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32349 Apr 26 01 Ofc. ° ° #50 o sourb duv a t street äECGVED t o u a bossee f a. UNIONCORRMONØS 32349 APR 26 01 BY FORMA dear cosc a) odministratoc mr. david 4 d) now G nce The Supreme court has shoKen flo. n e 8 1 n9s that iT did on th e florida hursi case see Sotozar i fla. L . w eekty $53 u est ' 197 so. 3 4 35 Pev8 d at 042136 s. cf. 616 (2036) f.S? 921 14 and f.s.' 921 137 CD -Page_of_- I wou t d Lik e to know can th e Supervisor go to the cnuris own Sto f f Qt t o r n ey to osK if the tv ons cript of the record 87 2 7 F That's in the court's reuters r,te. shos it tsat T Should be ele i ble for the impact o f what the it s. Supr erne Court 's ru l i o would cho for a flo. Case that may have the presence of somethin that's un-constitutional and wron ihaT inter connects wi Th Pin and the okove case I d appreciate it CiO th254flo r i dd Suprem e coa r7 would looK o f the 040C *00 8727 5 t h o i tb e cle r k td uLk pu t on file, wh er1 b e fi le d si in M96 w T h hi s Gra mps be n e a t b the Lo wer Courf s y'ecord 13e co use the t ra nscri pts cPi tb e pgs. ' 169 8- 1767 can Sho w ' the judge ha ndt ed the agg y a y a Tors and mi tigaTors instrucTionS to H s jury before he did the ES.' 92L911 CD C2] 3 writings of his fiydin in th e cite* 7 2 3 Go. 2d 123-16 3 Pf®eedingS preSGL ey Q - Page of - TABLE OF CITATIONS Apprendiv. New Jersey, 530U.S.466 (2000) .............................3 Arizona v. Fulminante, 499 U.S. 279 (1991). .. .. 18 Brecht v. Abrahamson, 507 U.S. 619 (1993). .. 18 Booth v. Maryland, 482 U.S. 496 (1987). ... .17 Bottoson v. Moore, 833 So. 2d 693 (Fla. 2002). 15 Danforth y. Minnesota, 552U.S.264 (2008) ..............................6 Downs v. Dugger, 514 So. 2d 1069 (Fla. 1987). .. .12 Espinosa v. Florida, 505 U.S. 1079 (1992). .. 12 Falcon v. State, 162 So. 3d 954 (Fla. 2015). .passim Gardnerv.Florida,430U.S.349(1977)................................9 Gideon v. Wainwright, 372 U.S. 335 (1963). .. 11 Hall v. State, 941 So. 2d 1125 (1989). .. .. .. 4, 12, 21 Hildwin v. Florida, 490 U.S. 638 (1989). .. .. .15 Hitchcock v. Dugger, 481 U.S. 393 (1987). ... ... .. .. ... ..... .... .. 4, 11 XHurst v. Florida, No. 14-7505, 2016 WL 112683 (U.S. Jan. 12, 2016). .passim Jackson v. Dugger, 547 So. 2d 1197 (Fla. 1989)..........................17 Jackson v. State, 648 So.2d 85 (Fla. 1994)............................ ..13 James v. State, 615 So.2d 688 (Fla. 1993)............................ .. 13 Johnson v. State, 904 So.2d 400 (Fla.2005)......................... .14, 15 King v. Moore, 831 So. 2d 143 (Fla.2002)..............................15 Linkletter v. Walker, 381 U.S. 618 (1965)........................... .... .7 Lockett v. Ohio, 438 U.S. 586 (1978)................................ ...11 Lugo v. Secretary, 750 F.3d 1198 (11th Cir.2014)..................... .... 1 Mapp v. Ohio, 367 U.S.643(1961).....................................9 Maynardv.Cartwright,486U.S.356(1988)............................12 11 Meeks v. Dugger, 576 So.2d 713 (Fla. 1991).......................4, 12,21 Miller v. Alabama, 132 S. Ct. 2455 (2012) . ... 5 Neder v. United States, 527 U.S. 1 (1999) . .17, 19 Riley v. Wainwright, 517 So.2d 656 (1987)............................. 12 XRing v. Arizona, 536 U.S. 584 (2002) . .passim Schriro v. Summerlin, 542 U.S. 348 (2004) . .6, 14, 21 Spaziano v. Florida, 468 U.S. 447 (1984).. 15, 16 Stovally.Denno,388U.S.293(1967)...................................7 Sullivan v. Louisiana, 508 U.S. 275 (1993). .. 19, 20 Teague v. Lane, 489 U.S.288 (1989)....................................5 Thompson v. Dugger, 515 So. 2d 173 (Fla. 1987) . 12, 17 Witt v. State, 387 So. 2d 922 (Fla. 1980) . .passim 111 Headnotes and indexes are copyrighted and may not be duplicated by photocopying, printing, or other means without the express permission of the publishers. 1-800-351-0917 41 Fla. Ih.Weekly D714 DISTRICT COURTS OFAPPEAL sentency under the Criminal Punishment Code was 15.15 months in CaseNo.5D15-3720. Opinion filed March 18,2016. Petition forCertiorari Reviewof the Depártment of Corrections, the trial court imposed a downward Decision from the Circuit Coun for Orange CountyActing in itsAppellate Capacity. Counsel: Douglas H. Stein, ofSeipp,Flick,&Hosley,11P,Miami, forPetitioner.Dean departure sentenceof51 weeks inthecountyjail.See §921.002(1)(b), A. Mitchell, Ocala, forEmergencyPhysiciansofCentralFlorida, ILP,Respondent. Fla. Stat. (2015). Thetrialcourt'sreasonsforimposingthedownward (PER CURIAM.) Progressive American Insurance Company departure were that Appelleehad no priorrecord, the crimes were a ("Petitioner")seeks secondtiercertiorarireviewofthecircuitcourt's third-degree felony and a first-degreemisdemeanor,and he was too appellatedecisionaffirrningthecountycourt'srulingswhichgranted young to appreciatethe consequencesoftheoriginaloffenseand the Emergency Physicians of Central Florida, LLP, a/a/o Ebony Wil- allegedprobationviolations. liams' ("Respondent") motion for final summary judgment and The record reveals that Appelleewas 21 years old at the time he denied Petitioner's motion for final summaryjudgment [20 Fla. L. committedhis initial offenses: attemptedburglaryofa dwelling and Weekly Supp.728a]. BaseduponMercuryInsurance Co. ofFlorida petittheft. Pursuanttohispleaagreement,Appelleewassentencedto v. EmergencyPhysiciansofCentralFlorida, 182 So.3d661 (Fla.5th three yearsprobationforthosecrimes. Aftercompleting ayearand a halfofprobationattheageof23,hecommitteda secondviolationof DCA 2015),andMetropolitan CasualtyInsuranceCo.v.Emergency Physicians ofCentral Florida, LLP, 178 So. 3d 921 (Pla. 5th DCA probation by driving underthe influence. The 51-week sentence in 2015),wegrantthepetitionandquashthedecisionofthecircuitcourt countyjailwasgiveninconnectionwithAppellee'sno contestpleato the second violation. sitting in its appellate capacity. PETITION GRANTED. (EVANDER, BERGER, and ED- Whenanalyzinga downwarddeparturesentence,appellatecourts WARDS, JJ., concur.) must firstdeterminewhether"thetrialcourtappliedthecorrectruleof law and whether competent, substantial evidence supports the trial * * * court'sreasonforimposingadownwarddeparturesentence." State v. SCOFITAIAN WOODMAN, JR.,Appellant,v. STATEOFFIDRIDA,Appellee.5th Leverett, 44 So. 3d 634, 636 (Fla. 5th DCA 2010) (citing State v. District. CaseNo.5D15-1946. OpinionfiledMarch l8,2016.Appeal fromtheCircuit Mann, 866 So. 2d 179, 181 (Fla. 5th DCA 2004)). Section Court for Brevard County, GeorgeW. Maxwell,III, Judge. Counsel: James S. Purdy, 921.0026(2), Florida Statutes (2015), sets forth a list of mitigating Public Defender, andJeri O. Delgado,AssistantPublic Defender,DaytonaBeach, for Appellant. PamelaJo Bondi, AttomeyGeneral,Tallahassee, andAllison Leigh Morris, circumstances that permit the imposition ofa downward departure. Assistant Attorney General, Daytona Beach, forAppellee. Onlyonereason givenbythetrialjudgeatthetimeoftheoffense, that Appelleewastooyoungtoappreciatetheconsequencesoftheoffense, (PER CURIAM.) We affirm the trial court's order reinstating and isfoundonthatlist. §921.0026(2)(k),Fla.Stat.(2015).Thedefendant modifying Appellant's probation following an open plea. However, bears theburden ofproving a departure factorby the preponderance because the written order on appeal does not set forth the specific oftheevidence.SeeStatev. Silver,723 So.2d381, 383 (Fla.4thDCA condition ofprobation that wasviolated, weremandfortheentry of 1998). a proper order that specifies the condition ofprobation violated. See Youthful age, alone, isnotsufficientproofoftheaforementioned Perez v. State, 958 So.2d 1076, 1076 (Fla. 5thDCA2007). mitigating factorleverett, 44 So. 3d at 637-38. Although Appellee AFFIRMED;REMANDEDforentryofproperorder.(BERGER, notes that he has only completed the tenth grade, there was no LAMBERT, and EDWARDS,JJ., concur.) evidence presented to establish that he "suffered from diminished * * * mental capacity or other mental deficit which prevented him from Criminal law-Firstdegreemurder-U.S.SupremeCourt decision in maturing enough by age 23 to appreciate the consequences of his Hunt v. Florida, which held that certain aspects ofMorida's capital offenses " State v. Jerry, 19 So. 3d 1167, 1170 (Fla. 1stDCA 2009) sentencing scheme are unconstitutional, struck down Morida's (citing State v. Williams, 963 So. 2d 281, 283 (Fla. 4th DCA 2007) procedure for imposing death penalty, not the death penalty itself- (holding that the defendant being 22 years old "would hardly place Trial courts erred in striking state's notices of intent to seek death him inthecategory ofbeingtooyoungto appreciatethe consequences penalty in two different cases on ground that Morida no longer had ofdrivingwitharevokedlicense"));seealsoStatev.Salgado,948 So. death penalty statute or statutory authority under which state could 2d 12, 15-16 (Fla. 3d DCA 2006) (finding downward departure seek death penalty-Ex post facto laws-New capital sentencing unwarranted where no evidence that the 21 year old defendant was legislation enacted in response to Hurst applies to pending pmsecu- emotionallyimmature,lackedordinaryintelligenceorwasotherwise tions-Legislative acts effecting changes in criminal procedure, unableto appreciate theconsequencesofhis offenses). includingproceduralchangesthatdisadvantageadefendant,generally We find there was no competent, substantialproofthat Appellee do not violate ex post facto clause, and the new sentencing statute was too young to appreciate the consequences of his offenses. altered process used to determine whether death penalty will be Therefore, the trial court
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