CARLOS J. SMITH v. State

District Court of Appeal of Florida

CARLOS J. SMITH v. State

CourtDistrict Court of Appeal of Florida

DecidedNovember 12, 2020

Docket20-1316

StatusPublished

This text of CARLOS J. SMITH v. State (CARLOS J. SMITH v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

CARLOS J. SMITH v. State, (Fla. Ct. App. 2020).

Pincite

Opinion

Third District Court of Appeal State of Florida

Opinion filed November 12, 2020. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D20-1316 Lower Tribunal No. 15-25252 ________________

Carlos J. Smith, Petitioner,

vs.

The State of Florida, Respondent.

A Case of Original Jurisdiction – Ineffective Assistance of Appellate Counsel.

The Law Offices of Robert David Malove, P.A., and Robert David Malove (Fort Lauderdale), for petitioner.

Ashley Moody, Attorney General, and Kseniya Smychkouskaya, Assistant Attorney General, for respondent.

Before EMAS, C.J., and LOGUE and MILLER, JJ. PER CURIAM.

Petition denied. See Russell v. State, 982 So. 2d 642, 647 (Fla. 2008)

(expressly disapproving of Santiago v. State, 889 So. 2d 200 (Fla. 4th DCA 2004),

Colwell v. State, 838 So. 2d 670 (Fla. 2d DCA 2003) and Colina v. State, 629 So.

2d 274 (Fla. 2d DCA 1993), and holding: “the Second District and Fourth District

in these cases reversed the trial court's revocation based on the failure to establish a

direct nexus between the probationer and the alleged battery. These decisions thus

demonstrate that the Second and Fourth Districts require that the non-hearsay

evidence independently establish that the probationer committed the battery. We

disagree with such a requirement. Corroboration of every aspect should not be

required in order to establish that the probationer committed a battery for the purpose

of revoking probation. On the other hand, the trial court must examine the facts and

circumstances of each individual case to determine whether a particular violation is

willful and is supported by greater weight of the evidence. Thus, whether non-

hearsay evidence, including direct testimony of an observation of victim injury, is

sufficient to support a hearsay allegation of battery is dependent upon the unique

facts and circumstances of each case. Consequently, the trial court must assess the

credibility of the particular witnesses, the reliability of the available evidence, and

the totality of the evidence under the circumstances in each individual case.”)

(Internal citations omitted.)

Free access — add to your briefcase to read the full text and ask questions with AI