Public records request after death warrant
A death row inmate who comes under a death warrant has no legal right to demand public records from agencies from which he did not seek public records before the death warrant was signed, the Florida Supreme Court said. While under a death warrant, Terry Sims sent public records requests to a number of agencies and individuals. The state argued that Sims' requests for production of public records was overbroad because he failed to demonstrate that he had "previously" requested public records from these agencies and individuals, as required by Florida Rule of Criminal Procedure 3.852(h)(3). The Supreme Court agreed, concluding that Sims was not entitled to seek public records from a large number of agencies when he had not previously requested records from them. "The language of section 119.19 and of rule 3.852 clearly provides for the production of public records after the governor has signed a death warrant. However, it is equally clear that this discovery tool is not intended to be a procedure authorizing a fishing expedition for records unrelated to a colorable claim for post-conviction relief. To prevent such a fishing expedition, the statute and the rule provide for the production of public records from persons and agencies who were the recipients of a public records request at the time the defendant began his or her post-conviction odyssey," the unanimous court said in an unsigned opinion.
Assistant Attorneys General Judy Taylor Rush and Kenneth S. Nunnelley represented the state on appeal.
[Sims vs. State, 2/8/00]

2ND DISTRICT COURT OF APPEAL

Motion to suppress
A defendant and his vehicle are subject to being searched if he drives onto premises identified in a warrant as the area to be searched, the 2nd DCA said. Richard Lowe appealed his drug convictions, asserting that the state failed to meet its burden of proof to justify the searches within the meaning of the Fourth Amendment. Lowe contended that officers had no reason to believe he had engaged in criminal activity to justify their search of his vehicle. The DCA disagreed. "(B)ecause the officers were legally entitled to search Lowe's vehicle pursuant to the warrant, the search of Lowe's person was transformed into a valid search pursuant to the 'inevitable discovery' doctrine. Evidence that is obtained pursuant to unconstitutional police procedures may still be admissible if it is shown that the evidence would ultimately have been discovered by legal means. Once the deputies searched Lowe's vehicle and found the cannabis, they were authorized to search Lowe's person pursuant to the 'search incident to arrest' exception. The methamphetamine would have then been discovered," the DCA said. In a dissenting opinion, Acting Chief Judge Blue wrote, "There is nothing within the probable cause affidavit or the testimony of the officers who procured the affidavit that would constitute probable cause for the search of vehicles which are driven onto the property during the search. I would compare this to a 'search-all-persons' warrant, which requires evidence be presented to the issuing magistrate supporting the search of anyone in the described home."
Assistant Attorney General Helene S. Parnes represented the state on appeal.
[Lowe vs. State, 2/11/00]

Vulgar state office environment
A fired state beverage agent is entitled to her old job with back pay because she sufficiently showed that the agency condoned the kind of vulgar and sexually explicit workplace language that led to her firing, the 1st DCA said. The supervisor, a sergeant with the Division of Alcoholic Beverages and Tobacco, was fired for lying to an internal investigator when she denied using inappropriate language at the agency's Jacksonville office. In an earlier ruling, the DCA said the sergeant should have been given the opportunity to raise a condonation defense to show that the agency allowed the questioned language and she did not lie when she denied using improper language because it was common squad room language. On remand, the Public Employees Relations Commission upheld a one-week suspension for the sergeant's comments to a trainee, but otherwise said she should be reinstated with back pay, benefits and attorney's fees and costs. The DCA said the beverage agency did not establish that it had disciplined or warned its employees about their conduct, effectively condoning the behavior. Concurring specially, Judge Miner raised serious concerns about the workplace behavior involved in the case. "The unbecoming conduct for which the appellee was sanctioned was just that and the fact that others in her state workplace used the same offensive language and engaged in the same goings-on for which she was called on the carpet, speaks volumes about an uncontrolled work environment," he wrote. "(A)s they say, there is a time and place for everything and the foul language and the preoccupation with sexual matters described in the record and openly expressed in mixed company on an almost daily basis might be expected at a Tail Hook reunion, perhaps, or a men's locker room somewhere. But, this kind of conduct in the workday world of a state office is, if nothing more, the stuff upon which sexual harassment claims against the state are founded."
[Department of Business and Professional Regulation vs. Doyle, 2/4/00]

Invalid search warrant
If police officers have probable cause to search a truck, the lawful seizure of evidence from the truck is not dependent on the validity of a warrant, the 1st DCA said. Alvin Mylock appealed the denial of his motion to suppress evidence seized pursuant to a search warrant. Mylock argued that the search warrant was not based on a sworn affidavit as expressly required by the Florida Constitution and sections 933.06 and 933.18(10), F.S. The DCA agreed that the search warrant was invalidly issued without a supporting affidavit. However, because police had probable cause to search Mylock's truck without a warrant under the so-called "automobile exception" to the warrant requirement, the motion to suppress was properly denied, the DCA said.
Assistant Attorney General Edward C. Hill Jr. represented the state on appeal
[Mylock vs. State, 1/27/00]

3RD DISTRICT COURT OF APPEAL

Probable cause - blood alcohol test
An officer must have probable cause to believe that an individual involved in a serious motor vehicle accident was under the influence of alcohol before he can order the person to submit to a blood alcohol test, the 3rd DCA said. The state appealed an order suppressing the results of a blood alcohol test administered to Debra Webb after she was involved in an automobile accident causing serious bodily injury to another motorist. "Although the accident in this case resulted in serious bodily injuries there is absolutely no evidence in the record before us that the officer who ordered the blood to be drawn from the appellee had any probable cause to believe that she was under the influence of an alcoholic beverage, chemical or controlling substance at the time of the accident," the DCA said.
[Assistant Attorney General Roberta G. Mandel represented the state on appeal.]

Stay of driver license suspension
The circuit court erred by entering an order staying the suspension of Bernard Olivie's driver license pending the outcome of certiorari review of the Department of Highway Safety and Motor Vehicle's administrative suspension of Olivie's driver license for his refusal to submit to a breath, blood or urine test to pursuant to s. 322.2615, Florida Statutes. The 3rd DCA held that the provisions of s. 322.28(5), Florida Statutes, required reinstatement of the suspension of Olivie's driver license, because the statute as amended by the 1999 Florida Legislature, now states: "A court may not stay the administrative suspension of a driving privilege under s. 322.2615 or s. 322.2616 during judicial review of the departmental order that resulted in such suspension, and a suspension or revocation of a driving privilege may not be stayed upon an appeal of the conviction or order that resulted in the suspension or revocation." The 3rd DCA cited its 1996 decision in Dept. of Highway Safety & Motor Vehicles v. Degrossi, 680 So. 2d 1093 in support of its ruling in this case.
Assistant General Counsel Kathy A. Jimenez represented the Department on certiorari review.
[Department of Highway Safety and Motor Vehicles v. Olivie, 2/9/00]

Quashing witness subpoena held harmless error
The hearing officer's error in quashing a witness subpoena was harmless because based on the proffer of the witness' testimony, there was no reason for the hearing officer to continue the hearing, the 3rd DCA said. Following Chamizo's arrest for DUI, at the police station he submitted to a breathalyzer test, which resulted in three breathalyzer readings well above the legal limit of .08. Because there was nothing in the defense proffer which cast any doubt on the reliability of the breath test results, nor was there any proffer of the substance of a conversation between Chamizo and the witness who did not appear at the administrative hearing, the DCA held that the hearing officer had made a technical error in quashing the subpoena, but that error was immaterial. The DCA held: "The true issue for the hearing officer to decide was whether to continue the proceedings, and based on the defendant's proffer, the hearing officer acted well within her discretion in denying the continuance and proceeding to adjudicate the case." The DCA further held: "Where the hearing officer makes a harmful trial error, the remedy is to send the matter back for a new hearing. Where the hearing officer makes an error but the error is harmless, the circuit court should affirm.” The decision of the Circuit Court panel summarily setting aside the driver's license suspension was quashed and the driver license suspension was reinstated.
Assistant General Counsel Kathy A. Jimenez represented the Department on certiorari review.
[State of Florida, Department of Highway Safety and Motor Vehicles v. Chamizo, 1/19/00]

4TH DISTRICT COURT OF APPEAL

Admission of police testimony
A police officer is allowed to testify to certain out-of-court statements made by a co- perpetrator in the course of the offense, the 4th DCA said. Anthony Banks appealed his conviction for delivery of cocaine. Banks contended that the statements made by Jeffrey Goodman to Detective Roaden were inadmissible hearsay. The DCA disagreed, concluding, "Goodman's statements during the transaction, including the comments to the effect that Banks was 'cool' and that he and Banks were concerned about whether Roaden was a snitch, were 'verbal acts' not offered to prove the truth of the matter asserted and, therefore not hearsay."
Assistant Attorney General Ettie Feistmann represented the state on appeal.
[Banks vs. State, 2/16/00]

Miranda warnings
A defendant is not entitled to a second set of Miranda warnings before being questioned on unrelated cases, the 4th DCA said. The state appealed the trial court's order granting Antonio Jones motion to suppress. Jones argued that he should have been given a second set of Miranda warnings before being questioned on unrelated cases, but the DCA disagreed. "The failure of law enforcement officials to inform a suspect in custody of the subject matter of the interrogation, i.e., what offenses he or she will be questioned about, does not affect the suspect's decision to waive the Fifth Amendment privilege in any constitutionally significant manner. Thus, where a suspect is brought into custody on one criminal charge and waives his or her Miranda rights, police officials may question the suspect about unrelated crimes without readministering the Miranda rights," the DCA said.
Assistant Attorney General Leslie T. Campbell represented the state on appeal.
[State vs. Jones, 1/26/00]

5TH DISTRICT COURT OF APPEAL

No stay of driving privileges
The 5th District Court of Appeal upheld a circuit court’s conclusion that §322.28(5), Florida Statutes, is constitutional and denied the stay of the driving privileges of an individual’s license that was administratively suspended under §322.2615 or §322.2616 during judicial review of the departmental order that resulted in the suspension. Paul Anderson petitioned for a writ of certiorari to stay the suspension of his driving privileges for refusal to submit to a breath, blood or urine test. Anderson’s appeal of the suspension was denied by the Department of Highway Safety. Next, he petitioned for a writ of certiorari in the circuit court where he requested a stay of the suspension alleging that subsection (5) of section 322.28, F.S. (1999), was unconstitutional. The circuit court upheld the constitutionality of subsection 322.28(5) and denied Anderson’s motion to stay the suspension. The 5th DCA agreed with the circuit court’s conclusion and opined “that any conflict that did exist between the rules and the controlling statutes has now been rectified by the 1999 amendment to section 322.28. Subsection 322.28(5) is a ‘valid general law’ and prevails over Rule 9.310(a) by prohibiting a stay.”
DHSMV Assistant General Counsel Kathy A. Jimenez represented the Agency
[Anderson vs. Department of Highway Safety and Motor Vehicles 2/25/00]