IN THE DISTRICT COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT. CASE NO. 5D Lower Tribunal Case No CF AXXX-XX

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1 IN THE DISTRICT COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT RECEIVED, 5/16/2017 3:34 PM, Joanne P. Simmons, Fifth District Court of Appeal DANA LOYD, vs. CASE NO. 5D Lower Tribunal Case No CF AXXX-XX Appellant, STATE OF FLORIDA, Appellee. / MOTION TO RECONSIDER ORDER DENYING BOND PENDING APPEAL AND/OR IN THE ALTERNATIVE TO REMAND TO CORRECT SENTENCING ERRORS Appellant, DANA LOYD ( LOYD ), by and through undersigned counsel, files this Motion to Reconsider Order Denying Bond Pending Appeal and/or in the Alternative to Remand to Correct Sentencing Errors, and, as grounds therefor, would show as follows: I. RELIEF REQUESTED Appellant respectfully requests this Court: 1. Reconsider its May 9, 2017, Order affirming the trial court s denial of supersedeas bond ; and either 2. Release LOYD on bond pending her appeal; or, in the alternative 3. Remand this matter to the Trial Court to correct sentencing errors, and

2 release LOYD on bond pending the Trial Court s resentencing. II. PROCEDURAL HISTORY 1. The procedural history in the proceedings below is set forth in detail in Appellant s April 17, 2017, Motion for Review of Trial Court s Order of April 6, 2017, Denying Motion for Bond Pending Appeal (hereinafter Motion for Review ). 2. On May 1, 2017, this Court entered an Order remanding the matter to the trial court to issue an order that complies with Florida Rule of Criminal Procedure and states, in writing, the court s reasons for denying Appellant s motion for post-trial release. 3. On May 2, 2017, the Trial Court entered its Order Denying Motion for Post-Trial Release, finding that there were no grounds for appeal that appeared fairly debatable[,] and that the State s case was strong and included an audiotaped, unequivocal admission of guilt by the Defendant. 4. On May 9, 2017, this Court entered an Order affirming the trial court s denial of supersedeas bond[.] III. MOTION Appellant respectfully requests this Court reconsider its May 9, 2017, Order affirming the trial court s denial of supersedeas bond. Not only are the issues 1 1 In Appellant s original Motion for Review, Appellant noted that undersigned counsel had not, at that time, had the opportunity to review the trial transcript in this matter. (See id. at n.2). The undersigned has since reviewed the trial 2

3 raised in Appellant s Appeal not frivolous, but, at least one of them illegality of the sentence imposed constitutes a clear violation of the law by the Trial Court. Specifically, the Trial Court entered, inter alia, the following special conditions of community control and probation: c. (23) Other: Remove all information from the internet regarding the victim, victim s father and Dean Tong within 24 hours of release d. (24) Other: No mention of the victim or victim s father for any reason * * * f. (26) Other: Do not access or participate on any social media during supervision g. (27) Other: Do not blog/write/talk about the victim h. (28) Other: Do not own any material related to the victim or victim s family * * * j. (30) Other: No early termination of any supervision transcript, and believes, inter alia, that the following issues, largely consistent with those outlined in Appellant s Motion for Review, include, but are not limited to: (1) improper prosecutorial remarks during closing argument; (2) improper judicial comments on the evidence in the presence of the jury, and denial of motion for mistrial; (3) improper admission of Williams Rule evidence; (4) improper denial of proposed jury instructions; (5) illegality of sentence; and (6) improper restriction of opening statement. 3

4 (See Appendix A, Special Conditions of Community Control and Probation, attached hereto). Special conditions 23, 24, 26, 27, and 28 are illegal, as they are so punitive as to be unrelated to rehabilitation. Rodriguez v. State, 378 So.2d 7, 9 (Fla. 2d DCA 1979). LOYD s conviction for falsely reporting child abuse involved LOYD s making of a telephone call, and reporting an instance of sexual abuse. LOYD s use of the internet and social media have no relationship to the crime of which she has been convicted, and instead relate to noncriminal conduct. Id. at 10; cf. Kasischke v. State, 991 So.2d 803, 832 n.33 (Fla. 2008) ( Other jurisdictions frequently condition a sex offender's [2] ability to live in the community on total abstinence from... the Internet[.] ) (emphasis added). Moreover, special condition 30 must be stricken as a matter of law because a trial judge is not authorized to divest the Department of Corrections of its authority to recommend early termination of probation. Baker v. State, 619 So.2d 411, 412 (Fla. 2d DCA 1993) (emphasis added) ( As a special condition of probation, the trial court provided that the defendant could not be considered for early termination of probation. This condition must be stricken[.] ); see also Fla. Stat (3), LOYD, of course, is not a convicted sex offender, and therefore she does not possess a particular deviancy that needs to be curbed by forbidding her use of otherwise benign services[,] such as the internet. Cf. Kasischke, 991 So.2d at

5 Based on these sentencing errors, as well as the fairly debatable issues LOYD intends to raise to raise before this Court, (see supra at n.1), LOYD should be released on bond pending the outcome of her appeal, or, at the very least, pending the Circuit Court s resentencing of LOYD. WHEREFORE, Appellant, DANA LOYD, prays this Honorable Court grant her Motion to Reconsider Order Denying Bond Pending Appeal and/or in the Alternative to Remand to Correct Sentencing Errors, and enter an Order 1. Releasing LOYD on bond pending her appeal; or, in the alternative 2. Remanding this matter to the Trial Court to correct sentencing errors, and releasing LOYD on bond pending the Trial Court s resentencing. Respectfully submitted, GRAY ROBINSON, P.A. Attorneys for Defendant/Appellant 333 S.E. 2 nd Avenue, Suite 3200 Miami, Florida Telephone: (305) Facsimile: (305) brian.bieber@gray-robinson.com alex.strassman@gray-robinson.com By: s/brian H. Bieber BRIAN H. BIEBER Florida Bar #8140 s/alexander Strassman ALEXANDER STRASSMAN Florida Bar #

6 CERTIFICATION PURSUANT TO FLA. R. APP. P (a) The undersigned has conferred with Assistant Attorney General L. Charlene Matthews with the respect to this Motion, who advised that the State does not intend on filing a Response to the instant Motion, unless Ordered to do so by the Court. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was e- mailed this 16th day of May, 2017 to: L. Charlene Matthews, Esq. Counsel for Appellee Office of the Attorney General Criminal Appeals Division 444 Seabreeze Blvd., Suite 500 Daytona Beach, Florida crimappdab@myfloridalegal.com linda.matthews@myfloridalegal.com s/alexander Strassman ALEXANDER STRASSMAN 6