consecutively. The First District certified conflict with ...

Florida Supreme Court – Review Granted
April 2014

Prepared By Richard L. Polin

Leronnie Lee Walton v. State, SC13-2652 1

The defendant was convicted of two counts of attempted murder and two
counts of attempted armed robbery. The trial court imposed 20-year mandatory
minimum sentences for the discharge of the firearm in the attempted murders
under the 10-20-life statute. § 775.087(2), Fla. Stat., and 10-year mandatory
minimum sentences for the possession of a firearm in the attempted robberies. All
of the mandatory minimum sentences were consecutive.

The First District, in Walton v. State, 106 So. 3d 522 (Fla. 1st DCA 2013),
held that consecutive mandatory minimum sentences were authorized by the
statute for the discharge of the firearm where there were multiple victims. The
Court further held any mandatory minimum sentences required by the 10-20-life
statute, for crimes committed in a single episode, regardless of whether a
defendant discharges, displays or merely carries the firearm, shall be imposed
consecutively. The First District certified conflict with the Fifth District’s decision
in Irizzary v. State, 946 So.2 d 555 (Fla. 5th DCA 2006), where the Court held that
consecutive mandatory minimum sentences are not permitted where the defendant
does not discharge the firearm.

Gary Debaun v. State, SC13-2336

Section 384.24(2), Fla. Stat., makes it unlawful for any person who has
human immunodeficiency virus infection to have “sexual intercourse” with another
person, when such person knows he or she is infected with the disease and has
been informed that he or she may communicate the disease to another person,
unless such other person has been informed of the presence of the sexually
transmissible disease and has consented to the sexual intercourse.

Construing the phrase “sexual intercourse,” the Third District Court of
Appeal, in State v. Debaun, 129 So. 3d 1089 (Fla. 3d DCA 2013), held that it was
not limited to vaginal intercourse, and encompassed oral and anal sexual activity.
The Third District certified conflict with the Second District’s decision in L.A.P. v.
State, 62 So. 3d 693 (Fla. 2d DCA 2011). The Fifth District has recently concurred
with the Third District. State v. D.C., 114 So. 3d 440 (Fla. 5th DCA 2013).

Jared Bretherick v. State, SC13-2312

The Fifth District Court of Appeal, Breatherick v. State, 2013 WL 5849486
(Fla. 5th DCA 2013), in a stand-your-ground case, certified the following question
of great public importance to the Supreme Court:

ONCE THE DEFENSE SATISFIES THE INITIAL
BURDEN OF RAISING THE ISSUE, DOES THE
STATE HAVE THE BURDEN OF DISPROVING A
DEFENDANT’S ENTITLEMENT TO A SELF-
DEFENSE IMMUNITY AT A PRETRIAL HEARING
AS IT DOES AT TRIAL?

The defendant urged the Fifth District to find that the burden of proof should
be on the State, notwithstanding the Supreme Court’s decision in Dennis v. State,
51 So. 3d 456 (Fla. 2010), where the Court held that the trial court had to
determine “whether the defendant has shown by a preponderance of the evidence
that the immunity attaches.”

Noel Plank v. State, SC14-414

The First District Court of Appeal, in Plank v. State, 130 So. 3d 289 (Fla. 1st
DCA 2014), held that a defendant charged with direct criminal contempt did not
have the right to counsel under either the Sixth Amendment or the Florida Rules of
Criminal Procedure in the contempt proceeding. The First District recognized in
its opinion that decisions from the Second and Fourth Districts had held that there
was such a right to counsel under the Florida Rules of Criminal Procedure.

Jacob Gaulden v. State, SC14-399

This is a fact-specific case addressing the issue of whether a vehicle was
“involved in a crash” so that the driver could be prosecuted for the offense of
leaving the scene. As set forth in the First District’s opinion in Gaulden v. State,
132 So. 3d 916 (Fla. 1st DCA 2014), “[a] passenger in a pickup truck Mr. Gaulden
was driving ‘separated’ from the vehicle, landed on the pavement, and suffered
fatal injuries. Although aware of his passenger’s exit from the moving truck, Mr.
Gaulden did not stop at the scene, or as close to the scene as possible, much less
remain at the scene until he had fulfilled the requirements of section 316.062,
Florida Statutes . . . .” Based on those facts, the First District certified a question

of great public importance to the Supreme Court, as to whether the driver could be
held criminally responsible for leaving the scene.

1 Links are provided to the District Court of Appeal decisions that are being
reviewed by the Supreme Court.