson, 50 Fla. L. Weekly D1195a (Fla. 6th DCA 2025), makes the plain smell of raw cannabis in a high crime area sufficient to establish a stop / vehicle search.

9/3/25 – Perempting Piety

Despite several cases establishing that religions are a cognizable class for Neil challenge purposes (Jews, Joseph v. State, 636 So. 2d 777 (Fla. 3d DCA 1994); Muslims; Olibrices v. State, 929 So. 2d 1176  (Fla. 4th DCA 2006)), didja know that the matter is not as settled as one would think? While State v. Neil, 457 So. 2d 481 (Fla. 1984), is the case that established the prohibition on peremptory challenges of a juror for their membership in a protected class, Batson v. Kentucky, 476 U.S. 79 (1986), is the case that started it all. As made clear in State v. Pacchiana, 289 So. 3d 857 (Fla. 2020), Batson has never been extended to religion. In Pacchiana, the prosecutor explicitly struck a juror for being a Jehovah’s Witness, stating it would be malpractice to let one on the jury. While Pacchiana was decided on “lack of preservation” grounds, both the opinion and dissent indicated that it is not settled in Florida whether Neil challenges extend to religion.

9/2/25 – Delayed Dismissal

While the right to backstrike is well known, the temporal limitations for backstriking are less known. Defendants have an unfettered right to backstroke a juror prior to the jury being sworn, Jackson v. State, 464 So. 2d 1181, 1183 (Fla. 1985), and a court’s denial of such is reversible error, Gilliam v. State, 514 So. 2d 1098, 1099 (Fla. 1987). didja know that the court can permit backstriking up until the presentation of evidence? Fla. R. Crim. P. 3.310 (“The state or defendant may challenge an individual prospective juror before the juror is sworn to try the cause; except that the court may, for good cause, permit a challenge to be made after the juror is sworn, but before any evidence is presented.”)

9/1/25 – Ghost Impeachment

Didja know you can impeach witnesses who don’t even testify? Even with their prior convictions? Per § 90.806, any non-testifying hearsay declarant can be impeached by the opposing party to the same extent as if they testified at trial. Therefore, any hearsay declarant can be impeached with their prior impeachable felonies. The proper procedure is established in Huggins v. State, 889 So. 2d 743, 754 (Fla. 2004), and requires the party to have the court take judicial notice of the convictions, and then the court is to read out the number of felonies and crimes of dishonesty to the jury. This, by the way, is the basis for why the state is allowed to get in the impeachable convictions of a non-testifying defendant who elicited his or her own exculpatory statements via rule of completeness (or any other method): in that instance, the defendant is a non-testifying declarant of those statements. See Gudmestad v. State, 209 So. 3d 602, 605 (Fla. 3d DCA 2016) (Under statute governing attacking and supporting credibility of a hearsay declarant, a hearsay declarant is treated as a witness, and his or her credibility may be attacked in the same manner as any other witness’s credibility).

8/31/25 – Can’t Comment on Client Cringe

Of course our clients are in full view of the jury during trial as they sit next to us, and the jury can see every cringe inducing reaction they make to testimony. However, it would be great if the state weren’t allowed to highlight such and remind the jury during closing. Didja know it’s the law that they can’t? Per Rodriguez v. State, 609 So. 2d 493, 501 (Fla. 1992), “The defendant’s demeanor off the witness stand is not a proper subject for argument and in some cases may be unduly prejudicial.”

8/30/25 – Free Falling

One seldom used rule is Fla. R. Crim. P. 3.620, which allows the court after the verdict to reduce a conviction to a lesser degree or lesser included offense. Didja know that the court’s grant of such a motion is unappealable by the state. Exposito v. State, 891 So. 2d 525 (Fla. 2004). Unlike a JOA, this is still unappealable even though / when it is granted post-verdict.

8/29/25 – Weightless Words

As officers of the court, our words as lawyers have value. But the “value” is limited, and are not evidence. Didja know that trial judges cannot rely upon an attorney’s unsworn statements as the basis for making factual determinations? Griffin v. State, 344 So. 3d 623 (Fla. 2d DCA 2022); H.K. Dev., LLC v. Greer, 32 So. 3d 178, 181 n.4 (Fla. 1st DCA 2010); State v. Brugman, 588 So. 2d 279, 279 (Fla. 2d DCA 1991). Or as put in Smith v. Smith, 64 So. 3d 169, 171 (Fla. 4th DCA 2011)(quoting Leon Shaffer Golnick Adver, Inc. v. Cedar, 423 So. 2d 1015 (Fla. 4th DCA 1982)), “If the advocate wishes to establish a fact, he must provide sworn testimony through witnesses other than himself or a stipulation to which his opponent agrees.” I would note that the attorney cannot be sworn in, per Fla. Bar Code Prof. Resp. 4-3.7(a).

8/28/25 – Withhold Wildcard (h/t Andrew Reath)

Despite what many believe, § 775.08435 isn’t the end of the story when it comes to withholding adjudication. Didja know that while that statute would normally limit the court’s ability to grant a second (third, or fourth) withhold, § 948.20, the drug offender probation statute, trumps it? Per State v. Dhaiti, 329 So. 3d 154 (Fla. 4th DCA 2021), § 948.20, which allows a court to withhold adjudication when placing a defendant on drug offender probation, controls over § 775.08435. BTW, this case is a great read for understanding when one statute trumps another.

8/27/25 – Cure for the “Correspondence” Cringe

We all fret seeing the “Correspondence” docket entry in our case files. But here is something that will have you fretting a little less. As we all know, a defendant’s statements made in connection with a plea negotiation are inadmissible against the defendant. Fla. R. Crim. P. 3.172(i). Didja know that letters written from defendant to a judge admitting guilt and requesting leniency are inadmissible plea negotiations? Ryerson v. State, 306 So. 3d 352 (Fla. 3d DCA 2020). Granted, the state will still now be privy to any disclosed information. But you need not fear their contents being used at trial.

8/26/25 – Vehement Voir Dire 

Are you as antsy to get going during voir dire as I am? Do you want to make the first impression on the venire instead of just sitting there for hours while the state drones on? Didja know that here is no rule establishing that the state goes first? Instead, per Fla. R. Crim. P. 3.300(b), “The order in which the parties may examine each juror shall be determined by the court.” You have every right to ask the court to go first (but the court also has every right to tell you that you can’t).

8/25/25 – Perjuring Police; Dishonest Deputies; Lying LEO

Do you have a credibility motion to suppress where your entire claim is that the officer is lying? Afraid that the judge does not have the power to disbelieve an officer? Don’t be. Didja know that a judge acting as fact-finder is not required to believe the testimony of police officers in a suppression hearing? Lewis v. State, 979 So. 2d 1197, 1200 (Fla. 4th DCA 2008). This is true even when that is the only evidence presented; just as a jury may disbelieve evidence presented by the state even if it is uncontradicted, so too the judge may disbelieve the only evidence offered in a suppression hearing.

8/24/25 – Peeing isn’t Prurient

Ever realllllllllllllllly need to go, but there’s no toilet anywhere to be seen, and you are afraid resorting to a makeshift one will render you a sex offender? Didja know that is just an urban legend? As established in Durant v. State, 647 So. 2d 163, 163 (Fla. 2d DCA 1994)., the act of urinating in public does not by itself constitute lewd or lascivious act. 

8/23/25 – The State Has the Duty to Remain Silent

During voir dire, each side has the right to explain pertinent legal topics, even if the court has already discussed them with the venire. Mendez v. State, 898 So. 2d 1141 (Fla. 5th DCA 2005). While this right applies equally to the defense and state, there is one difference. Didja know that given the topic’s sensitivity, the defendant has the absolute right to be the first to discuss the defendant’s right to remain silent? Varona v. State, 674 So. 2d 823 (Fla. 4th DCA 1996).

8/22/25 – Want not Wisdom

When a defendant wishes to represent themselves, the court must conduct a Faretta Inquiry. The sole purpose of the inquiry is to determine whether the defendant is making a free and voluntary choice to in choosing to represent themselves. Didja know that the defendant’s capability to effectively do so is only pertinent in determining whether the choice is knowing and voluntary? In short, a court cannot deny a defendant’s request to represent themselves on the basis they would do a piss poor job. This was all established by the Florida Supreme Court in  Noetzel v. State, 328 So. 3d 933 (Fla. 2021). See also Bowen v. State, 677 So. 2d 863, 865 (Fla. 2d DCA 1996), approved, 698 So. 2d 248 (Fla. 1997)(referring to United States v. Arlt, 41 F.3d 516, 518 (9th Cir.1994))(“Indeed, the Supreme Court’s decision in Godinez explicitly forbids any attempt to measure a defendant’s competency to waive the right to counsel by evaluating his ability to represent himself.”)