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K.R. v. State

Florida Court of Appeals, Third District

January 2, 2020

K.R., a Juvenile, Appellant,
v.
The State of Florida, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 18-826 Orlando Prescott, Judge.

          Carlos J. Martinez, Public Defender and Deborah Prager, Assistant Public Defender, for appellant.

          Ashley Moody, Attorney General, and Kayla Heather McNab, Assistant Attorney General, for appellee.

          Before FERNANDEZ, HENDON, and MILLER, JJ.

          FERNANDEZ, J.

         K.R., the juvenile, appeals the trial court's order withholding adjudication of delinquency and placing him on probation. We reverse as to the first issue K.R. raises because he is correct regarding the charge for carrying a concealed weapon. However, we affirm on K.R.'s second issue on appeal because the trial court did not abuse its discretion in recalling a State witness.

         The State charged K.R. with violating section 790.01(1), Florida Statutes (2017) by carrying a concealed weapon and violating section 790.115(2), Florida Statutes (2017), by possessing a weapon on school property. The weapon alleged in each count was "a knife."

         At the adjudicatory hearing, the State called two witnesses: Officer Fonseca, a Miami-Dade Schools Resource Officer, and Clinton Bales, the Assistant Principal at Gateway Environmental K-8 Center, where K.R. was a student. On November 7, 2017, the day of the incident, Bales met with K.R., who was thirteen-years-old at the time, in Bales' office. Bales searched K.R.'s backpack, and beneath K.R.'s folders, notebooks, and trash, Bales found a steak knife with a four-and-a-half-inch blade and a black handle.

         When Bales began describing the events that led K.R. to his office that day, the defense objected to hearsay, and the following sidebar discussion occurred:

STATE: For this line of questioning I'm going to be asking [Bales] how he got involved in the case which is present sense impression what led to the search which is going to be the statements made by other students.
DEFENSE: Judge, at this time there's no relevance to that. I understand that that would be relevant if Defense filed a motion to suppress as to why he searched the bag, but Defense did not file a motion to suppress, so how or why he searched the bag and all of that is not relevant to the account itself. I know the State would like to have a story but in this case it's prejudicial, in fact it much more substantially outweighs the probative value. This doesn't go to proving any element of the [indiscernible words].
JUDGE: So you have no problem with them saying who brought the child down and searched the bag?
DEFENSE: No, we did not file a motion for that.
JUDGE: Okay…. Since reasonable suspicion or probable cause is not being contested by the Respondent, please proceed.

         The defense claimed that K.R. had gone fishing with his father, so he had a knife in his backpack. Bales did not notice fishing bait, other fishing-related items, or an odor of fish coming K.R.'s backpack. The State rested after it called Bales and Officer Fonseca. K.R. then moved for judgment of dismissal, arguing that the State failed to prove the knife qualified as a concealed weapon for the unlicensed carrying count and that the State failed to prove K.R. possessed the knife on school property. At the end of K.R.'s argument, the trial court sua sponte reopened the State's case and called Bales back to the stand, stating:

JUDGE: The argument concerning about it being on school property, the State bifurcated its testimony of Mr. Bales because probable cause and reasonable suspicion were not an issue so they started the testimony from bringing him to the office.
I'm going to let them call Mr. Bales to determine where they got him from, okay? Call your witness. Because it was done through concession, so all the other information that Mr. Bales gleaned during this matter were not brought before this Court, and it was at the Court's insistence that we just jump over it based upon the concession made by ...

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