Appellate Standards of Review in Criminal Matters, Part 2
The appellate standard of review defines the manner and scope of an appellate court’s review of a lower tribunal’s actions whether it is the actions of a judge, jury, or administrative body. Part one of this article identified the appropriate standard of review for specific civil, family law, and administrative matters. This article identifies the appropriate standard of review for specific criminal matters as a companion piece to part one of this article published in the May issue of The Florida Bar Journal.
A) Preliminary Issues
1) Motion to Dismiss
The standard of review for dismissal of the state’s charge against a defendant is de novo.1
2) Motion to Suppress
A trial court’s ruling on a motion to suppress is presumed correct.2 These often present mixed questions of law and fact that the appellate court must review independently.3
3) Speedy Trial
The standard of review applied to an order on a motion for discharge under the speedy trial rule depends upon whether the order is based upon a finding of fact or a conclusion of law, with factual disputes reviewed for competent substantial evidence.4
4) Double Jeopardy
Whether a sentence violates double jeopardy is reviewed de novo.5
5) Discovery Violations
A trial court’s ruling on whether a discovery violation warrants exclusion of the evidence or testimony is discretionary. This decision is not disturbed absent a clear showing of abuse of discretion.6
When defense evidence is erroneously excluded for alleged discovery violations, the court must review the ruling under a harmless error analysis. It must determine whether the erroneously excluded evidence could have had an effect on the jury favorable to the defendant or if the improper exclusion could have reasonably affected the outcome of the case. If the evidence may have affected the outcome, then the error is not harmless.7
6) Richardson Violations
For Richardson violations, appellate review is appropriate under either of two prongs. First, “if the record is insufficient for the appellate court to determine that the defense was not prejudiced by the discovery violation, the [s]tate has not met its burden to establish harmless error, and the error must be considered harmful.”8 Alternatively, the appellate court must consider whether there is a reasonable probability that the discovery violation procedurally prejudiced the defense.9
7) Defendant’s Competence
The standard of review of a trial court’s determination of a defendant’s competence to stand trial is the abuse of discretion standard.10 In determining a defendant’s competence to stand trial, the trial court decides whether the defendant has “‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as a factual understanding of the proceedings against him.’”11
8) Pretrial Release
“Matters relating to the setting of bail and the conditions attached to a defendant’s pretrial release on bail are reviewed under an abuse of discretion standard.”12
The standard of review for an order on motion to transfer venue is abuse of discretion.13
10) Disqualification of Judge
The proper standard of review for disqualifying a judge is de novo.14
11) Issue of Availability
A trial court’s determination on the issue of a witness’ availability is reviewed for abuse of discretion.15 Discretion is abused only when the judicial action is “arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court.”16
B) Plea Issues on Direct Appeal
1) Denial of Motion to Withdraw Plea
A trial court’s order on a motion to withdraw a plea is reviewed for an abuse of discretion.17 When the motion is filed after sentencing, the appellate court will reverse only when a manifest injustice occurs.18
C) Trial Issues
1) Voir Dire Problems
a) Challenge for Cause
A juror is excused for cause when there is reasonable doubt the juror will be able to render an impartial verdict.19 The appellate court reviews a ruling on a challenge for cause for abuse of discretion.20
2) Prosecutorial Misconduct
The scope of review for improper argument is whether the appellate court can see from the record that the prosecutor’s conduct did not prejudice the defendant. Unless this conclusion can be drawn from the record, the judgment should be reversed.21 The general rule is that “failing to raise a contemporaneous objection when improper closing argument comments are made waives any claim concerning such comments for appellate review.”22 The only exception to this rule is when the unobjected-to comments rise to the level of fundamental error. “In order for an error to be fundamental and justify reversal in the absence of a timely objection, the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the alleged error.”23
3) Sufficiency of Evidence
In a death penalty case, the Florida Supreme Court reviews the sufficiency of the evidence in the light most favorable to the state to determine whether a rational trier of fact could have found the existence of the elements of the crime beyond a reasonable doubt.24
a) Motion for Judgment of Acquittal
The court reviews de novo a trial court’s denial of a motion for judgment of acquittal, for the sole purpose of determining whether the evidence is legally sufficient.25 The conviction is affirmed unless it is supported by competent, substantial evidence.26 The appellate court determines, when viewing the evidence in the light most favorable to the state, if sufficient evidence exists that would permit a rational trier of fact to find the elements of the crime beyond a reasonable doubt.27
b) Circumstantial Evidence
When a case is based solely on circumstantial evidence, a special standard of review of the sufficiency of the evidence applies.28 The burden is on the state to introduce competent evidence inconsistent with any reasonable hypothesis of innocence in order for the conviction to be sustained.29
4) Williams Rule Evidence
A trial court’s decision to admit collateral crime evidence is reviewed for an abuse of discretion.30 A party may be permitted to introduce collateral crime evidence when it is relevant to prove a material fact. However, this type of evidence is inadmissible when it is relevant solely to prove bad character or propensity.31 Because of the strict standard of relevancy that applies, collateral crime evidence is admissible as Williams rule evidence only if it is strikingly similar to the charged crime and the similarity is so unique as to constitute “fingerprint” evidence.32
“The erroneous admission of irrelevant collateral crimes evidence ‘is presumed harmful error because of the danger that a jury will take the bad character or propensity. . . as evidence of guilt of the crime charged.’”33 The harmless error test places the burden on the state to prove beyond a reasonable doubt that there is “no reasonable possibility that the error contributed to the conviction.”34 A trial court’s exclusion of similar crimes committed by another person for exculpatory purposes, generally referred to as “reverse Williams rule evidence,” is also subject to an abuse of discretion review.35
5) Giglio Violation
To establish a Giglio violation, a petitioner must show that 1) some testimony at trial was false; 2) the prosecutor knew that the testimony was false; and 3) the testimony was material.36 The court applies a mixed standard of review to Giglio claims, “deferring to the factual findings made by the trial court to the extent they are supported by competent, substantial evidence, but reviewing de novo the application of those facts to the law.”37
6) Jury Instructions
A trial court’s decision on jury instructions is reviewed under the abuse of discretion standard.38 The standard has also been characterized as a mixed standard of de novo and abuse of discretion because deciding whether to instruct the jury on a particular subject begins as a rule-bound exercise.39
7) Motion for New Trial
The standard of review of a motion for new trial depends upon the subject matter of the motion. For example, the appellate court’s standard of review of a trial court’s order granting or denying a motion for new trial on the ground of juror misconduct is abuse of discretion.40 But the question of whether a suspect is in custody is a mixed question of law and fact. Mixed questions of law and fact that ultimately determine constitutional rights are ordinarily reviewed by a two-step approach, deferring to the trial court on questions of historical fact while conducting a de novo review of the constitutional question.41
8) Juror Misconduct
Addressing allegations of juror misconduct is within the discretion of the trial court.42 Before making an inquiry, the trial court must determine if the matters inhere in the verdict and are subjective in nature or are outside the verdict and objective in nature.43 If the conduct does not inhere in the verdict, then the trial court may inquire of the misconduct.44 Whether a new trial should be granted for juror misconduct is a burden placed on the moving party.45 Once the movant proves actual juror misconduct, he or she is entitled to a new trial unless the opposing party demonstrates there is no reasonable possibility that the misconduct affected the verdict.46
D) Sentencing Issues
A sentencing error constituting an illegal sentence is reviewed de novo.47
1) Length of sentence
The proper application of scoresheets is a question of law reviewed de novo. On appeal from a denial of a Fla. R. Crim. P. 3.800(a) motion to correct an illegal sentence on the basis of the court records, demonstrating on their face the movant’s entitlement to relief, is the question of whether the same sentence could have been imposed on the basis of a corrected scoresheet.48 A trial court’s error in using a multiplier in a defendant’s sentencing scoresheet is not harmless error, even if the sentence imposed falls within the corrected sentencing range, if the appellate court cannot conclude beyond a reasonable doubt that the trial court would have imposed the same sentence absent the scoresheet error.49 The legality of a sentence is a question of law and is subject to de novo review.50
ii) Departure Reasons
A trial court’s determination as to whether a departure from the sentencing guidelines’ minimum sentence is the best sentencing option for the defendant is reviewed for an abuse of discretion. The appellate court must sustain the trial court’s determination unless no reasonable person would agree with the trial court’s decision.51
b) Statutory Maximums
The trial judge has considerable discretion as to which sentence to impose. When the sentence is within statutory minimums or maximums, appellate review is limited to determining whether the process used by the judge was fair, and particularly, whether the factors considered were relevant and reliable.52
In reviewing an aggravating factor challenged on appeal of a capital murder proceeding, the task of the Florida Supreme Court is to review the record to determine whether the trial court applied the correct rule of law for each aggravating circumstance and, if so, whether competent, substantial evidence supported its finding.53
The standards of review of the trial court’s findings of mitigation are 1) whether a particular circumstance is truly mitigating in nature — a question of law and subject to de novo review by the appellate court; 2) whether a mitigating circumstance has been established by the evidence in a given case — a question of fact and subject to the competent, substantial evidence standard; and 3) the weight assigned to a mitigating circumstance — a question within the trial court’s discretion and subject to the abuse of discretion standard.54 Decisions that fail to admit mitigating evidence are reviewed under the harmless error standard and affirmed if found to be harmless beyond a reasonable doubt.55
e) Jail/Prison Credit
When the issue is credit for jail time served, if the record reflects that a defendant has served time prior to sentencing on the charge for which he was tried and convicted, and the sentence does not properly credit the defendant with time served, then the sentence may be challenged under Florida Rule of Criminal Procedure 3.800.56 The trial court reviews the appropriate records and determines whether the defendant has received the correct credit for time served. The standard of review after a summary denial of a Rule 3.800(a) motion is that unless the record shows conclusively that the appellant is entitled to no relief, the order must be reversed and the cause remanded for an evidentiary hearing.57
There is no bright line test for distinguishing a single criminal episode from separate criminal episodes.58 Instead, the court must focus on the facts of each case.59 Courts consider factors such as the nature, time, place, and number of victims involved.60 Whether the two offenses were committed during a single criminal episode is a question of fact.61 As a factual issue, the standard of review is abuse of discretion, and the appellate court must affirm the sentence if the trial court applied the correct rule of law and made factual findings supported by competent, substantial evidence.62
g) Habitual Offender
Improper habitualization of a defendant, contrary to specific statutory requirements, is a “patent,” “serious” error that has a quantifiable effect on the length of the defendant’s incarceration and is “fundamental error” that should be corrected on direct appeal even if not preserved for review.63
2) Probation/Community Control
To establish that someone on community control or probation violated supervision by committing a new law violation, the state must prove by a preponderance of the evidence the person committed the charged offense.64 This is proof that leads the fact-finder to conclude that the existence of a contested fact is more probable than its nonexistence.65 “Sufficiency of the evidence is generally an issue of law that should be decided pursuant to the de novo standard of review.”66 A deferential standard of review is applied to claims of insufficiency of the evidence. The appellate court must determine “whether, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is competent, substantial evidence to support the verdict and judgment.”67 The appellate court first applies the de novo standard of review to determine that competent, substantial evidence supports the trial court’s finding that a defendant committed a new law violation. Then, the appellate court applies the abuse of discretion standard to determine whether the trial court erred in determining that this new law violation constituted a substantial and willful violation warranting revocation of the defendant’s community control or probation.68
a) Imposing Conditions
The standard of review for a violation of probation determination is abuse of discretion.69
b) Sentence Upon Violation
The standard of review for sentencing after revocation of probation is de novo.70
E) Substantive Issues
1) Findings of Probation/Community Control Violations
A violation of probation must be willful and substantial before a defendant’s probation can be revoked.71 The state has the burden of establishing a willful and substantial violation of probation by the greater weight of the evidence.72 A technical violation of the probation provision is insufficient to meet this burden.73 Absent an abuse of discretion, determining whether the violation of probation is willful and substantial is a factual question that is left to the trial court.74 The trial court, not the appellate court, evaluates the motive, intent, and attitude of the defendant.75 The language used in the condition of probation is determinative of the probationer’s duties and responsibilities while on probation.76
Violation of probation cases adhere to strict due process requirements.77 A probationer must be charged with a violation for the reasons stated in the affidavit filed, and these reasons must be established by competent, substantial evidence at the hearing.78 The violation must mirror the language of the condition of probation allegedly violated.79
F) Post-conviction Issues
Denial of a defendant’s motion for judgment of acquittal is reviewed de novo.80 But, generally, a conviction will not be reversed on appeal if it is supported by competent, substantial evidence.81 If a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, after viewing the evidence in the light most favorable to the state, there is sufficient evidence to sustain a conviction.82
1) Ineffective Assistance of Counsel Raised Post-conviction
The appellate court applies a mixed standard of review to ineffective assistance of counsel claims, deferring to the trial court for findings of fact, but reviewing questions of law de novo.83 For the summary denial of a post-conviction motion for relief based on ineffective assistance of counsel, the standard of review is that “unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing.”84
On appeal, the standard of review for each issue must be discussed. Hopefully, this article — and part one of this article published in the May issue of the Journal and available at www.floridabar.org — will be a resource for the practitioner to begin that discussion.
1 State v. Williams, 918 So. 2d 400 (Fla. 2d D.C.A. 2006).
2 State v. J.D., 796 So. 2d 1217, 1218 (Fla. 4th D.C.A. 2001).
3 State v. Glatzmayer, 789 So. 2d 297, 301 (Fla. 2001); J.C.M. v. State, 891 So. 2d 573 (Fla. 2004).
4 Philip J. Padovano, Appellate Proceedings: Criminal Appeals ; 2 Fla. Prac., Appellate Practice, §25.7 (2006).
5 State v. Florida, 894 So. 2d 941 (Fla. 2005).
6 State v. Sowers, 763 So. 2d 394 (Fla. 1st D.C.A. 2000); State v. Paul, 934 So. 2d 1167 (Fla. 2006); Lopez-Vazquez v. State, 931 So. 2d 231, 232 (Fla. 5th D.C.A. 2006); Newell v. State, 935 So. 2d 83 (Fla. 5th D.C.A. 2006); Waggy v. State, 935 So. 2d 571 (Fla. 1st D.C.A. 2006); Saddler v. State, 921 So. 2d 777, 778 (Fla. 1st D.C.A. 2006); Moore v. State, 916 So. 2d 940, 942 (Fla. 4th D.C.A. 2006).
7 Johnson v. State, 728 So. 2d 1204, 1205 (Fla. 3d D.C.A. 1999) ( citing C.D.B. v. State, 662 So. 2d 738 (Fla. 1st D.C.A. 1995)); O’Rourke v. State, 645 So. 2d 569, 571 (Fla. 5th D.C.A. 1994), approved, 661 So. 2d 800 (Fla. 1995); but see M.N. v. State, 724 So. 2d 122 (Fla. 4th D.C.A. 1998).
8 Giles v. State, 916. So. 2d 55, 58 (Fla. 2d D.C.A. 2005) ( citing State v. Schopp, 653 So. 2d 1016, 1020 (Fla. 1995)).
9 Giles, 916 So. 2d at 58 .
10 Boyd v. State, 910 So. 2d 167, 187 (Fla. 2005); Carter v. State, 576 So. 2d 1291, 1292 (Fla. 1989); Mora v. State, 814 So. 2d 322, 3298 (Fla. 2002).
11 Boyd, 910 So. 2d at 186-187 ( citing Hardy v. State, 716 So. 2d 761, 763 (Fla. 1998) ( quoting Dusky v. United States, 362 U.S. 402 (1960))).
12 Hernandez v. Roth, 890 So. 2d 1173, 1174 (Fla. 3d D.C.A. 2004).
13 Stanek-Cousins v. State, 912 So. 2d 43 (Fla. 4th D.C.A. 2005).
14 Scott v. State, 909 So. 2d 364 (Fla. 5th D.C.A. 2005).
15 Reynolds v. State, 934 So. 2d 1128 (Fla. 2006).
16 Id. at 1143 (internal quotations omitted).
17 Morris v. State, 909 So. 2d 428 (Fla. 5th D.C.A. 2005); Williams v. State, 919 So. 2d 645 (Fla. 4th D.C.A. 2006).
18 Townsend v. State, 927 So. 2d 1064 (Fla. 4th D.C.A. 2006).
19 Whitby, 933 So. 2d 557, 558 (Fla. 3d D.C.A. 2006) ( citing Singleton v. State, 783 So. 2d 970, 973 (Fla. 2001)).
20 Whitby v. State, 933 So. 2d at 558; Kessler v. State, 752 So. 2d 545, 550 (Fla. 1999).
21 Robinson v. State, 881 So. 2d 29 (Fla. 1st D.C.A. 2004).
22 Brooks v. State, 762 So. 2d 879, 898 (Fla. 2000).
23 Id. at 899 (internal quotations omitted).
24 Weaver v. State, 894 So. 2d 178 (Fla. 2004).
25 Reynolds v. State, 934 So. 2d 1128 (Fla. 2006); Robinson v. State, 936 So. 2d 1164 (Fla. 1st D.C.A. 2006); Fowler v. State, 921 So. 2d 708 (Fla. 2d D.C.A. 2006), Huggins v. State, 889 So. 2d 743, 765 (Fla. 2004); Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002); Jones v. State, 790 So. 2d 1194, 1196 (Fla. 1st D.C.A. 2001).
26 Boyd v. State, 910 So. 2d 167, 180 (Fla. 2005); Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002).
27 Pagan, 830 So. 2d at 803.
28 Reynolds, 934 So. 2d 1128 (Fla. 2006); Robinson, 936 So. 2d at 1164; Giralt v. State, 935 So. 2d 599 (Fla. 3d D.C.A. 2006).
29 State v. Law, 559 So. 2d 187, 188 (Fla. 1989); P.M.M. v. State, 884 So. 2d 418, 419-20 (Fla. 2d D.C.A. 2004).
30 Kulling v. State, 827 So. 2d 311, 313 (Fla. 2d D.C.A. 2002).
31 Fla. Stat. §90.404(2)(a).
32 Kulling, 827 So. 2d at 314.
33 Robertson v. State, 829 So. 2d 901, 913-14 (Fla. 2002) ( quoting Castro v. State, 547 So. 2d 111, 115 (Fla. 1989)).
34 State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986); Fitzsimmons v. State, 935 So. 2d 125 (Fla. 2d D.C.A. 2006).
35 Huggins v. State, 889 So. 2d 743, 761 (Fla. 2004) ( citing Kimbrough v. State, 700 So. 2d 634 (Fla. 1997)).
36 Suggs v. State, 923 So. 2d 419, 426 (Fla. 2005) ( citing Craig v. State, 685 So. 2d 1224, 1226 (Fla. 1996)).
37 Suggs, 923 So. 2d at 426 ( citing Sochor v. State, 883 So. 2d 766, 785 (Fla. 2004) ( quoting Lightbourne v. State, 841 So. 2d 431, 437-438 (Fla. 2003))).
38 Bozeman v. State, 931 So. 2d 1006, 1008 (Fla. 4th D.C.A. 2006); Lewis v. State, 693 So. 2d 1055, 1058 (Fla. 4th D.C.A. 1997)
39 See Bozeman, 931 So. 2d 1006, 1009 (Farmer, J., dissenting).
40 Williams v. State, 933 So. 2d 671 (Fla. 1st D.C.A. 2006).
41 Snead v. State, 913 So. 2d 724 (Fla. 5th D.C.A. 2005); Connor v. State, 803 So. 2d 598 (Fla. 2001), cert. denied, 535 U.S. 1103 (2002); Ramirez v. State, 739 So. 2d 568 (Fla. 1999), cert. denied, 528 U.S. 1131 (2000).
42 Boyd v. State, 910 So. 2d 167, 178 (Fla. 2005).
43 Id. ( citing Marshall v. State, 854 So. 2d 1235, 1240 (Fla. 2003)).
44 Boyd, 910 So. 2d at 178.
45 Williams v. State, 933 So. 2d 671, 672 (Fla. 1st D.C.A. 2006) ( citing State v. Hamilton, 574 So. 2d 124, 126 (Fla. 1991)).
46 Id. at 672.
47 Jackson v. State, 925 So. 2d 1168 (Fla. 4th D.C.A. 2006).
48 Fla. R. Civ. P. 3.800(a); Collins v. State, 929 So. 2d 1188 (Fla. 4th D.C.A. 2006).
49 Fla. R. Civ. P. 3.703(d)(13); Colon v. State, 909 So. 2d 484 (Fla. 5th D.C.A. 2005).
50 Flowers v. State, 899 So. 2d 1257 (Fla. 4th D.C.A. 2005).
51 State v. Mann, 866 So. 2d 179 (Fla. 5th D.C.A. 2004).
52 Fraley v. State, 426 So. 2d 983 (Fla. 3d D.C.A. 1983).
53 See generally Douglas v. State, 878 So. 2d 1246 (Fla. 2004).
54 Blanco v. State, 706 So. 2d 7 (Fla. 1997); see generally Douglas, 878 So. 2d 1246.
55 Rodgers v. State, 934 So. 2d 1207 (Fla. 2006).
56 Mancino, 714 So. 2d at 433.
57 Fla. R. App. P. 9.140(i); Hidalgo v. State, 729 So. 2d 984 (Fla. 3d D.C.A. 1999).
58 See Echelmeier v. State, 662 So. 2d 994 (Fla. 2d D.C.A. 1995).
60 Smith v. State, 650 So. 2d 689, 691 (Fla. 3d D.C.A. 1995).
61 Colson v. State, 678 So. 2d 1354 (Fla. 1st D.C.A. 1996).
62 State v. Glatzmayer, 789 So. 2d 297 n.7 (Fla. 2001); Williams v. State, 804 So. 2d 572 (Fla. 5th D.C.A. 2002).
63 Maddox v. State, 760 So. 2d 89 (Fla. 2000).
64 Robinson v. State, 907 So. 2d 1284, 1287 (Fla. 2d D.C.A. 2005).
65 Smith v. State, 753 So. 2d 703, 704 (Fla. 5th D.C.A. 2000) ( citing Dep’t of Health & Rehab. Servs. v. M.B., 701 So. 2d 1155 (Fla. 1997); Walls v. State, 641 So. 2d 381 (Fla. 1994), cert. denied, 513 U.S. 1130 (1995); State v. Edwards, 536 So. 2d 288 (Fla. 1st D.C.A. 1988)).
66 Santiago v. State, 874 So. 2d 617, 624 (Fla. 5th D.C.A. 2004) ( citing Jones v. State, 790 So. 2d 1194 (Fla. 1st D.C.A. 2001); State v. Hawkins, 790 So. 2d 492 (Fla. 5th D.C.A. 2001)).
67 Tibbs v. State, 397 So. 2d 1120, 1123 (Fla. 1981), aff’d, 457 U.S. 31 (1982); see also F.B. v. State, 852 So. 2d 226, 230 (Fla. 2003).
68 Ashley v. State, 925 So. 2d 1117 (Fla. 5th D.C.A. 2006); State v. Carter, 835 So. 2d 259, 262 (Fla. 2002).
69 Stanley v. State, 922 So. 2d 411,413 (Fla. 5th D.C.A. 2006); Bernhardt v. State, 288 So. 2d 490, 501 (Fla. 1974).
70 Lacey v. State, 831 So. 2d 1267, 1269 (Fla. 4th D.C.A. 2002).
922 So. 2d at 413 ( citing State v. Carter, 835 So. 2d 259 (Fla. 2002)).
72 Windom v. State, 886 So. 2d 915 (Fla. 2004); Robinson v. State, 907 So. 2d 1284, 1286 (Fla. 2d D.C.A. 2005).
73 Stanley, 922 So. 2d at 414 n.1. ( citing Reed v. State, 865 So. 2d 644 (Fla. 2d D.C.A. 2004)).
74 Stanley, 922 So. 2d at 414.
77 Id. at 415 n.3 ( citing Black v. Romano, 471 U.S. 606, 612 (1985); Longley v. State, 902 So. 2d 925 (Fla. 5th D.C.A. 2005); Estevez v. State, 705 So. 2d 972 (Fla. 3d D.C.A. 1998); McCloud v. State, 653 So. 2d 453 (Fla. 3d D.C.A. 1995)).
78 Stanley, 922 So. 2d 411, 415 (Fla. 5th D.C.A. 2006).
80 See Johnston v. State, 863 So. 2d 271, 283 (Fla. 2003); State v. Surin, 920 So. 2d 1162, 1164 (Fla. 3d D.C.A. 2006).
81 Johnston, 863 So. 2d at 283.
82 Avrich v. State, 936 So. 2d 739 (Fla. 3d D.C.A. 2006).
83 Cave v. State, 899 So. 2d 1042, 1052 (Fla. 2005) ( citing Stephens v. State, 748 So. 2d 1028, 1033 (Fla. 1999)).
84 Lovett v. State, 773 So. 2d 574, 575 (Fla. 3d D.C.A. 2000) ( quoting Fla. R. App. P. 9.140(i)).
Julia Luyster is appellate counsel at Bernstein Chackman & Liss in South Florida.
This article is submitted on behalf of the Appellate Practice Section, Susan W. Fox, chair, and Tracy R. Gunn, Heather M. Lammers, and Kristin A. Norse, editors.