The Counting Week: Florida Caselaw, Week of August 21, 2026

A high school dean searched a student over a vape. She grabbed it back, fought the handcuffs, and kept fighting through a twenty second walk down the hall.

The trial court said that was two crimes.

The Fifth District just counted again.

I'm Rory Safir, and this is Reasonably Safir.

This one is the caselaw edition: the decisions Florida's appellate courts handed down this week, case by case, for the lawyers who'd rather hear them than read them.

Here's the thing about this week. Almost every one of these cases comes down to counting. How many crimes fit inside one act. How many years before the law has to look at a juvenile's sentence again. How high a judge can count when sentencing a child. And in the back half, the one that should worry you most: how many times a person gets to ask the courts for relief, and what happens when the answer becomes zero.

So that's the theme. The counting week. Let's get into it.

The first case is the one from the cold open. K.B., a child, against the State, out of the Fifth District, on appeal from circuit court in Marion County, Judge Bradley King below. Judge Edwards wrote it.

The setting is a high school. Deans searched K.B. after a report that she'd been seen with a vape device, with a school resource officer standing by. During the search she snatched the device away from the administrator. The officer moved in to restrain her and get it back, and when she kept resisting, he arrested her and called for a second officer. She kept resisting after the cuffs went on. The officers walked her to their office, a twenty second walk, where she kept refusing commands, pulled away, cursed, and at one point, still handcuffed, somehow got the vape back and blew the vapor in the second officer's face.

The trial court adjudicated her delinquent on two counts of resisting arrest without violence. The reasoning: one act of resisting against the first officer at the arrest, and a second act against the second officer in the office.

The Fifth District reversed the second count, and the analysis is worth having in your pocket. Start with preservation, because K.B. never raised double jeopardy below. Didn't matter. A double jeopardy violation is fundamental error, so it can be raised for the first time on appeal. That's Haag out of the Second District.

Then the merits. You can be convicted of multiple counts of resisting without violence, but only if the behavior amounts to separate acts. Continuing resistance to one arrest can be a single act even when several officers are involved. And Florida gives you a five factor test for whether the conduct was one continuous act: separate victims, separate locations, a temporal break, an intervening act, and whether a new criminal intent formed. That's Fleming and Vasquez out of the Fifth District.

Run the factors here. Two officers, yes, but working as a joint effort to arrest and control one person. The location stayed the school. No break in time. No intervening act. And her intent never changed: get the vape back and resist. One continuous episode, one act, one count. The second adjudication is a double jeopardy violation, reversed and remanded to vacate it and resentence.

The takeaway travels well beyond a school hallway. When the State stacks resisting counts, or any counts, off one continuous encounter, walk the five factors. And if trial counsel missed it, the court can still reach it on appeal, because a double jeopardy violation is fundamental error.

The next case is Victor Christian Wriden against the State, Sixth District, out of Orange County, a 2012 case. Judge Smith wrote it. And note who filed it: Wriden himself, pro se, from South Bay.

Wriden was sixteen at the time of the offenses. On Count One he was convicted of first degree murder without use of a weapon, and the jury made a special finding that he did not actually kill, did not intend to kill, and did not attempt to kill the victim. He got 540 months, forty five years, running concurrent with his sentences for burglary of a dwelling with an assault or battery and robbery with a deadly weapon. The judgment set his sentence review hearing at twenty five years for everything.

He filed a motion to correct an illegal sentence under rule 3.800(a). The trial court denied it. And on appeal, the State conceded error, because the review clock was set wrong.

Here's the ladder. A juvenile convicted of a capital murder who did not kill, intend to kill, or attempt to kill is sentenced under one provision, and if the term is more than fifteen years, the statute entitles him to a sentence review after fifteen. The life felonies, the burglary and the robbery, fall under a different provision, and there the review comes after twenty. Not twenty five for anything. Fifteen on the murder, twenty on the rest.

The Sixth District remanded to fix the judgment, and called the fix ministerial: no new evidence, no discretion, so Wriden doesn't even need to be present.

Two takeaways. First, the juvenile review hearing intervals are statutory, they turn on the special jury findings, and they are easy to set wrong at sentencing. Check the judgment against the findings, every time. Second, a pro se prisoner just took a decade off his wait by reading the statute more carefully than everyone else in the courtroom. Sixteen years into the case.

The next case is short and it belongs right here. D.O., a child, against the State, Fifth District. A unanimous panel reversed D.O.'s misdemeanor sentences because they exceeded the statutory maximum for a juvenile, and otherwise affirmed. One sentence of law, and it's the same lesson as Wriden wearing different clothes: in juvenile sentencing, the ceiling and the clock both come from the statute, and this week both got set wrong in different courtrooms.

The next case is a pair of suppression losses, one from each end of the state. Ptomy against the State out of the First District, from Escambia County, Judge John Simon below. And Q.C., a child, against the State out of the Third District.

Ptomy is an affirmance on probable cause to search a vehicle, and the opinion is barely longer than its citations. But read the citations, because together they are the current state of the law on cannabis odor and car searches. Hatcher: probable cause is judged on the totality of the circumstances. Aldama: probable cause existed where officers smelled marijuana and the driver's answers dispelled any lawful explanation for the smell. Hoehaver: the odor of burnt marijuana coming from inside a vehicle supplied probable cause by itself.

Q.C. is thinner still: a juvenile's motion to suppress, denied below, affirmed on the testimony and the totality of the circumstances, with no facts recited at all. Whatever the facts were, they stay between the record and the panel.

The takeaway is sobering if you handle these motions. On vehicle searches, the First District just restated that the smell of cannabis still carries. If your suppression theory is the odor alone, know the citation wall you're walking into, and build the motion on what the officer did after the smell, where the answers, the timing, and the scope still give you something to work with.

Quick pause, colleague to colleague. My firm handles DUI, criminal defense, and personal injury across Tampa Bay. If a case walks through your door that you'd rather send out, call or text 727-472-8096. I gladly accept referrals.

The next case is Quinton Keston Pope against the State, Fifth District, and it's the happiest procedural story of the week. Pope missed his appeal from an April 2026 judgment and sentence out of Duval County. He petitioned for a belated appeal. Granted. And the mechanics are elegant: the court directs that a copy of its own opinion be filed with the trial court and treated as the notice of appeal.

Many folks, including a surprising number of lawyers, believe a blown appeal deadline is the end of the story. In Florida criminal cases it often isn't. The belated appeal exists precisely for the client who says nobody filed my appeal, and this week it worked.

The next case is St. Fabre against the State, First District, out of Alachua County, and this one is pure procedure, which is exactly why it will save somebody a malpractice call. Another pro se litigant, by the way.

St. Fabre was resentenced in November after admitting he violated community control. Seventeen days later he filed a motion under rule 3.800(a), claiming the sentences were illegal. Wrong rule: a 3.800(a) motion is unauthorized while the window to appeal the sentence is still open. But the trial court didn't bounce it. It treated the motion as a timely 3.800(b)(1) motion, the rule that does apply during that window, and denied it on the merits.

Complication: St. Fabre had filed his notice of appeal one day before the trial court ruled. So the First District asked whether the trial court's order should be quashed, since normally a pending appeal divests the trial court of jurisdiction. Answer: no. Courts are directed to treat a motion as filed under the correct postconviction rule, that's Steinhorst from the Florida Supreme Court, and a 3.800(b)(1) motion stays rendition of the sentence, so the trial court kept jurisdiction to rule on it even with the notice of appeal already in.

Then the door swings. Having said the trial court's order stands, the First District dismissed this appeal, because an order denying a 3.800(b)(1) motion cannot be appealed separately. The only place to challenge it is inside the direct appeal of the sentence, and St. Fabre's direct appeals are already pending.

Three rules to keep from one little opinion. Courts read your motion under the rule that fits, not the rule you wrote on it. A 3.800(b)(1) motion keeps the trial court in the game even after a notice of appeal. And the denial of that motion travels with the direct appeal, never on its own.

Two short ones to close the week. Together they draw the boundary of the courthouse door.

Byron Tisdol petitioned the Third District for habeas corpus in a case going back to 2008. Denied, on authority that every postconviction lawyer should be able to recite. Habeas is not a vehicle for collateral relief that belongs in a rule 3.850 motion. And habeas is not a way to take additional appeals of issues that could have been raised, should have been raised, or already were raised. The writ is narrow, and the districts keep it narrow.

And Aljanard Jackson petitioned the Fifth District for habeas in a 2009 Sumter County case. The court had already ordered him to show cause why he shouldn't be sanctioned for knowing misrepresentations of fact in his filings. His response didn't move them. The court found he is abusing the judicial process and barred him from any further pro se filing about that case. The clerk is directed to reject anything he sends unless a member in good standing of The Florida Bar signs it, and the opinion goes to the prison for consideration of disciplinary proceedings. The court quoted its own precedent for the sentiment: enough is enough.

One more thing before I let you go, because ten minutes of holdings is a digest, and this show doesn't do digests. Every Friday this segment takes the one doctrine the week actually turned on and gets into the deep end of it. This week the courts spent their time counting, so let's talk properly about how Florida counts crimes.

Start with the promise. Double jeopardy means the government gets one shot: one prosecution after an acquittal, one prosecution after a conviction, and one punishment for one offense. The whole doctrine hangs on three words, the same offense. And in practice that phrase hides two completely different questions. Mixing them up is how good motions die.

Question one: the State charges two different crimes off one act, and you have to decide whether they're really the same offense. Florida answers with the same elements test from Blockburger against the United States, and the Legislature wrote it into section 775.021(4): offenses are separate if each requires proof of an element that the other does not, and you run that comparison on the statutory elements alone, without regard to the accusatory pleading or the proof adduced at trial. The statute even tells you which way the tie breaks, and this part belongs on your office wall. The rule of lenity is the old default in criminal law. Scalia and Garner's Reading Law states it plainly: ambiguity in a statute defining a crime or imposing a penalty is resolved in the defendant's favor, and Chief Justice Marshall was explaining that rule back in 1820. Florida wrote the default into the first subsection of this very statute. And then, for this one question, the Legislature switched it off by name. The stated intent is to convict and sentence for each offense in the episode, and lenity does not get a vote.

Then it carves three exceptions, and the exceptions are where the defense wins live. Offenses with identical elements of proof. Offenses that are degrees of the same offense. And lesser offenses whose statutory elements are subsumed by the greater one. If your pair of convictions fits any of those, the second one goes.

And the exceptions have teeth. The Florida Supreme Court showed how sharp in a case called Gil against the State, on facts every traffic lawyer will recognize. A driver pled to misdemeanor driving while license suspended in county court, and that same day the State filed a felony habitual traffic offender charge from the same stop. Here's the part worth slowing down for. Those two charges pass the same elements test, because each requires proof of something the other doesn't: knowledge of the suspension for the misdemeanor, the habitual designation for the felony. The felony prosecution died anyway. Both offenses live inside section 322.34, the habitual offender crime is the more serious degree of the same offense, and that's exception two doing exactly what it was written to do. The Court gave a second, independent reason on top: the misdemeanor subsection by its own text does not even apply to habitual traffic offenders.

Question two is where Florida practice goes wrong most often. Lawyers talk about Blockburger as if it were one test. It is two. Blockburger asks whether offenses are the same in law, which is the elements comparison we just ran, and separately whether they are the same in fact. Multiple punishments are barred only when the charges are the same in both. Argue the wrong half and you lose a motion you should have won.

The in fact question is the one that governs when the State charges the same crime twice. Two counts of resisting. Three counts of battery. The elements are identical by definition, so the elements test tells you nothing at all, and the whole fight is how many acts the conduct actually contained.

The Florida Supreme Court answered that in 2024, in Trappman against the State. Officers came to serve a warrant on Trappman's wife. He shoved a sergeant, and then he sicced a pit bull on that same sergeant. Two batteries, one victim, roughly a minute apart, and the State conceded the whole thing was a single criminal episode. Both convictions stood.

The test is the distinct acts test, and the phrase to carry into your next motion is successive impulses. In the Court's own words, acts are distinct when they result from successive impulses even when the character of the acts is the same. A separation of time, place, or circumstance can show it. So can escalation. Neither one is required. And the Court was specific that this gets decided on the evidentiary record, which means the trial testimony is what settles it.

Trappman also cleaned house on its way out. It disapproved a Fourth District case, and it disapproved a Fifth District case called Rivera for applying a categorical rule instead of asking whether the acts were distinct.

Now set K.B. beside it. The Fifth District ran a five factor test from its own line of cases: separate victims, separate locations, a temporal break, an intervening act, and whether a new criminal intent formed. It found one continuous act. Two officers, yes, but a joint effort to arrest one person, no break in time, no new location, no intervening act, and one unbroken intent to get the vape back and keep resisting.

Now, those five factors are not wrong. But Trappman tells you exactly what they are, and it is not what most of us treat them as. The Court took the older line of cases about looking for a separation of time, place, or circumstances, and said those points to factors that may EVIDENCE successive impulses. Then it said this: the touchstone of the analysis must be whether there were such successive impulses.

Sit with that, because it reorders your motion. The factors are evidence. The impulse is the test. A separation in time is not a thing you win on, it is a thing you use to prove the thing you win on. And that cuts both ways, because the Court also said a variation in how the prohibition got violated is not necessary to find distinct acts. You can lose with no gap at all if the record shows a fresh decision.

One observation, and I'll flag it as mine rather than anything either court said. K.B. does not cite Trappman. It does not use the distinct acts language, or the word impulse, anywhere. It frames the question as whether her actions were one continuous act, and works the factors to get there, without ever naming the impulse. If you are litigating one of these, argue the touchstone and use the factors as your evidence for it, and put the Supreme Court case in your motion, because it is controlling, it is newer, and it has already told the Fifth District once that this question has to be asked.

So here's the working playbook when the State stacks counts. First, name which question you're in, because Blockburger has two halves and they take different arguments. If the counts are different crimes, run the elements through 775.021(4) and hunt the three exceptions. If the counts are the same crime multiplied, you are in the distinct acts question: the touchstone is whether the record shows one impulse or two, and the time, place and circumstance factors are how you prove it rather than the test itself. And if the violation only surfaces after the plea or the verdict, remember what K.B. did with preservation. She never raised it below, and the court reached it anyway, because a double jeopardy violation is fundamental error.

There's a full write up of double jeopardy on the firm's site, in the criminal defense section under legal defenses: the three protections, the same elements test, exactly when jeopardy attaches, and the mistrial rules. And if you want this week's opinions along with a one page walkthrough of the five factors and the three statutory exceptions, email me and I'll send the set.

So that's the week. One act that the State counted as two. A review hearing set a decade late, fixed because the prisoner himself did the math. A child's sentence over the statutory ceiling. Two odor searches affirmed on the totality. One appeal resurrected after the deadline, one appeal dismissed as the wrong vehicle, and one man told the courthouse door is closed to his own handwriting.

The pattern, if you want one: Wriden, St. Fabre, and Jackson all filed their own papers this week. One beat the Attorney General. One got his motion read under the right rule and still lost the appeal on procedure. And one lost the right to file at all. The system gives second chances and it keeps count of them, and the difference between those three outcomes came down to precision.

One caveat, colleague to colleague. These are summaries, most of these decisions aren't final until the rehearing window runs, and nothing in this episode is legal advice. Pull the opinion before you rely on a word of it.

I'm Rory Safir. If you want any of this week's opinions, email me at Rory at the Safir lawyer dot com and I'll send them over.

Take care of yourself, and take care of your clients.