Whose Is It: Florida Caselaw, Week of October 16, 2026

A man with an open warrant is backing a truck out of a driveway in Sanford when officers find him. They arrest him and put him in a patrol car. Around his neck is a lanyard with a few keys on it.

While the officers wait on a search warrant for the house, they see a woman in the backyard carrying a bag and a locked safe. She knows the man. She has a child with his brother. One key on his lanyard opens the house. Another one opens the safe. Inside are fentanyl, cocaine and two other controlled substances. He’s charged with two counts of trafficking and two counts of possession, and the trial judge sends it all to the jury, because, in the judge’s words, he “not only had the key to the residence, but he also had the key to the safe.”

This week the Fifth District reversed every count and ordered him discharged.

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. Over and over, the question was who something belongs to. A safe, and whether holding its key makes what’s inside yours. A sentence, and whether a judge who thinks it’s too long gets to change it. A client’s own words to the police, and whether the prosecutor is charged with knowing them even when the prosecutor never heard them. And a death penalty decision, and whether a stray filing can make it for the State Attorney. So that’s the theme. Whose is it. Let’s get into it.

The first case is the one I opened with. Oliver against the State, Fifth District, out of Seminole County, Judge Jessica Recksiedler below. A per curiam opinion, from Chief Judge Jay and Judges Makar and Lambert.

The State’s theory was constructive possession: the two keys, plus the family connection to the woman carrying the safe. The Fifth District walked through it piece by piece. The house belonged to a third party, and the State offered no evidence that Oliver owned it, lived there, or otherwise controlled it. When the premises aren’t in the defendant’s exclusive possession, knowledge and control can’t be inferred from where the contraband was found. They need independent proof. The court said the same went for the safe key. No fingerprints, no DNA, and nothing showing he ever handled the safe or what was in it. A key that gives you access, the court said, establishes only opportunity, and it quoted a Third District case for the line that access to contraband “is simply not a crime, or even an element of a crime,” in Florida.

And the woman didn’t fill the gap. She testified the safe was hers, that she had put it in the house the night before, and that she could open it without a key, with a PIN. Officers saw her carrying it, after Oliver was already in custody, and nothing showed she was acting at his direction. Her possession proved her knowledge and control. It didn’t prove his. Reversed, with instructions to discharge.

The practice point is the motion for judgment of acquittal. Make it element by element, and make the State name its independent proof for each one. When the answer is a key and a relationship, Oliver says that isn’t enough. The deep dive at the end is about exactly this: constructive possession when somebody else could have put it there. Hold that thought.

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 State against Mathis, Second District, out of Manatee County, Judge Frederick Mercurio below. I practice in Manatee regularly, so I read this one closely. Judge Rothstein-Youakim wrote it, with Judges Sleet and Atkinson. A downward departure reversed.

Mathis sold 0.8 grams of crack cocaine to undercover detectives in Bradenton, within a thousand feet of a church. He was sixty-four, with eighteen prior felonies, and his lowest permissible sentence was 69.75 months. At sentencing, a sheriff’s lieutenant testified he’d been an excellent inmate and a trustee in the jail kitchen. Mathis testified he had worked 5,776 hours there as head cook for the jail staff, for no pay and no gain time, and that he spoke to young people in Teen Court. His own lawyer conceded there was no basis to depart. The judge departed anyway, on his own, to a year of community control and two years of drug offender probation, on three nonstatutory grounds: the small quantity of cocaine, the kitchen hours, and the Teen Court talks.

The Second District reversed on all three. First, preservation. The State’s only objection came at the very end, a general objection to the departure. In the Second District, that was enough here, given the concession and a judge who acknowledged one of the grounds was shaky. The court noted that the Fourth District has disagreed with the Second District’s rule on general objections, so outside the Second District, don’t count on it. Then the merits. Drug quantity can’t support a departure, because the Legislature already uses quantity to set the penalties, under the Florida Supreme Court’s Atwaters decision. A judge’s belief that the bottom of the scoresheet is too harsh isn’t a ground either. And the volunteer work, the court said, is undeniably laudable, but it doesn’t relate to the offense or to the defendant’s culpability. In a footnote, the court added that rewarding good behavior in custody belongs to the Department of Corrections, through gain time, and that departing on that basis was, in the court’s words, an impermissible end run around the Department.

Two practice points. If you want a departure, build it on the offense and the client’s culpability, and get the grounds into the record yourself, because a sua sponte departure on grounds nobody argued is the easiest kind to reverse. And remember the last line of the opinion. On remand, the judge can still depart on other grounds, as long as they comply with the Criminal Punishment Code. So the resentencing is a second chance to make the right record.

The next case is Sullivan against the State, First District, out of Escambia County, Judge John Miller below. Judge Rowe wrote it, with Judges Lewis and Nordby. A discovery violation, and a lesson about whose knowledge counts.

Pensacola officers stopped Sullivan for rolling through a stop sign and found two baggies of white powder in his pockets. He wasn’t arrested that night. He was arrested eight months later, and a few weeks after that the baggies finally went to FDLE. At trial, the defense built its case on that delay. In opening and on cross, it attacked the chain of custody and the handling of the baggies during all those months.

Midway through trial, outside the jury’s presence, the State offered testimony to explain the delay. Sullivan had agreed to work as a confidential informant and provide substantial assistance, and he never delivered. The prosecutor said the State had only just learned about it. The trial judge found no discovery violation and let the testimony in. After the State rested, the defense called the girlfriend of Sullivan’s son, who testified that the son had put the baggies in Sullivan’s pocket without his knowledge.

The First District reversed for a new trial. Rule 3.220 requires disclosure of the substance of any oral statement the defendant made, and Sullivan’s agreement to act as an informant was a statement. It didn’t matter that the prosecutor didn’t know, because prosecutors are charged with constructive knowledge of what their police officers know. The trial court’s Richardson inquiry stopped after deciding the violation wasn’t willful. It never asked whether the violation was trivial or substantial, or how it affected the defense’s preparation. Under the Schopp harmless error test, the court couldn’t say beyond a reasonable doubt that the defense would have run the same strategy, because, quoting the Sixth District, an offer to be an informant implies actual knowledge of drugs or drug dealing.

The court acknowledged that Sullivan no doubt knew what he had told the police. But it held that defense counsel is not charged with constructive knowledge of the client’s statements to police. So for discovery, the State is charged with what its officers know, and defense counsel isn’t charged with what the client told the police. Ask your client about any deal or offer to cooperate before you build a delay defense, and demand the substance of every statement anyway.

The next case is State against Morris, Third District, out of Miami-Dade County, Judge Alberto Milian below. A per curiam opinion on rehearing, from Chief Judge Scales and Judges Gordo and Gooden. It’s a capital case, and it’s about who decides whether the State seeks death.

Morris was first indicted for one murder, and the State filed notice that it would seek the death penalty. Mid-trial, two more people were murdered, one of them a key witness, and the court declared a mistrial. A new indictment followed, charging Morris with all three murders, and the State filed new notices of intent to seek death. Then, in March of twenty twenty-one, a deputy chief assistant in the State Attorney’s legal division, doing routine tracking audits, filed a form called an announcement of death penalty waiver as to Morris. By affidavit, she said it was a record-keeping item meant for the original indictment. She didn’t know about the new one. The waiver never went through the office’s death penalty committee, was never announced in court, and went unnoticed by everyone, including penalty-phase counsel, who kept preparing mitigation for more than three years.

The trial judge acknowledged the waiver was probably filed in error, but said the State was “stuck” with it, because death is different, and ruled that the case would proceed as a non-death case on every charge.

The Third District granted certiorari and quashed the order. The decision to seek death belongs to the State Attorney under the separation of powers, and the court said no prosecutor exercising informed discretion ever decided to waive death on these charges. Extending a filing aimed at one indictment to another was the court supplanting a prosecutorial decision, and the opinion called it the kind of gotcha result courts have long refused to endorse. A footnote points to rule 3.112, which makes a waiver directed to a death penalty charge effective only when the State makes it on the record. The court said its holding should be narrowly construed, and that the case proceeds as capital until the State formally waives death on the record.

For capital defense, take two things from this. Under rule 3.112, a death penalty waiver is effective only when the State makes it on the record, so if one turns up in the file, get it announced before you rely on it. And the opinion notes that even with comparative proportionality review gone on appeal, a capital defendant can still argue to the penalty-phase jury about a codefendant who was spared death.

The next case is Scott against the State, Third District, out of Miami-Dade County, Judge Ramiro Areces below. Judge Fernandez wrote it, with Judge Lobree, and Judge Miller concurred. A life sentence on a probation violation, and a certified conflict.

In twenty oh eight, Scott took a negotiated plea in four cases, including armed robbery and armed burglary: ten years in prison followed by five years of probation. The State had filed notice that it would seek a prison releasee reoffender sentence, and it waived that in exchange for the plea. The judge told him at the plea that if he violated his probation, he could be looking at up to life. Nobody told him life would be mandatory.

Two holdings first. His probation didn’t start when he finished his Miami-Dade prison term, because he was still serving an unrelated Broward sentence, and under section 948.012, probation starts on release from incarceration. And under the Third District’s Foulks decision, when probation is revoked, the State can seek the reoffender sentence it waived at the plea, as long as the defendant qualified at the original sentencing. The facts that trigger the reoffender sentence, like the release date, are ministerial, so the court held no jury was needed. Mandatory life, affirmed.

But the court certified conflict with the First District’s Hill decision from last year, which went the other way on materially similar facts. Hill relied on the Florida Supreme Court’s Mack decision, which bars a habitual offender sentence imposed for the first time on revocation. Judge Miller’s concurrence lays the two lines side by side, and notes that then-Judge Tanenbaum, in Hill, questioned whether a reoffender sentence imposed without a jury finding survives the Supreme Court’s Erlinger decision. So if you’re negotiating a plea where the State waives a reoffender sentence, the protection you think you’re getting depends on your district. For now, in the First District, under Hill, the waiver holds unless the State proved eligibility or reserved the right at the original sentencing. In the Third, it may come back at a violation hearing. Put it in the plea agreement in writing, and preserve the Erlinger issue.

One more on the criminal side, and it ties back to the stand your ground point from episode thirteen. Gainvors against the State, Sixth District, out of Charlotte County. A man shot and killed someone who had come to his front door shouting threats and daring him to use his gun. The man was convicted of manslaughter and sentenced to fifteen years. The Sixth District had affirmed without a written opinion, and this week the majority struck his pro se rehearing motion, because he was represented by counsel. Judge Smith dissented. Working from the doorbell video, Judge Smith would have found that the immunity denial wasn’t supported by competent, substantial evidence. The trial court had asked whether the defendant had no other choice but to use his firearm, and it counted his tactical position and his silence against him. The dissent said the statute has no duty to retreat and no warning requirement.

But even the dissent would have affirmed, because under the Florida Supreme Court’s Boston decision, an error at the pretrial immunity hearing is cured once a jury finds guilt beyond a reasonable doubt. And a footnote explains why the defendant never got prohibition review: he filed the petition a month before trial, never told the court trial was coming, and never asked for a stay. So file the prohibition petition, tell the appellate court your trial date, and move for a stay. Otherwise the verdict moots the pretrial review you had.

A few short ones to finish the criminal side.

State against Gunter, Fifth District, out of Marion County. A charge for an altered sexual predator designation on a driver license was dismissed, based on a Fifth District panel decision holding the designation was compelled speech. The full court was already rehearing that panel decision, and the full court went the other way. The Florida Supreme Court declined review, and the United States Supreme Court denied certiorari on October fifth. Because Gunter’s case was still in the pipeline when the controlling decision came down, the dismissal was reversed. The lesson is timing. A win built on a panel opinion the full court is rehearing isn’t a win yet.

Dacosta against the State, Sixth District, out of the Orange County Court. After a no contest plea to unlawful contracting on a home renovation job, the trial court ordered about twelve thousand dollars in restitution, based on check stubs. The State conceded error on appeal, under older caselaw requiring nonhearsay proof. The court rejected the concession. Since twenty twenty-one, section 775.089 lets the court consider hearsay at a restitution hearing if it has minimal indicia of reliability. The trial court found the stubs reliable, and nobody challenged that finding. Affirmed. So at a restitution hearing, attack the reliability of the paper itself, because calling it hearsay won’t keep it out.

And Walker against the State, First District, out of the Alachua County Court. A defendant representing himself on a trespass charge asked for a bench trial during his Faretta colloquy, and confirmed it twice under oath. On appeal, he argued he never validly waived a jury. Affirmed. The court held that the Faretta colloquy, which covered the difference between a jury and a bench trial, supported a valid waiver, and that any error was invited anyway, a doctrine it applies even to fundamental error.

Now the injury side, and it was a quiet week. Two items, both procedure.

First, a rule change with a date to calendar. Effective January first, twenty twenty-seven, the Florida Supreme Court amended rule 1.200. When a case doesn’t reach trial during the trial period set by court order, meaning the window the case management order gives for the trial, the court’s order setting a new trial period now has to account for the availability of the parties, along with the needs of the case and the court’s resources. The Committee had proposed a different change, and the Court went with this one instead. The rule names the parties’ availability, so if your client can’t make a reset period, put that in front of the court when the case gets bumped.

Second, a reminder from the Sixth District, in Robertson against Orange County. An order that just grants summary judgment, without more, usually isn’t an appealable final order, and this one wasn’t. It isn’t one of the nonfinal orders you can appeal either. The appeal was dismissed as premature. If you win or lose on summary judgment, make sure a final judgment gets entered before anyone files a notice of appeal.

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. This week it’s constructive possession when somebody else could have put it there: what the State has to prove when contraband turns up in a place your client shares with someone else.

Start with the elements. To prove constructive possession, the State has to show the defendant knew the contraband was there and had the ability to exercise dominion and control over it. The rule this week turned on comes from the Florida Supreme Court in Brown against the State, in nineteen eighty-three. When the premises are in joint possession, rather than the defendant’s exclusive possession, knowledge and the ability to control will not be inferred from ownership. They have to be established by independent proof.

But Brown is also the limit, and you need to know it before you rely on the rule. In Brown, officers searched the defendant’s house in his presence and found marijuana scattered through the living room, the kitchen, the family room, the garage and a bedroom, much of it in plain view. The Florida Supreme Court held that joint occupancy, with or without ownership, is enough for a conviction when the contraband is in plain view in the occupant’s presence. So plain view in a common area can carry the State’s case. A hidden item in a shared space is different, and Brown itself pointed to an earlier case where drugs in a jointly used dresser drawer, out of sight, didn’t show knowledge.

Now the key cases. Stevens against the State, Third District, twenty thirteen, the case Oliver quoted. The only connection between the defendant and the drugs was a key to the front door of an apartment where drugs sat in plain view. He hadn’t gone in. The court reversed with directions to discharge, comparing him to a next-door neighbor, a housekeeper or a landlord who might hold a key too. And Stevens itself names the cases on the other side of the line: where the key is one of several factors pointing to guilt, and where the defendant is found inside the room with the contraband in plain view.

Then Melton against the State, Second District, twenty twenty-one, out of Hardee County. Deputies executed a warrant on a property with a house, a trailer, a car and a shed. Melton was under the hood of the car, with the door open and the key turned so the radio was playing. The court held the State proved he was controlling the car, because he was actively working on it with no one else around. But the synthetic cannabis was inside a closed pillowcase on the passenger seat, so nothing showed he knew it was there. The rolling papers in the open console were in plain view, so that count stood. And the methamphetamine was in a bag in an open shed somewhere between thirty and sixty feet away, with nothing of his inside and nobody testing for fingerprints. The trial judge had called the shed steps away. The Second District said that may be true, but it’s a significant number of steps. The court also restated a rule to keep in your pocket: in a jointly occupied place, constructive possession of one item doesn’t prove knowledge of or control over another. Two counts reversed with discharge.

And Roberts against the State, First District, twenty twenty-one, out of Alachua County. A driver ran from a traffic stop, and cocaine was found in the car he left behind with a passenger. The court said the flight and the rest of the State’s evidence, including jail calls, may have been enough to raise a jury question about knowledge. It wasn’t enough on control, because the State never established where in the car the cocaine was, who owned the car, or how long he’d been in it, and nothing tied the cocaine to him rather than to the passenger. The First District listed the usual forms of independent proof: fingerprints, an admission, and other incriminating statements or circumstances. Reversed.

Then the standard. In twenty twenty, in Bush against the State, the Florida Supreme Court abandoned the special standard for circumstantial evidence cases. You no longer win a judgment of acquittal by showing the evidence is consistent with a reasonable hypothesis of innocence. The question is simply whether the State presented competent, substantial evidence of each element. Melton, Roberts and now Oliver all came after Bush, and all three ended in a reversal. So the argument to make is that there’s no competent, substantial evidence of a particular element.

So here’s the working playbook.

First, find out who else had access, before trial. Who owned the house or the car, who lived there, who else was present, and who had a key. In Oliver, the house belonged to a third party and another person was seen carrying the safe. In Roberts, the State never established who owned the car. Get those answers from the officers in deposition, and if the State can’t answer them at trial, neither can the jury.

Second, take the case apart item by item. Don’t let the State prove possession of the whole house. Melton separated the pillowcase from the rolling papers, and the car from the shed. For every item, ask where it was, whether it was in plain view, and what connects it to your client in particular.

Third, know what testing was and wasn’t done. Oliver noted there was no fingerprint or DNA evidence, and Melton noted that nobody tested the shed for fingerprints. Whether to ask for testing yourself is a strategic call you make with your client, because a test can come back the wrong way. But you should know before trial whether the State did it, because the absence of scientific proof is part of your motion.

Fourth, protect against the statement. The most common independent proof is the client’s own words: an admission at the scene, a remark in the back of the patrol car, or a jail call. Roberts had jail calls in it. Sullivan, this week, had a cooperation agreement the State never disclosed to defense counsel. Tell your client not to discuss the case on the phone, and get the substance of every statement in discovery.

Fifth, move for judgment of acquittal element by element, at the close of the State’s case, and renew it at the close of all the evidence. Frame it under Bush: there is no competent, substantial evidence of knowledge, or of dominion and control, for this item. And ask for discharge. In Oliver, Stevens and Melton, the remedy was discharge.

And the limit, stated plainly. Brown means plain view in a common area can carry the State’s case, and Stevens means a key can count when it’s one of several factors. Flight and nervous behavior can help the State on knowledge, as Roberts suggests. This is a tool for the case where the State’s whole theory is proximity, a key or a relationship. I’m telling you where the line is as these courts drew it, not that every trial judge will see your facts the same way.

If you want the set, Oliver, Brown, Stevens, Melton and Roberts, plus a one-page element-by-element judgment of acquittal worksheet built on those five steps, email me and I’ll send them over.

So that’s the week. A key to a safe that wasn’t enough to make the drugs inside his. A departure reversed because drug quantity and good works in jail aren’t grounds the Code recognizes. A new trial because the State is charged with what its officers know, and a death penalty waiver that didn’t bind the State Attorney because no prosecutor ever made the decision. A mandatory life sentence that depends on which district you’re in, a stand your ground dissent with a lesson about stays, and three short ones on timing, restitution and invited error. On the injury side, a rule change to calendar for January and a reminder to get a final judgment.

The pattern, if you want one: in most of these, the outcome turned on whose decision, whose knowledge or whose possession it really was. When the State’s case assumes the answer, make it prove it.

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.

If you want any of this week’s opinions, or the judgment of acquittal worksheet from the deep dive, 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.