opinion filed: I a ll blol
An appeal from a Final Judgment the CountyCourtof Miami-badeCounty,Florida. by CarlosMiller, pro se,Appellant. KatherineFernandez Rundle,StateAttorney,and IgnacioJ.Yazquez,Jr., AssistantState Attomey,for Appellee. BeforePLATZER, SCOLA andFREEMAN,JJ. PERCURIAM. Carlos Miller, Appellantand Defendant below, appeals convictionand sentence for his ResistingArrest and Obstru#$li of a Public Sheet. Finding error in both the conviction and we sentence, reverse. following anencounter was Miller, a photojournalist, arrested between himselfandfive City of Miami policeofficers.Theofficerswereinvestigating accident a heavilytraveled an on roadway. themdoingso. Theofficersinstructed to Miller wasatternpting photograph Miller to leavethe area At and an argumentensued. one point, while being moved from the roadwaSMiller snapped a
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photograph closerange, at of with the flashengaged, theoffrcer. Miller wassubsequently arrested


andcharged with multiple criminalandcivil infractions. At the trial, Miller testified his own defense. in Duringcross-examination, Courtallowed the the State,over objection,to question Miller aboutthe contents a blog created him several by of monthsafter the incident.In theblog, Miller questioned policetacticsacross country. In some the postings, officerswerereferred as"Gestapo" "Nazis". Additionally, State permitted to or was to the questionMiller conceming articlehe wrote over a yearafterhis arrestin which he expressed an policebrutalityin Los Angeles. negative opinionsaboutthepoliceanddiscussed At closing,the Stateargued: we're all students history. Whenthe ...(I)in someway or another of put Nazis andtheir Gestapo someone's it headto theground, didn't look like this. It did not. But that'sthewayMr. Miller ashe saidin his own unvarnished opinionfeelsaboutthe police. And that's the story that he's writing about the police, and that's the story that you're goingto hearaboutthepoliceon .... werepe(missible impeachment showbias against to The Stateargues the questions that as policeoffrcers. Courtshavelong allowedwitnessbiasto be explored throughcollateralevidence. to waspermitted impeach For example, Tanziv. State,964 2d 106,115 (Fla.2007), State in the So. is in thetestimonyof a witness raisingactscommitted a separate venue.'No area moredesaving by of of 'wide latitude'thanthedefen$4g*:s ability in a criminalcase argue 'credibilityandbiases the to the witnesses who testifiedat trial.' lfilliams v. State,9l2 So. 2d 66,6E(Fla. 4th DCA 2005) (quotingGoodrichv. State, So.2d 663,665(Fla.3d DCA 2003). See alsoCarlylev. State,945 854 has adverse So.2d 540 (Fla. }ilDCA2006) (a defendant the absolute right to fully cross-examine v. So. witnesses discreditthemby showing to bias,prejudice, interest); or Graves State,937 2d 1286 (Fla.4th DCA 2006)(a criminaldefendant considerable to has latitudein crossexamination elicit Minusv. State,901 2d344(Fla.4th DCA 2005)(for the testimony showing biasof a witness); So.
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the purpose discrediting witness, SixthAmendment of a the allowsa defendant wide rangeof a cross-examination a matterof ri'ghtin regardto his motives, as interest, animus.) or However, even rightis not withoutlimits. See this Nelson State,704 2d752(Fla.5th v. So. DCA 1998)(biason partof prosecution witness validpointof inquiryin cross-examination, is but prospect biasdoes open of not question rnight doorto every that possibly develop subject; evidence of biasmay be inadmissible it unfairly prejudices misleads trier of fact). if or the Moreover, find a material we distinction between attacking witness collateral a by attackand doing so to a defendant.Expertwitnesses be replaced fact witnesses can and may be discredited without impugning the defendant. Further,juries cannotpunish witnesses thernselves their for collateral wrongs, maybeledto do sowhenthecollateral but wrongis committed thedefendant. In by sum,introduction a defendant's of collateral profoundly act increases riskthatthecollateral will the act grosslyovershadow whatever it wasintended prove. bias to The standard ofreview of a hial court'sevidentiary rulings abuse discretio Fitzpatrick is of n.. v. state. 900 so.Zd 495.514-15 The trial court'sdiscretion limited, however,by the $1a.2005). is rulesof evidence, Johnston. So.Zd 863 at278.andby theprinciples stare of decisis. Section90.402. Florida Statutes (2005)provides that all relevant evidence admissible is exceptasprovidedby law. However,relevant evidence inadmissible its probative is if valueis substantially by outweighed the danger ofunfair prejudice.Thecourtmustconduct balancing in orderto applyfhis discretion. a test Despitebareatternpts link Miller's comments testimonial to to bias,theStateplacedCarlos Miller's abstracted comments trial. Miller's comments, on admittedfor the limited purposeof impeachment, ultimatelybecame evidence ofhis guilt. "[S]ucha useof impeachment testimonyhas beenheld to be reversibleerror." Merrill v. State,228So.2d 305,307 (Fla. 3d DCA 1969)(citing Adamsv. State,l5 So.905,908(Fla.1894);Whorely State,33 849(Fla.1903); v. v. Hernandez So. state,22 So.2d 781,786(Fla. I 945)).
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The jury having found you guilty, I'm adjudicatingyou guilty. I'm imposing a $250 fine, there's Court costsandsurcharges. placing I'm you on one (year) reporting probation, a special condition anger course,a specialcondition 100 hours of community service at arate of ten hours minimum per month and all conditionsto be completed with ten months of todav.

The courtimposed additional an fine andadditional courtcosts the civil infraction. on It is constitutionally impermissible a trial court to imposea sentence for basedupon a defendant's assertion innocence of before, during,andafteriial. Ritterv. State,885 2d413(Fla. So. 200$; Holtonv. State,573 2d 284,292(Fla.I 990).TheState So. stating contends did not occur, this ". . . the courtreviewed totaltrial evidence entered sentence a merepassing the and its with rernarkon remorsein the contextof a commenton the Appellant'smisbehavior and demeanor." On the assumption we havereviewed same that transcript, rejecttheState's we the interpretation oftherecord. SeeU.S. Fire Ins.Co.v.Beltmnnn 1nc..703 Supp. 1988). NorthAm. Co., F. 681,685,n.15(N.D.I11., (FIa.2006) TheStatelooks Meltonv.State,949 2d994,1015 to So. State,70l andShellitov. So.2d 837,842(Fla.1997), support proposition a passing de minimr,s to the reference a to that or guiltyparty'slackofremorsewillnotconstituteerror. agreewithMeltonandShellito,butfind We theyhaveno application in here.As evidenced thesentencing by colloquy,thetrial court'sconcern, largepart,wasfor the 'real' heroes Arlington,for Miller's supporterc, for Miller's 'shocking' at and lack of remorse. The trial court's comments werenot so muchpassing but, references, instead, groundsfor sentencing. REVERSEDwith directionsthat Defendant tried and,if necessary, be beforea sentenced differentjudge. (PLATZER., SCOLA andFREEMAN,JJ.,CONCUR)

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