5DCA: New Trial for Traveling to Meet a Minor

“Appellant, John Houston Oyler, was convicted of use of a computer to lure a minor to commit unlawful sexual conduct, traveling to meet the minor for the same illicit purpose and use of a two-way communication device to commit a felony. Determining that it was error to deny Appellant an entrapment instruction, we reverse and remand for a new trial.”

Oyler v. State, 5D14-307 (Fla. 5th DCA Feb. 5, 2015)

http://www.5dca.org/Opinions/Opin2015/020215/5D14-307.op.pdf

St Johns Judge Zambrano

Nancy Ryan, APD Daytona

DEFENSE COUNSEL TOM BELL (Congrats!)

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5DCA: Discharge for Non-Existent Crime

Appealing a conviction for a lewd act upon a child which was alleged to be in violation of Fla. Stat. 800.04(1), the defendant contended, and the state conceded, that it was fundamental error because the information neither referenced a statute that established a crime nor set forth the essential elements of any crime.  Rejecting the State’s argument that a new trial was appropriate, the appropriate remedy was for the Defendant to be DISCHARGED.

Cobb v. State, 5D13-4432 (Fla. 5th DCA Jan. 30, 2015)

http://www.5dca.org/Opinions/Opin2015/012615/5D13-4432.op.pdf

Orange Judge Johnson

5DCA: Insufficient Evidence of Petit Theft

A trial court errs by denying a motion for dismissal on a charge of petit theft where the only evidence linking the defendant to the theft was a witness who testified that she observed, out of the corner of her eye, the defendant pass an object to a person who was ultimately found to be in possession of a stolen iPod but admitted that she could not identify the object.

C.B. v. State, 5D14-712 (Fla. 5th DCA Jan. 9, 2015)

http://www.5dca.org/Opinions/Opin2015/010515/5D14-712.op.pdf

Orange Judge Rodriguez

5DCA: Authority to enforce mandate in DL suspension appeal

On first-tier review, the circuit court made the determination that the evidence to support a driver’s license suspension was lacking. On review, the Fifth District allowed that decision to stand. After the mandate issued, the circuit court simply enforced its mandate.  Contrary to the Department’s argument that a new hearing was required “when the evidence is lacking because of the unexcused failure of [the Department] to present sufficient proof”, a reviewing court on first-tier certiorari review has the inherent authority to enforce its mandate.

DHSMV v. Azbell, 5D14-838 (Fla. 5th DCA Jan. 2, 2015)

http://www.5dca.org/Opinions/Opin2014/122914/5D14-838.op.pdf

Volusia Judge Parson

Michael Lambert for Respondent

5DCA: Cumulative Effect of Improper Prosecutorial Comment

Reversing and remanding for a new trial a conviction for felony battery, the cumulative effect of the State’s improper comments in both opening and closing argument deprived the defendant of a fair trial.  (5DCA quotes almost 7 pages of argument about a domestic violence complainant.)

Brinson v. State, 5D14-653 (Fla. 5th DCA Jan. 2, 2015)

http://www.5dca.org/Opinions/Opin2014/122914/5D14-653.op.pdf

Volusia Judge Hutcheson

Robert Wildridge, APD