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

Transcription

1 IN THE DISTRICT COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT RECEIVED, 4/17/2017 1:11 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 FOR REVIEW OF TRIAL COURT S ORDER OF APRIL 6, 2017, DENYING MOTION FOR BOND PENDING APPEAL Appellant, DANA LOYD ( LOYD ), by and through undersigned counsel, and pursuant to Fla. R. App. P (h), files this Motion for Review of Trial Court s Order of April 6, 2017, Denying Motion for Bond Pending Appeal and, as grounds therefor, would show as follows: Appellant moves this Court to: I. MOTION 1. Reverse the Trial Court s denial of LOYD s Motion for Bond Pending Appeal; and

2 2. Set a $15, corporate surety bond 1 pending appeal; or, in the alternative 3. Remand this matter for an expeditious hearing on LOYD s Motion for Bond Pending Appeal, and to set a reasonable bond. II. PROCEDURAL HISTORY 1. On August 28, 2015, Appellant was arrested and later charged by Information with false reporting of child abuse, abandonment, or neglect, in violation of Fla. Stat (9). Appellant was released that same day on a $10,500 corporate surety bond and complied faithfully with the conditions of her pretrial release. 2. Trial commenced on March 27, On March 30, 2017, the jury returned a verdict of guilty as charged. Sentencing was scheduled for April 5, Appellant remained at liberty, without incident, while on release following her conviction. 3. Appellant s conviction under Fla. Stat (9), a third degree felony not listed in Fla. Stat , corresponds to an offense level of one (1), and a total of four (4) sentencing points. See Fla. Stat Undersigned counsel have conferred with Assistant State Attorney William Respess who advised that the State takes no position on this Motion, nor the amount of the corporate surety bond set should the Motion be granted. Moreover undersigned counsel have also conferred with Assistant Attorney General Charleen Matthews, who advised that she defers to the Assistant State Attorney s position. 2

3 Consequently, pursuant to Fla. Stat (10), because the total sentence points were fewer than 22 points[,] the Trial Court was required to sentence [Appellant]... to a nonstate prison sanction. Id. 4. On April 6, 2017, Appellant presented herself for sentencing, and was sentenced to two (2) years community control, with Appellant being imprisoned for a term of one (1) year as a condition of community control with (1) day credit for time incarcerated, followed by three (3) years probation. 5. After the sentence was imposed, Appellant immediately filed, in Open Court, her Motion for Bond Pending Appeal pursuant to Fla. R. Crim. P (a). (See Ex. 1, attached hereto). The Court conducted a hearing on the Motion, during which time Assistant State Attorney Susan Stewart conceded that, in her view, Appellant was entitled to bond pending appeal because LOYD did not have any prior felonies. (See Ex. 2, attached hereto, Excerpt of Transcript of Sentencing Proceedings, Pg. 91, Apr. 6, 2017) ( Well, I think the statute is clear, it's up to the Court. She's entitled to it because she didn't have any prior felonies. ). The Trial Court heard argument from counsel, but denied the Motion. (See id. at pg. 93). In denying Appellant bond, the Trial Court did not state in writing its reasons for the denial[,] as required under Fla. R. Crim. P (b). (See Ex. 3, attached hereto, Order Denying Bond Pending Appeal). However, the Trial Court explained on the record its reasons for denying bond. (See Ex. 2 at 3

4 pgs ). 6. As noted infra, at pg. 9, this appeal is filed in good faith and is not frivolous, as it will raise numerous fairly debatable legal issues, including, inter alia, a) restriction of Defendant s ability to raise the defense of good faith, b) the inadequacy of jury instructions and the Court s rulings with respect to same, c) improper judicial comments on the evidence in the presence of the jury, d) improper admission of evidence concerning Appellant s character, e) improper limitation of cross-examination of the State s witnesses, among other issues (pending review 2 of the trial transcript), f) insufficiency of evidence, and g) illegality of the sentence imposed. III. APPELLANT S BACKGROUND 7. Appellant had remained at liberty on a $10,500 corporate surety bond, without incident, since being released from custody on the same day of her arrest, August 28, Appellant is forty-four (44) years old and has lived in Florida for approximately thirty (30) years, approximately twenty-five (25) years of which have been in Brevard County. 2 Undersigned counsel were not retained by Appellant until after her conviction, but prior to sentencing. Undersigned counsel have engaged in discussions with Appellant s trial counsel, who advised the undersigned of the potential issues on appeal. The undersigned have already ordered the trial transcript for appeal purposes. 4

5 9. Appellant has been married to Christopher Loyd since 2004, and together they have two (2) children (ages 11 and 9). Appellant cares for and provides home schooling to her children. 10. Appellant s parents and brother reside in Brevard County, and have for a substantial period of time. 11. Appellant volunteers her time on a weekly basis at Bethlehem Baptist Church s food pantry, located in Titusville. Appellant has long been an upstanding member of the local community, where she often puts others before herself. 12. Appellant clearly has strong ties to Florida. 13. Prior to the instant matter, Appellant had never before been convicted of a felony offense. 14. Appellant is not a danger to the community as she is not currently, nor has she ever been, charged with a violent or drug related offense. Appellant has never attempted flight, or exhibited any signs of being a flight risk. As described below, there appear to be several fairly debatable issues that were presented for appellate review. Hence, this appeal is taken in good faith, and not for frivolous reasons. IV. MEMORANDUM OF LAW A. The Trial Court Failed to State in Writing Its Reasons for the Denial of Bond Pending Appeal Fla. R. App. P provides, in relevant part, that [a]ll orders denying 5

6 post-trial release shall set forth the factual basis on which the decision was made and the reasons therefore and [r]eview of an order relating to post-trial release shall be by the court on motion. Fla. R. Crim. P provides: Id. (emphasis added). (a) All persons who have been adjudicated guilty of the commission of any offense, not capital, may be released, pending review of the conviction, at the discretion of either the trial or appellate court, applying the principles enunciated in Younghans v. State, 90 So.2d 308 (Fla. 1956), provided that no person may be admitted to bail on appeal from a conviction of a felony unless the defendant establishes that the appeal is taken in good faith, on grounds fairly debatable, and not frivolous. However, in no case shall bail be granted if such person has previously been convicted of a felony, the commission of which occurred prior to the commission of the subsequent felony, and the person s civil rights have not been restored or if other felony charges are pending against the person and probable cause has been found that the person has committed the felony or felonies at the time the request for bail is made. (b) In any case in which the court has the discretion to release the defendant pending review of the conviction and, after the defendant s conviction, denies release, it shall state in writing its reasons for the denial. The rule provides that an Appellant must establish that the appeal is taken in good faith, on grounds fairly debatable, and not frivolous. Id. The requirement that the appeal be taken on grounds fairly debatable is not a heavy burden. In Childers v. State, 847 So.2d 1120 (Fla. 1st DCA 2003) (citing Baker v. State, 213 So.2d 285 (Fla. 4th DCA 1968)), the First District Court of Appeal explained the 6

7 rather lenient good faith, fairly debatable, standard: [g]ood faith does not mean there is probable cause to believe the judgment will be reversed, but simply that the appeal is not vexatious and the defendant has assigned errors that are open to debate and about which reasonable questions exist. Id. Here, while the Trial Court did issue a written Order denying Appellant s motion, it did not state in writing its reasons for the denial. Compare Fla. R. Crim. P (b); (with Ex. 3). In cases, such as this one, where the requirements of Fla. R. Crim. P (b) are not met, an appropriate remedy on appeal is to remand th[e] cause to the trial court for the purpose of rendering a written order in conformity with Rule 3.691(b), as expeditiously as possible, and when rendered, the order should be immediately furnished to [the appellate] court, as a supplement to the record. See Lynn v. State, 696 So.2d 542, 543 (Fla. 5th DCA 1997). As such, this Court may remand this cause in the manner set forth in Lynn, see id., or, in the alternative, enter an order releasing Appellant on bond, 3 (see infra at pgs. 8 11), because the Trial Court orally pronounced its reasons on the record. (See Ex. 3 LOYD is mindful that, ordinarily, it is the Trial Court, and not the Appellate Court, that makes the determination as to what constitutes a reasonable bond. However, such determinations by an Appellate Court are not unprecedented. See Wells v. Wainwright, 260 So. 2d 196, (Fla. 1972) ( The request to release petitioner on bail pending appeal is hereby granted and it is ordered that the appeal herein to the Third District Court of Appeal... does operate as a supersedeas of the final judgment in said cause upon the petitioner giving an appearance bond in the sum of Seventy Five Thousand Dollars ($75,000.00). The sufficiency of said bond is to be approved by the Clerk of the Criminal Court of Record in and for Dade County, Florida[.] ). 7

8 2 at pgs ); Wells, 260 So.2d at 197 ( The trial judge's ruling was not reduced to writing, however, the foregoing events are contained in the transcript of the hearing. ). B. The Trial Court Applied an Improper Standard in Denying Appellant s Motion for Bond Pending Appeal The Trial Court s denial of bond pending appeal cannot rest upon its assessment that the appeal has got little or no chance of success[.] Boles v. State, 388 So. 2d 581, 582 (Fla. 5th DCA 1980). Fla. R. App. P and Fla. R. Crim. P (b) are indeed consistent with the premise, recognized by the United States Supreme Court, that the actual operation of the appellate procedure should not be allowed, through denial of bail, to render the right to appeal nugatory. Patterson v. United States, 75 S.Ct. 256, 99 L.Ed (1954) (Frankfurter, J., as supervising Circuit Justice). However, that is precisely what happened in the proceedings below. The Trial Court denied Appellant bond pending appeal not based on the debateability of the issues on appeal, but instead based on the strength of the evidence purportedly supporting Appellant s conviction. (See Ex. 2 at pg. 93) ( Ms. Loyd admitted the conduct... and that it was absolutely a lock and load It was a fairly straightforward case, sir. ). While the Court correctly used the words fairly debatable in denying Appellant s Motion, in reality, it denied Appellant bond pending appeal simply because the Trial Court was satisfied with the level of 8

9 inculpatory evidence admitted at trial. (See Ex. 2 at pg. 94) ( [a]nd I've just said we have a confession. We have direct witnesses. I don't see what's hugely debatable. ). Thus, the Court improperly held Appellant to a higher and improper standard than that which is required as a matter of law under Fla. R. Crim. P (a). See Childers, 847 So.2d 1120 ( [g]ood faith does not mean there is probable cause to believe the judgment will be reversed, but simply that the appeal is not vexatious and the defendant has assigned errors that are open to debate and about which reasonable questions exist ) (emphasis added). Appellant maintains that the seven (7) potential issues to be raised in good faith on appeal, (see supra at pg. 4), are not frivolous, and are fairly debatable. Boles, 388 So.2d at 582 ( Good faith does not mean there is probable cause to believe the judgment will be reversed, but simply that the appeal is not vexatious and the defendant has assigned errors that are open to debate and about which reasonable questions exist[.] ) (internal citations and quotations omitted) (emphasis added). Moreover, as undersigned counsel was not trial counsel, it is clear, based upon discussions with trial counsel and Appellant, there are likely additional substantive, meritorious issues which need to be reviewed and possibly presented to this Court. Undersigned believes that, after reviewing the transcript of the trial (which has been ordered but is not yet prepared through no fault of Appellant), 9

10 additional appellate issues may well be identified for and raised on appeal. Although the right to bond pending appeal is discretionary with the court, this discretion is not unlimited and must be exercised within the guidelines established by case law and adopted by rule. Wells v. Wainwright, 260 So.2d 196, 197 (Fla. 1972) (citing Younghans v. State, 90 So.2d 308 (Fla. 1956) (providing that application for bail pending appeal will be tested by the principles of Younghans)). The Younghans principles include: (1) the habits of the individual as to respect for the law, (2) his local attachments to the community, by way of family ties, business, or investments, (3) the severity of the punishment imposed for the offense, and any other circumstances relevant to the question of whether the person would be tempted to remove himself from the jurisdiction of the court. Id. The Florida Supreme Court in Wells, applying the Younghans principles, granted Wells motion for bail pending appeal, though she had been convicted of perjury in a murder proceeding and sentenced to life imprisonment, finding that the petitioner had never been arrested, had been at liberty on a $25, bond and appeared at all required times, was 48 years of age, owned her own home, resided in the State of Florida for many years, and was the mother of an eleven year old daughter who was in her custody, care and control until petitioner's incarceration. Wells, 260 So.2d at 197. Appellant s facts closely mirror the facts above. Appellant, 44 years old with 10

11 no prior criminal convictions, had remained at liberty, without incident, since being released from custody on a $10,500 bond, has lived in Florida for approximately thirty (30) years and has two (2) children (ages 11 and 9) for whom she cares and provides home schooling to. Appellant has strong ties to the local community and does not present any flight risk, clearly satisfying the Younghans factors, which the Trial Court below failed to apply. Having satisfied the requirements of Fla. R. Crim. P (a), and the Trial Court having failed to meet the specific requirements of Fla. R. Crim. P (b), but having expressed its reasons in the transcript attached hereto, (Ex. 2), Appellant respectfully requests this Court grant this Motion, conclude that the [appellant] passes review and is entitled to bond on appeal, and, consistent with Wells, enter an Order granting same and releasing LOYD on bond. See Wells, 260 So.2d at 197 ( The trial judge's ruling was not reduced to writing, however, the foregoing events are contained in the transcript of the hearing. ). Alternatively, the Appellant requests that this Court enter an Order remand[ing] this cause to the trial court for the purpose of rendering a written order in conformity with Rule 3.691(b), as expeditiously as possible, and when rendered, the order should be immediately furnished to this court, as a supplement to the record for further review by the Court. Lynn, 696 So.2d at 543 (Fla. 5th DCA 1997). 11

12 WHEREFORE, Appellant, DANA LOYD, prays this Honorable Court grant her Motion for Review of Trial Court s Order of April 6, 2017, Denying Motion for Bond Pending Appeal, and grant such other and further relief as is just and proper. 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 #

13 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was e- mailed this 17 th day of April, 2017 to: Office of the Attorney General Criminal Appeals Division 444 Seabreeze Blvd., Suite 500 Daytona Beach, Florida crimappdab@myfloridalegal.com s/brian H. Bieber BRIAN H. BIEBER 13

14 Exhibit 1

15 IN THE CIRCUIT COURT OF THE 18TH JUDICIAL CIRCUIT IN AND FOR BREVARD COUNTY, FLORIDA CASE NO CF AXXX-XX STATE OF FLORIDA, vs. DANA LOYD, Plaintiff, Defendant. / DEFENDANT S MOTION FOR BOND PENDING APPEAL Defendant, DANA LOYD ( LOYD ), by and through undersigned counsel, and pursuant to Fla. R. Crim. P (a), files this Motion for Bond Pending Appeal and, as grounds therefor, states as follows: I. PROCEDURAL AND FACTUAL BACKGROUND 1. On August 28, 2015, Defendant was arrested and later charged by Information with false reporting of child abuse, abandonment, or neglect, in violation of Fla. Stat (9) (Count 1). 2. Trial commenced on March 27, 2017, and on March 30, 2017, the jury returned a verdict of guilty as to Count 1. Sentencing is scheduled for April 5, Defendant had remained faithfully at liberty, without incident, since being released from custody on the same day of her arrest, August 28, Defendant is forty-four (44) years old and has lived in Florida for approximately thirty (30) years, approximately twenty-five (25) years of which have been in Brevard County. 5. Defendant has been married to Christopher Loyd since 2004, and together they

16 have two (2) children (ages 11 and 9). Defendant cares for and provides home schooling to her children. 6. Defendants parents and brother all reside in Brevard County, and have for a substantial period of time. 7. Defendant volunteers her time on a weekly basis at Bethlehem Baptist Church s food pantry, located in Titusville. Defendant has long been an upstanding member of the local community, where she often puts others before herself. 8. Defendant clearly has strong ties to Florida. 9. Prior to the instant matter, Defendant has never before been convicted of a felony offense. 10. Defendant has a total of four (4) sentencing points which, pursuant to Fla. Stat (10), warrants a nonstate prison sanction[.] Id. 11. Defendant is not a danger to the community as she is not currently, nor has she ever been, charged with a violent or drug related offense. Defendant has never attempted flight, or exhibited any signs of being a flight risk. Defendant has retained undersigned counsel and intends to vigorously pursue her appellate rights. As described below, there appear to be several fairly debatable issues that are ripe for appellate review. Hence, the appeal will be taken in good faith, and not for frivolous reasons. II. MEMORANDUM OF LAW Fla. R. Crim. P provides, in relevant part: (a) All persons who have been adjudicated guilty of the commission of any offense, not capital, may be released, pending review of the conviction, at the discretion of either the trial or appellate court, applying the principles enunciated in Younghans v. State, 90 So.2d 308 (Fla. 1956), provided that no person may be admitted to bail on appeal from a conviction of a 2

17 Id. (emphasis added). felony unless the defendant establishes that the appeal is taken in good faith, on grounds fairly debatable, and not frivolous. However, in no case shall bail be granted if such person has previously been convicted of a felony, the commission of which occurred prior to the commission of the subsequent felony, and the person s civil rights have not been restored or if other felony charges are pending against the person and probable cause has been found that the person has committed the felony or felonies at the time the request for bail is made. (b) In any case in which the court has the discretion to release the defendant pending review of the conviction and, after the defendant s conviction, denies release, it shall state in writing its reasons for the denial. The rule provides that a defendant must establish that the appeal is taken in good faith, on grounds fairly debatable, and not frivolous. Id. The presumption of correctness that follows from a verdict and resulting judgment is not an appropriate factor upon which to base the denial of a bond in a specific case. Coolley v. State, 720 So. 2d 598, 599 (Fla. 2d DCA 1998). Though neither a Motion for New Trial, pursuant to Fla. R. Crim. P , nor Motion for Judgment of Acquittal, pursuant to Fla. R. Crim. P , were filed sub judice, upon undersigned counsel s associate s brief telephone conference with Defendant s trial counsel, it appears that numerous appellate issues are present, which Defendant will in good faith pursue on her direct appeal. Cf Childers v. State, 847 So.2d 1120, 1121 (Fla. 1st DCA 2003) ( Post-trial release is not dependent on whether the appellate issues have been raised before the trial court and rejected. The standard is whether the issues raised are open to debate and involve reasonable questions. ) (emphasis added). It appears that the issues here include, but are not limited to: a) restriction of ability to put forth a defense of good faith, b) inadequacy of jury instructions and the Court s rulings with respect to same, c) sufficiency of evidence, d) improper burden shifting, e) improper use of character evidence, and f) improper limitation of cross- 3

18 examination of the State s witnesses, among other issues (pending review of the trial transcript). Defendant maintains that these 6 issues are being raised in good faith, are not frivolous, and are fairly debatable. Boles v. State, 388 So. 2d 581, 582 (Fla. 5th DCA 1980) ( Good faith does not mean there is probable cause to believe the judgment will be reversed, but simply that the appeal is not vexatious and the defendant has assigned errors that are open to debate and about which reasonable questions exist[.] ) (internal citations and quotations omitted). Moreover, as undersigned counsel was not trial counsel, it is clear, based upon discussions with trial counsel and Defendant, there are likely additional substantive, meritorious issues to be presented to the Fifth District Court of Appeal. Undersigned believes that, after reviewing the transcript of the trial, additional appellate issues will be identified for and raised on appeal. In Evans v. State, 863 So.2d 384, 385 (Fla. 1st DCA 2003), the First District Court of Appeal held that the trial Court erred when it denied bond pending appeal to appellant. Evans had pled guilty with a reservation of rights to appeal the denial of his dispositive motion to suppress. Id. The trial court held that by virtue of his plea appellant had now been adjudicated guilty of a felony, and found that this conviction increases [appellant s] likelihood of flight, as he is now facing sentence[,] and that the appellant s employment put him in contact with children and he would therefore be a risk to same. Id. The First DCA disagreed, and conclude[d] that particularly when viewed in light of the other factors set forth in Younghans... that weigh in appellant s favor on the question, including his ties to the community, the absence of any prior record, and his conduct while on pretrial release, the two factors cited by the trial court are an insufficient basis on which to justify the decision to deny him post-trial release. Younghans recognizes that a trial court may properly exercise its discretion against the 4

19 allowance of post-trial bail if there are circumstances to indicate that the accused will flee and thus evade punishment if his conviction is affirmed. Id. (internal citations omitted). There are no such circumstances present here. In Wells v. Wainwright, 260 So.2d. 196, 197 (Fla. 1972) (where the defendant was convicted of perjury and sentenced to life imprisonment), the Florida Supreme Court stated Younghans essentially directs the court to consider (1) whether the appeal is taken for delay or in good faith on grounds not frivolous but fairly debatable; (2) the habits of the individual regarding respect for the law; (3) local attachments to the community by way of family ties, business or investment; (4) the severity of the sentence imposed, and circumstances relevant to the question of whether the defendant would remove himself from the jurisdiction of the court. Notwithstanding the pending imposition of a sentence of life imprisonment, the Court applied the Younghans test and decided that a bond pending appeal was appropriate because Wells, similar to the Defendant here, was 48 years of age, owns her own home and has lived in the State of Florida many years. Additionally, she is the mother of an eleven year old daughter who was in her custody, care and control until petitioner's incarceration herein. Id. (emphasis added). Unlike Wells, who was sentenced to a term of life imprisonment, and as set forth supra, Defendant does not even score a term of State imprisonment, pursuant to Fla. Stat (10). As stated above, Defendant s appeal is being taken in good faith and not for the purpose of delay. The issues that will be raised are fairly debatable. The Defendant has strong ties to this community, as she resides in Brevard County, and has numerous relatives living in Florida, including her brother, parents, husband, and two (2) children. Moreover, Defendant has been on pretrial release without incident for over eighteen (18) months. 5

20 Defendant has never exhibited signs of flight, missed a Court hearing, or an appointment with pretrial services. Defendant s prior criminal history is limited to one previous case which resulted in a dismissal after successful completion of pretrial diversion. Cf. Jones v. State, 662 So.2d 383, 384 (Fla. 3d DCA 1995) ( Florida Rule of Criminal Procedure 3.691(a) precludes bail pending appeal, inter alia, if such person [the defendant] has previously been convicted of a felony, the commission of which occurred prior to the commission of the subsequent felony, and the person's civil rights have not been restored. ) (brackets in original). It is undisputed that Defendant has never committed a violent or drug related offense. Defendant poses no danger to the community. Defendant is an appropriate candidate for an appeal bond. Defendant has satisfied the Younghans test. Having satisfied the requirements of Fla. R. Crim. P and Younghans, Defendant respectfully requests this Court Order Defendant released on a reasonable bond pending her appeal. 6

21 WHEREFORE, Defendant, DANA LOYD, prays this Honorable Court grant her Motion for Bond Pending Appeal, set a reasonable bond, and grant such other and further relief as is just and proper. Respectfully submitted, GRAY ROBINSON, P.A. Attorneys for Defendant 333 S.E. 2 nd Avenue Suite 3200 Miami, Florida Telephone: (305) Facsimile: (305) brian.bieber@gray-robinson.com By: s/brian H. Bieber BRIAN H. BIEBER Florida Bar #8140 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was filed in Open Court this 6th day of April, 2017, and a courtesy copy was hand-delivered in Open Court to: Sean M. Sendra, Assistant State Attorney State Attorney s Office 18th Judicial Circuit 400 South St, Ste. D Titusville, Florida ssendra@sa18.state.fl.us stac@sa18.state.fl.us s/brian H. Bieber BRIAN H. BIEBER 7

22 Exhibit 2

23 STATE V LOYD; 04/06/ IN THE COUNTY COURT OF THE 18TH JUDICIAL CIRCUIT IN AND FOR BREVARD COUNTY, FLORIDA CASE NO CF AXXX-XX STATE OF FLORIDA, PLAINTIFF, V. DANA LYNN LOYD, DEFENDANT. / TRANSCRIPT OF SENTENCING PROCEEDINGS DATE: April 6, 2017 PLACE: Vassar B. Carlton Historic Courthouse 506 S. Palm Avenue Titusville, Florida BEFORE: The Honorable Robin Lemonidis, Circuit Judge These proceedings were digitally recorded and the following was transcribed by: Shirley P. King, RPR, CLVS, FPR Court Reporter King Reporting & Video Conference Center 14 Suntree Place, #101 Melbourne, FL (321) King Reporting & Video Conference Center

24 STATE V LOYD; 04/06/ APPEARANCES 3 4 FOR THE STATE 5 SUSAN STEWART, ESQUIRE 6 and 7 SEAN SENDRA, ESQUIRE 8 Assistant State Attorney 2725 Judge Fran Jamieson Way 9 Building D Viera, Florida sstewart@sa18.org 11 ssendra@sa18.org FOR THE DEFENDANT 14 JESSICA BURGESS, ESQUIRE 15 Law Office of Jessica Burgess P.A 14 Marina Isles Blvd 16 Indian Harbour Beach, FL Burgess.jessica87@gmail.com 18 and 19 BRIAN BIEBER, ESQUIRE 20 GrayRobinson, P.A. 333 SE 2nd Ave Ste Miami, FL Brian.bieber@gray-robinson.com King Reporting & Video Conference Center

25 STATE V LOYD; 04/06/ INDEX OF PROCEEDINGS 3 PAGE 4 SENTENCING PROCEEDINGS 6 5 ISSUE: Renewed Motion for Judgment of Acquittal 23 6 COURT'S RULING 25 7 CHILD'S STATEMENT READ 25 8 STATE'S WITNESSES 9 TIMOTHY McSHOO 10 Examination by the Court 27 Direct Examination by Ms. Burgess DEFENSE'S WITNESSES 13 LARRY CARTER 14 Direct Examination by Mr. Bieber DEAN PATERAKIS 16 Direct Examination by Mr. Bieber GLORIA BARTLEY 18 Direct Examination by Mr. Bieber CHRIS LOYD Direct Examination by Mr. Bieber ISSUE: Defense Renewed Motion for Continuance COURT'S RULING King Reporting & Video Conference Center

26 STATE V LOYD; 04/06/ INDEX OF PROCEEDINGS (Continued) 3 4 SENTENCE OF THE COURT 77 5 ISSUE: Defense Motion for Bail Pending Appeal 90 6 COURT'S RULING 93 7 CERTIFICATE OF TRANSCRIBER King Reporting & Video Conference Center

27 STATE V LOYD; 04/06/ schedule. So that's the Catch If you get released on a day that's not 3 a business day, then you must do nothing but 4 stay in your home until you can go to community 5 control and get a schedule established, because 6 they will come and check on you and if you're 7 not there, you have already violated. And then 8 you are right back here and that will not be 9 good. 10 THE CLERK: And, Judge, was there a cost 11 of investigation you're imposing? 12 THE COURT: I did, it was $983 to the 13 Sheriff's Department. I'm sorry, Madam Clerk, 14 I thought I did. I thought I mentioned that. 15 Yes, sir? 16 ISSUE: MOTION FOR BOND PENDING APPEAL 17 MR. BIEBER: Your Honor, may I pass up a 18 motion for a bond pending appeal? 19 THE COURT: Certainly. 20 COURT DEPUTY: (Tenders documents.) 21 MR. BIEBER: And I have a copy for the 22 State (tenders documents). 23 MS. STEWART: Thank you. 24 THE COURT: (Reviewing documents.) 25 All right. Mr. Bieber, am I crazy or do King Reporting & Video Conference Center

28 STATE V LOYD; 04/06/ you have a typo here? 2 MR. BIEBER: We may have a typo. 3 THE COURT: Oh, nope; nope. Sorry. 4 MR. BIEBER: I was about to say -- 5 THE COURT: No, I'm -- 6 MR. BIEBER: You're not crazy, Judge. 7 THE COURT: I'm dyslexic. 8 MR. BIEBER: Well, that's all right. 9 But I was about to accept full responsibility 10 for a typo and blame it on my law partner, Mr. 11 Kirschenbaum because he helped prepare this. 12 THE COURT: No, I'm dyslexic. I'm 13 dyslexic, no worries. My recollection of the 14 supersedeas bond is All right. Mr. Sendra, Ms. Stewart, 16 have you had the opportunity to review the 17 motion for the supersedeas bond? 18 MS. STEWART: Yes. 19 MR. SENDRA: Yes. 20 THE COURT: And what are your thoughts? 21 MS. STEWART: Well, I think the statute 22 is clear, it's up to the Court. She's entitled 23 to it because she didn't have any prior 24 felonies. The only prior felony she's had was 25 in 1998, she had a grand theft and she went to King Reporting & Video Conference Center

29 STATE V LOYD; 04/06/ pretrial diversion for that, or to pretrial 2 intervention. 3 MR. BIEBER: That was a business check 4 issue, a misunderstanding. 5 THE COURT: Well, all right, what I'm 6 reading here in the rule, is that 3.691, which 7 is the one that you -- it says Subsection (a) 8 -- it says "When authorized" which is the 9 section you cite in your motion, Mr. Bieber, 10 is: 11 All persons who have been adjudicated 12 guilty of the commission of any offense, not 13 capital, may be released, pending review of the 14 conviction, at the discretion of either the 15 trial or appellate court, applying the 16 principles enunciated in Younghans v. State, 17 Florida 1956, provided that no person may be 18 admitted to bail on appeal from a conviction of 19 a felony unless the Defendant establishes that 20 the appeal is taken in good faith, on grounds 21 fairly debatable. 22 And that is my understanding of the 23 standard, that the grounds for the appeal must 24 be fairly debatable. 25 And Mr. Bieber, with all due respect, I King Reporting & Video Conference Center

30 STATE V LOYD; 04/06/ cannot imagine grounds in this situation -- I 2 don't recall any close calls that would cause 3 this to be a fairly debatable issue. 4 Ms. Loyd admitted the conduct in an 5 interview with a deputy. It was proven at 6 trial that the only Theresa Smith, which is who 7 she claimed to be, was a teacher now in the 8 Osceola school district. 9 And that it was absolutely a lock and 10 load un -- It was a fairly straightforward 11 case, sir. 12 MR. BIEBER: Your Honor COURT'S RULING 14 THE COURT: And so, I do not find that 15 the grounds are fairly debatable. And so, I 16 respectfully deny your motion. 17 MR. BIEBER: Okay. Your Honor, I would 18 just direct your attention to the bottom of 19 page (3) where we recite the Childers case, So.2d 1120 and 1121 which says, quote: "Post 21 trial release is not dependent upon whether the 22 appellate issues have been raised before the 23 Court and rejected. The standard is whether 24 the issues raised are open to debate and 25 involve reasonable questions. King Reporting & Video Conference Center

31 STATE V LOYD; 04/06/ THE COURT: Right. 2 MR. BIEBER: Open to debate is -- 3 THE COURT: I think that sounds like 4 grounds for the appeal are fairly debatable. 5 And I've just said we have a confession. We 6 have direct witnesses. I don't see what's 7 hugely debatable. 8 But if the appellate court would like to 9 educate me, I'm all ears. I enjoy education. 10 MR. BIEBER: Okay. We set forth those 11 debatable issues at the bottom of page (3) 12 Judge, if I could just impose on you to review 13 and reconsider. 14 THE COURT: (Reviewing document.) 15 I respectfully disagree with those 16 reasons, sir. So we will let the appellate 17 court review the entire thing. And as I said, 18 I am always willing to be enlightened. 19 And I am sure that you will do a fine 20 job of letting them know why I should be, and 21 they will decide whether that is indeed the 22 case. 23 So, I appreciate your -- I do appreciate 24 your advocacy here and; however, my sentence 25 will stand as it is. Thank you. King Reporting & Video Conference Center

32 STATE V LOYD; 04/06/ Thank you, folks. I think, if that 2 takes care of everything, we will be in recess. 3 (Whereupon, the proceedings were 4 concluded.) King Reporting & Video Conference Center

33 STATE V LOYD; 04/06/ CERTIFICATE OF REPORTER 4 5 STATE OF FLORIDA ] ] 6 COUNTY OF BREVARD ] 7 8 I, SHIRLEY P. KING, RPR, CLVS, FPR, do hereby certify that I was authorized to and did 9 transcribe the foregoing proceeding, and that the transcript page 1 through page 96 is a true 10 and correct transcript from the digital record of the proceeding to the best of my ability. 11 Done and dated April 12, 2017 at Melbourne, Brevard County, Florida SHIRLEY P. KING, RPR, CLVS, FPR Registered Professional Reporter King Reporting & Video Conference Center

34 Exhibit 3

35