IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT

IN AND FOR PALM BEACH COUNTY, FLORIDA

STATE OF FLORIDA, Case No.: 2009CF009771AMB

Division: W
vs.

DALIA A. DIPPOLITO,

Defendant.
/

ORDER DENYING DEFENDANTS

MOTION FOR BOND PENDING APPEAL

This matter came before the Court on Defendant Dalia A. Dippolitos Motion for

Bond Pending Appeal (DE #1513), filed July 26, 2017. A hearing was conducted on the

Defendants Motion on August 10, 2017. The Court has heard and reviewed the evidence

presented, considered the submissions of the parties and has heard the argument of

counsel. The Court has also reviewed the court file and the record in this matter. Upon

consideration, the Court makes the legal and factual findings that follow.

Background

The Defendant was charged by Information with a single count of solicitation to

commit first degree murder. The Defendant has been tried on this charge three times.

The first trial commenced in April of 2011. A verdict was returned on May 13, 2011

finding the Defendant guilty as charged. On June 16, 2011, the Defendant was sentenced

to 20 years in the Department of Corrections (DOC).1 On September 15, 2014, the

Defendants conviction was reversed by the Fourth District Court of Appeal and the case

was remanded for a new trial.

1
Sentence was imposed by this Courts predecessor, the Honorable Jeffery Colbath.
 The Defendants second trial commenced on December 1, 2016. The jury was

unable to reach a unanimous verdict and on December 14, 2016 the Court declared a

mistrial. The jury was polled anonymously and was evenly split with 3 jurors voting

guilty and 3 jurors voting not guilty.

The Defendants third trial commenced on June 2, 2017. A verdict was returned

on June 16, 2017. The Defendant was once again found guilty of solicitation to commit

first degree murder. On July 21, 2017, the Court sentenced the Defendant to 16 years in

the DOC.

For most of the eight years since her arrest, the Defendant has been on in-house

arrest. She was remanded briefly after her first conviction and was also remanded after

the jury returned a guilty verdict on June 16, 2017. There was a violation of the

conditions of her in-house arrest in December of 2015 when the Defendant traveled to

Miami to conduct an interview with the ABC news program 20/20. The State moved

to revoke her bond at that time. The Court found a violation of the conditions of in-

house arrest; however, the Defendant was allowed to remain on in-house arrest pending

trial.

Analysis

The Defendant again seeks to be released on in-house arrest pending appeal of her

conviction. Post-trial release on bond is governed by Fla. R. Crim. P. 3.691 and

903.132, Fla. Stat. (2017). Post-trial release is not a matter of right, but a matter of

discretion. Baptiste v. State, 134 So. 3d 1025, 1026 (Fla. 4th DCA 2012); State ex rel.

Ard v. Shelby, 97 So.2d 631, 633 (Fla. 1st DCA 1957). Denial of a request for post-trial

release pending appeal requires written finding and must not be arbitrary or capricious.

2
Baptiste, id. at 1026.2 Exercise of the Courts discretion requires consideration of the

factors set forth in Younghans v. State, 90 So. 2d 308 (Fla. 1956).

To qualify for post-trial release, the Defendant must first establish that the appeal

is taken in good faith, on grounds not frivolous, but fairly debatable. Younghans, id. at

310. If the Defendant establishes that the appeal is taken in good faith, the Court must

consider: 1) the habits of the individual as to respect for the law, (2) local attachments to

the community, by way of family ties, business, or investments, (3) the severity of the

punishment imposed for the offense, and (4) any other circumstances relevant to the

question of whether the person would be tempted to remove himself [or herself] from the

jurisdiction of the court. Id. at 310.

Good Faith Appeal

The Defendant has assigned as error numerous rulings of the Court during the

course of the trial. During the course of the litigation it became abundantly clear that a

significant aspect of the defense strategy in this case was to create error for appellate

purposes. Whether the defense was successful in this strategy will obviously await

appellate review. The defense, essentially, objected to everything. During the States

case-in-chief there were more than 100 bench conferences.3 Some of these objections

had merit, some did not, and some candidly - bordered on the frivolous. To assess

compliance with Younghans, the Court will address the assignments of error set forth in

the Defendants Motion.

2
Stated another way, a trial courts denial of a motion for post-trial release is reviewed
for an abuse of discretion and will not be overturned unless the trial courts denial is
arbitrary and capricious. Baptiste, id. at 1026.
3
In 10 years the Court has never presided over a case with the number of bench
conferences conducted in this case.
3
 Inflammatory Evidence Prior Attempt to Poison Michael Dippolito

The Defendant asserts that it was error to allow the State to introduce evidence

that the Defendant had previously attempted to poison her husband. This evidence was

never admitted as substantive evidence, rather the Court allowed this evidence to

impeach the testimony of Mohamed Shihadeh who was called as a defense witness. The

Court does not believe that the admission of this evidence was error.

The Defendant first states that the admission of the poisoning evidence was

deemed to be reversible error by the Fourth District Court of Appeal in Dippolito v. State,

143 So. 3d 1080 (Fla. 4th DCA 2104). This is a misstatement of the holding in

Dippolito. The Fourth District never ruled on the admissibility of the poisoning evidence

in the first appeal.

The Defendants first conviction was reversed because the trial court did not

conduct individual voir dire of potential jurors. The court noted that one juror had heard

of the poisoning allegations and shared his knowledge of these allegations in the presence

of all of the potential jurors. Pretrial the trial court had excluded the poisoning evidence.

Since the jury pool had been exposed to allegations which the trial court had deemed

inadmissible, the court concluded the panel had been tainted by the failure to conduct

individual voir dire on the issue of publicity and pretrial knowledge of the case. On this

basis, the court reversed.

The Defendant misconstrues the courts discussion of harmless error and boldly

asserts that the appellate court held that the introduction of the poisoning evidence was

4
reversible error. The court made no such finding. The court simply stated that: We note

that, if this type of evidence had been improperly introduced at trial, it would have been

presumed harmful. Dippolito, id at 1086 [emphasis added]. The court did not analyze

the admissibility of the evidence. Here the Court believes that the evidence in question

was properly admitted for a limited purpose based on the evidence introduced by the

Defendant herself.

The Defendant is correct that the State initially agreed to exclude any evidence

that the Defendant tried to poison her husband. The Defendant filed a motion in limine to

exclude the so-called poisoning evidence. The State did not oppose this motion and the

motion was granted. Beyond the agreement by the State, the Defendant insisted on a

ruling from the Court and the Court stated that the evidence was excludable based on

90.403. The Court also advised the parties that a ruling on any motion in limine could

change during the course of the trial should circumstances develop which caused the

Court to reassess the use of the once excluded evidence.

During the States case-in-chief, there was never an attempt to introduce the

poisoning evidence. After the State rested, the Defendant put on several witnesses

including a police practices witness who testified to the deficiencies in the Boynton

Beach Police Departments investigation. Through this testimony, the State did not seek

in any way to introduce or mention the poisoning evidence.

The evidence of a prior attempt to poison the Defendants husband did not come

up until the Defendant called as a witness Mohamed Shihadeh. Prior to Mr. Shidadeh

taking the stand, the State notified the Court that it believed the poisoning evidence was

admissible in the cross examination of Mr. Shidadeh. The State contended that the door

5
to this testimony had been opened by the defense case because the Defendant was

pursuing a defense that the alleged crime was manufactured for the television show

COPS. The State also contended that the poisoning evidence could be used to

impeach Mr. Shidadeh.

The Court expressly rejected the States assertion that the door was opened by the

defense theory of the case.4 However, the Court advised the parties that the poisoning

evidence might be admissible for impeachment purposes and only for impeachment

purposes - depending on the testimony offered by Mr. Shidadeh.

The Court advised the parties that the poisoning evidence could be used to

impeach Mr. Shidadeh if he took the stand and testified that: 1) he was only reporting to

the police an incident of domestic violence not a desire by the Defendant to kill her

husband; or 2) he didnt believe the Defendant really intended to kill her husband. 5

After being advised of the possible use of the poisoning testimony for impeachment, the

Defendant called as a defense witness Mr. Shidadeh.

On the stand, the Defendant continuously elicited testimony from Mr. Shidadeh

that when he contacted the Boynton Beach Police Department he was simply trying to

report domestic violence by the Defendants husband and that he did not believe the

Defendant was serious about killing her husband. On cross examination, the State

4
Candidly, the poisoning evidence likely could have been admitted as substantive
evidence. Given the defense theory that the police manufactured the crime for COPS,
and in a case where the Defendants intent to kill her husband was hotly contested,
evidence of a prior attempt to kill the Defendants husband would be relevant and
admissible. See, Dennis v. State, 817 So. 2d 741 (Fla. 2002); Nicholson v. State, 10 So.
3d 142 (Fla. 4th DCA 2009).
5
The Defendant, essentially, asked for an advisory opinion by the Court before calling
Mr. Shidadeh as a witness.
6
asserted that it had the right to impeach Mr. Shidadeh with Mr. Shidadehs own sworn

statement to the police given at the time of the incident. The Court agreed.

To impeach Mr. Shidadehs assertion eight years later that he was simply

reporting domestic violence and that he did not believe the Defendant intended to kill her

husband, the State was permitted to ask Mr. Shidaheh whether in a sworn statement to the

police at the time of the incident he told the police that the Defendant had already tried to

kill her husband by poisoning his tea. This testimony was clearly admissible as

impeachment.

In urging error relating to this impeachment evidence, the Defendant continuously

demonstrates a misunderstanding of motions in limine and the application of 90.403.

Motions in limine limit the introduction of evidence in the States case-in-chief. The

granting of a motion in limine does not forever bar - under any circumstances relevant

evidence. Evidence which is deemed inadmissible for one purpose at one time may be

admissible for another purpose at another time.

In this case, the evidence of Mr. Shidahehs statement to the police about a prior

poisoning attempt was not admitted in the States case. However, it became admissible

for impeachment when the Defendant knowingly placed Mr. Shidaheh on the stand and

continuously elicited testimony from him that was inconsistent with his original sworn

statement to the police. Under such circumstances, the granting of a previous motion in

limine does not preclude the Court from receding from its prior ruling. Trials are fluid,

circumstances change and rulings can change based on a change in circumstances. Here,

the Defendant created the change in circumstances.

7
 The Defendant also misapplies 90.403 to urge error. Section 90.403 employs a

balancing test. The test is whether the probative value of the proffered evidence is

outweighed by the risk of unfair prejudice. The Court agrees that impeachment evidence,

like any other evidence, is subject to 90.403 analysis. However, what the Defendant

fails to recognize is that balancing under 90.403 is not static. The balance between

probative value and risk of unfair prejudice can shift depending on the evidence elicited

at trial and the circumstances. This is precisely what happened in this case.

Prior to Mr. Shidadeh taking the stand, the probative value of any evidence

relating to a prior attempt to poison the Defendants husband would be outweighed by the

risk of unfair prejudice. However, once Mr. Shidadeh repeatedly testified that he was

simply reporting domestic violence not a possible murder, and that he never believed the

Defendant intended to kill her husband, the balance shifted. The Court considered

90.403 and concluded that - given Mr. Shidadehs testimony - the probative value of the

prior attempt to poison the Defendants husband was no longer outweighed by the risk of

unfair prejudice.

It is important to remember that Mr. Shidadeh was called as a defense witness.

To adopt the position asserted by the Defendant would sanction a form of evidentiary

gottcha. The Defendant was fully aware of the statements Mr. Shidadeh had given to

the police during the investigation. With this knowledge, the Defendant consciously

chose to place Mr. Shidadeh on the stand to give testimony which the Defendant knew

was inconsistent with his prior sworn statements to the police. The Defendant now seeks

to hide those inconsistent statements from the jury claiming that the statements are

unfairly prejudicial. Under such circumstances, the Defendant cannot claim that it is

8
unfairly prejudicial to allow the State to impeach a defense witness with his sworn

statement to law enforcement.

Sleeping Juror

The Defendant assigns as error the Courts refusal to remove Ms. Castaneda as a

juror based on an allegation that she was sleeping during the trial. The refusal to remove

Ms. Castaneda was the subject of a motion for juror interview and motion for new trial.

Whether to remove a juror when faced with allegations that the juror was sleeping

is a matter within the sound discretion of the trial court. Ortiz v. State, 835 So.2d 1250

(Fla. 4th DCA 2003); Burgal v. State, 740 So. 2d 82 (Fla. 3rd DCA 1999). In Bullis v.

State, 734 So. 2d 463 (Fla. 5th DCA 1999) the Court observed:

[T]he decision of whether to replace or to retain a sleeping juror rests in the sound
discretion of the trial court. See, e.g., Ivey v. State, 132 Fla. 36, 180 So. 368
(1938); Orosz, supra. We have found no Florida case in which an appellate court
has reversed the decision made by the court regarding a sleeping juror. Appellate
courts have affirmed on appeal both the decision to replace a sleeping juror, e.g.,
Orosz, supra, as well as the decision to retain a sleeping juror, e.g., Ivey, supra.
[emphasis added]

Id. at 464. The Court does not believe that it abused its discretion with regard to the

requested removal of Ms. Castaneda.

The Court based upon personal observation determined that Ms. Castaneda was

not asleep during the presentation of evidence and was fit to continue as a juror. The

Court: 1) made personal observations; 2) interpreted what was observed; 3) made a

finding on the record; and 4) concluded that removal of Ms. Castaneda was not

necessary.

While the Defendant continuously asserts that juror interviews were necessary to

resolve this issue, this is simply not the case. Where the Court makes personal

9
observations and reaches conclusions based on those observations, there is no

requirement (or need) for the Court to take testimony.

Objective Entrapment

The Defendant assigns as error the Courts failure to instruct the jury on objective

entrapment. Florida recognizes two forms of entrapment, subjective entrapment and

objective entrapment. State v. Laing, 182 So. 3d 812, 815 (Fla. 4th DCA 2016).

Objective entrapment focuses on the conduct of law enforcement. Subjective entrapment

is codified by the legislature in 777.201, Fla. Stat. (2009) and focuses on inducement of

the accused based on lack of predisposition. Id. at 815-16.

The Defendant never sought an instruction on subjective entrapment. Indeed, the

Defendant consistently stated that she was not pursuing a subjective entrapment defense

and there was no evidence presented at trial to support subjective entrapment.6 Rather

than pursue subjective entrapment the Defendant asked for an instruction on objective

entrapment.

The proposed instruction on objective entrapment essentially advised the jury that

they should find the Defendant not guilty if they found that the conduct of the police was

outrageous. Indeed, the actual instruction submitted by the Defendant stated that the

State must prove beyond a reasonable doubt that the conduct of the police was not

outrageous.

6
There was never any evidence that the Defendant was induced to do anything by law
enforcement. The Defendant did offer evidence that Mohamed Shihadeh was pressured
by the police to assist in the undercover operation, but there was never any evidence that
Mohamed Shihadeh , or anyone else, pressured the Defendant in any way.
10
 The Court ruled at trial that subjective entrapment is an issue for the jury while

objective entrapment is a due process violation to be decided by the Court.7 The Court

continues to believe that this was the correct ruling consistent with law in the State of

Florida. While the entrapment defense has evolved over time, objective entrapment has

consistently been an issue for judicial determination.

In State v. Glossen, 462 So. 2d 1082 (Fla. 1985), the Florida Supreme Court

rejected the States request to allow a jury to decide objective entrapment. The Court

stated:

Two reasons require us to reject the state's argument that the due process defense
in this case presents a credibility issue for the jury rather than a question of law
which the trial court may decide on a rule 3.190(c)(4) motion to dismiss. The due
process defense based upon governmental misconduct is an objective question of
law for the trial court, as opposed to the subjective predisposition question
submitted to the jury in the usual entrapment defense. [emphasis added]

Id. at 1084. Glossen was quickly followed by Cruz v. State, 465 So. 2d 516 (Fla. 1985).

In Cruz, the Supreme Court sought to establish the proper application of the

entrapment defense in Florida. The Court established a threshold objective entrapment

analysis, but also recognized that entrapment can be subjective when predisposition is an

issue. The Court again, however, stated: The subjective test is normally a jury question.

The objective test is a matter of law for the trial court to decide. Cruz, id. at 521.

After Cruz, the legislature passed section 777.201 which provides as follows:

1) A law enforcement officer, a person engaged in cooperation with a law

enforcement officer, or a person acting as an agent of a law enforcement officer
perpetrates an entrapment if, for the purpose of obtaining evidence of the
commission of a crime, he induces or encourages and, as a direct result, causes

7
The Court, at the Defendants request, conducted an extensive evidentiary hearing
pretrial on the Defendants assertion that she was a victim of objective entrapment. At
the conclusion of the hearing, the Court ruled adversely to the Defendant finding that the
prosecution of this case was not barred by outrageous police conduct. (DE #826).
11
 another person to engage in conduct constituting such crime by employing
methods of persuasion or inducement which create a substantial risk that such
crime will be committed by a person other than one who is ready to commit it.

(2) A person prosecuted for a crime shall be acquitted if he proves by a

preponderance of the evidence that his criminal conduct occurred as a result of an
entrapment. The issue of entrapment shall be tried by the trier of fact.

777.201, Fla. Stat. (2009). Section 777.201 eliminated the threshold objective

entrapment defense test in set forth in Cruz. Section 777.201 applies a subjective test for

entrapment based on inducement and places and initial burden on the defendant to

establish entrapment. Since the passage of section 777.201, objective entrapment has

continued to be recognizes in Florida, but only as a due process violation. See, Munoz v.

State, 629 So. 2d 90 (Fla. 1993).

Due process violations are determined by the Court, not by the jury. To grant the

relief requested by the Defendant would lead to an absurd result. In every criminal case

the accused attacks the integrity of the investigation conducted by the police.

Questioning the integrity of a police investigation is important to determine if lapses in

the investigation could lead to reasonable doubt. However, to adopt the Defendants

argument here would mean that in any criminal trial not only could the defendant attack a

police investigation to suggest reasonable doubt, the State would be forced to prove

beyond a reasonable doubt that the police investigation was not outrageous.8 Such a

result would be contrary to the legislative intent codified in section 777.201 and contrary

to established precedent.

8
Since predisposition is not an issue for objective entrapment, the position advanced by
the Defendant here would allow a defendant in every case to place an entrapment defense
before the jury without ever complying with 777.201.
12
 Bad Acts Defendants Prior Conduct

While not elaborating, the Defendant asserts that it was error to admit evidence of

the Defendants prior bad acts. At trial the State was permitted to introduce evidence

that in the months leading up to the solicitation of Widy Jean to murder her husband, the

Defendant was scheming with an individual named Michael Stanley to violate Michael

Dippolitos probation and/or to take his property.

The evidence in dispute was contained mainly in a series of text messages

between the Defendant and Mr. Stanley. In these text messages, the Defendant and Mr.

Stanley, inter alia, discussed and planned: 1) planting drugs in Mr. Dippolitos car to

violate his probation; 2) tricking Mr. Dippolito with a fake lawyer into believing he was

on administrative probation and no longer needed to report; 3) obtaining title to Mr.

Dippolitos townhouse.

The text messages contained repeated expressions by the Defendant that she

needed to rid herself of her husband. While there was no discussion of killing her

husband in the text messages, the constant theme of the text messages was to find a way

to violate Mr. Dippolitos probation so that the Defendant and Mr. Stanley could be

together.

While the Defendant suggests that the admission of this evidence was error, the

Court disagrees. Evidence revealing the Defendants attempts to rid herself of her

husband in the months leading up to the crime was clearly inextricably intertwined with

the charged crime of solicitation to commit first degree murder. Evidence is inextricably

intertwined if the evidence is necessary to (1) adequately describe the deed; (2) provide

an intelligent account of the crime(s) charged; (3) establish the entire context out of

13
which the charged crime(s) arose, or (4) adequately describe the events leading up to the

charged crime(s). McGee v. State, 19 So. 3d 1074, 1078 (Fla. 4th DCA 2009).

In this case, the evidence that the Defendant was scheming with Mr. Stanley to rid

herself of Mr. Dippolito and take his property meet all of the criteria necessary for

admission as evidence that is inextricably intertwined. The evidence described the deed

and provided an intelligent account of the crime. This evidence made clear why the

Defendant was attempting to kill her husband and placed the crime in context by

describing the events that led to the Defendants decision to hire a hitman. Without this

evidence, there is no context, no explanation or motive for the Defendants actions.

Exclusion of Expert

The Defendant asserts that it was error to exclude the testimony of Dr. Lenore

Walker. The saga of the Defendants attempt to use Dr. Walker began shortly before trial

was scheduled to commence. Dr. Walker interviewed, and apparently tested, the

Defendant. She concluded that the Defendant suffered from Post Traumatic Stress

Disorder (PTSD) and that as a result the Defendant was highly susceptible to coercion

by men at the time of the alleged incident.

The State filed a motion to exclude Dr. Walkers testimony at trial. See DE

#1310. The State alleged that they had a right to have the Defendant examined by a State

expert and that the Defendant failed to give timely notice of her intent to rely on PTSD

under Fla. R. Crim. P. 3.201(b). The Court did not strike Dr. Walker based on notice, but

did set forth the conditions under which Dr. Walkers testimony would be admissible.9

9
There was never any issue concerning Dr. Walkers credentials or expertize. Dr.
Walker is clearly qualified in her field.
14
 The Defendant conceded that Dr. Walker could not testify that the Defendant

suffered from PTSD, or provide any testimony specific to the Defendants mental state,

unless the State had an opportunity to have the Defendant examined by a State expert.

State v. Hickson, 630 So. 2d 172 (Fla. 1993). Therefore, the Court found that the State

had a right to have the Defendant examined.

The Court also advised the parties of the circumstances under which evidence of

PTSD is admissible. Florida law does not allow for the admission of diminished capacity

evidence to negate intent absent an insanity defense. Chestnut v. State, 538 So. 2d 820,

825 (Fla. 1989). Therefore, evidence of PTSD, or of the Defendants mental state, could

not be offered generally to negate intent in this case.

However, PTSD has been recognized as admissible to establish certain defenses

where the defendants state of mind is at issue. Evidence of PTSD is admissible in a case

where the Defendant has alleged subjective entrapment.10 See, e.g. Delice v. State, 878

So. 2d 465, 468 (Fla. 4th DCA) (expert testimony of depression was admissible to

defense of subjective entrapment but not as to diminished capacity). As PTSD is relevant

to subjective entrapment, the Court ruled that Dr. Walker could testify if the Defendant

was pursuing a subjective entrapment defense.

While conceding that the State had a right to examine the Defendant, the

Defendant initially would not disclose or could not decide - whether Dr. Walker would

be called to testify that the Defendant suffered from PTSD. The defense indicated that

they might just have Dr. Walker testify generally about PTSD without testifying

specifically about the Defendants mental condition. Given this ambiguity, the State

10
PTSD is also admissible when self-defense is at issue. State v. Mizell, 773 So. 2d 618
(Fla. 1st DCA 2000).
15
sought an order compelling the Defendant to appear for an examination by a State

expert.11

On June 6, 2017, the Court entered an order compelling the Defendant to undergo

a forensic examination by a State expert. The State selected Dr. Stephen Alexander to

examine the Defendant. The examination was scheduled for Saturday, June 10, 2017.

Neither the Defendant nor her counsel appeared. The examination was rescheduled for

Sunday, June 11, 2017. At this time, the Defendants attorney, Greg Rosenfeld, Esq.,

informed the State that the Defendant would not appear for the examination and the

Defendant would not have Dr. Walker testify that the Defendant suffered from PTSD.12

At the end of the trial, the Defendant still remained non-committal about the

calling of Dr. Walker as a witness. Finally, the Defendant proffered that she wanted Dr.

Walker to testify generally about how victims of domestic violence act and behave. The

State objected to this evidence based on relevancy and the Court sustained the objection.

While the Defendant challenges this ruling, the Court does not believe that the exclusion

of this general testimony was error.

The Defendant clearly announced that subjective entrapment was not being

pursued as a defense in this case. Therefore, the only possible reason to offer this general

testimony was to somehow justify the Defendants conduct or explain her intent. At best,

this general testimony without a subjective entrapment defense was diminished

11
The State was concerned that the Defendant could wait until the last minute to decide
about Dr. Walkers role and thereby deprive the State of the right to conduct an
examination.
12
The Defendants failure to appear violated the Courts order of June 6 and the State is
seeking sanctions against the Defendants attorney.
16
capacity evidence. Diminished capacity evidence is not admissible absent insanity.

Chestnut, id.

Moreover, Dr. Walker could not be asked any questions concerning the

Defendants actual mental condition. The Defendant forfeited the right to place this

evidence before the jury because she refused to allow the States expert the opportunity to

perform an evaluation. See, Hickson, id. Therefore, there was no nexus between the

Defendant and any of the generalized testimony by Dr. Walker.

The Defendant argued at trial that under the holding in Hickson an expert can

testify in generalities and to hypotheticals without an examination of the defendant. This

is true, but the general testimony still has to be relevant to a defense in the case or an

issue in the case. In Hickson, the defendant asserted self-defense. The generalized

testimony in Hickson was relevant to this defense. Here, the generalized testimony

would have been admissible if the Defendant pursued subjective entrapment. The

Defendant did not pursue subjective entrapment or any other defense that would make the

proffered evidence relevant.

The Court does not believe that the appellate issues identified by the Defendant

have merit. Moreover, there is overwhelming evidence of the Defendants guilt in the

record. Nevertheless, 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 about which reasonable questions exist.

Baker v. State, 213 So. 2d 285, 287 (Fla. 4th DCA 1968). Applying this standard, the

Court finds that the Defendant has met her burden to establish that the appeal is taken in

good faith.

17
 Younghans Factors

To determine whether post-trial release is now appropriate, the Court must

consider, balance and weigh the factors identified in Younghans. There are some

considerations which favor post-trial release, but there are also significant considerations

which weigh against release of the Defendant pending appeal.

The Court first considers the Defendants habits as respect to the law. Aside from

her conviction in this case, the Defendant does not have any other criminal convictions.

The Court is aware of one violation of the terms of the Defendants in-house arrest which

occurred when she was interviewed by 20/20. However, while the Defendant does not

have any prior criminal convictions, Younghans requires the Court to consider the

Defendants habits with respect to the law and does not require the Court to only

consider prior convictions.

Beyond the crime of solicitation to commit first degree murder, the evidence in

this case demonstrated a pattern of behavior by the Defendant that can only be

characterized as a disregard for the law. In the months before the commission of the

crime of solicitation, the Defendant: (1) planted drugs in her husbands car; (2) stole from

her husband; (3) planned to defraud her husband; and (4) tried to cause a violation of her

husbands probation. This activity demonstrates that the Defendant will violate the law

to obtain a desired result.

The Defendant has not violated the law while on in-house arrest. However, no

real conclusions can be drawn from this fact. While on in-house arrest, the Defendant is

closely monitored and faces revocation of her house arrest status if she violates the law.

18
On balance, the Defendants habits with respect to the law, the first factor under

Younghans, does not support post trial release as argued by the Defendant.

Ties to the community, the second factor identified in Younghans, does weigh in

favor of post-trial release. The Defendant has been a resident of Palm Beach County

since 1996. She resides with her mother. In addition to her mother, the Defendant has

other family members currently residing in Palm Beach County.

The next factor for consideration under Younghans is the severity of the sentence.

Here, the Defendant faces a severe sentence. The Defendant has now been sentenced to

16 years in the DOC. Based on the crime committed, the Court believes this to be an

appropriate sentence. However, there is no doubt that this sentence, for this Defendant, is

significant, substantial and - as contemplated by Younghans severe.

In the Courts view, the sentence imposed presents a significant risk of flight.

Standing alone, the sentence would not support a denial of post-trial release pending

appeal. Indeed, as the Defendant argues, she faced a 20-year sentence after her first trial

and did not flee. However, the Court believes that flight risk, and the appropriateness of

release while on appeal, must be assessed based on current circumstances applying logic

and common sense.

Younghans allows the Court to consider any other circumstances relevant to the

question of whether the person would be tempted to remove himself [or herself] from the

jurisdiction of the court. Id. at 310. Other circumstances must include the history of the

case, the pressures placed on the Defendant by that history, and the Defendants present

circumstances.

19
 This case has been pending for eight years. There have been three trials and the

Defendant has now been found guilty by two separate juries. During the pendency of the

case, the Defendant has faced, and continues to face, significant media attention. Logic

and common sense suggest that this history provides a temptation for flight.13

The Defendants prior conviction in 2011was reversed and could play no role in

sentencing the Defendant in 2017. Nor could the prior conviction in 2011 be considered

in determining conditions of pre-trial release after the verdict was set aside while the

Defendant was awaiting a re-trial. However, in evaluating the risk of flight at this time,

the Court finds that the prior conviction coupled with the most recent jury verdict is a

significant factor which must be considered.

The Defendant has tested the strength of the States case in separate trials

pursuing different theories of defense. On two occasions the jury has rejected the

Defendants theories of defense and has found her guilty as charged.14 It is reasonable to

conclude that any person twice convicted of a crime would believe that another trial after

appeal would also likely result in a conviction and yet another lengthy prison sentence.

This objectively reasonable belief that another trial would result in yet another conviction

and lengthy sentence increases the risk of flight. It is reasonable to conclude that faced

with the substantial likelihood that - even if successful a second time on appeal - a third

conviction is likely the Defendant may choose to flee.

13
The Court notes that the consideration under Younghans is the temptation for flight.
There does not appear to be any requirement that a trial court find that flight is likely.
14
The Court is cognizant that the Defendants second trial in December of 2016 ended in
a mistrial with 3 jurors voting for not guilty. However, three jurors also would have
found the Defendant guilty and the cumulative result of the three trials suggests the
overwhelming majority of jurors hearing the evidence in this case reached the same
conclusion the Defendant is guilty as charged.
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 The Court must also consider pressure created by the long history of the case

itself and whether this history increases the temptation for flight. The Defendant has

been on house arrest for eight years and has been tried three times. During this time, the

Defendant has been exposed to substantial and pervasive media coverage.

Objectively, the pressures created by living under such conditions makes flight a

temptation.15 It is reasonable to conclude that any person, including the Defendant, will

reach a point where flight is the chosen option to avoid the continued restrictions of

house arrest and to escape the pressures attendant to a high pressure case.

The Court must also consider the Defendants current circumstances and how

those circumstances may have changed over the time she has been on in-house arrest.

While on in-house arrest, the Defendant started a family and now has a young son.

Parenthood is, of course, to be celebrated. The Court has no issue with the fact that the

Defendant chose to have a child while on in-house arrest and is in no way critical of the

decision. To be clear, the Court does not seek in any way to punish the Defendant for

having a child.16

However, the Defendants change in family circumstance must be considered in

assessing the temptation for flight. Objectively, the natural desire of the Defendant to be

with her child increases the risk of flight. The Defendant is facing a prison sentence

which may separate her from her son for his entire childhood. Upon remand after the

15
These pressures necessary increase over time. Being exposed to house arrest, and the
threat of trial and incarceration for two years, or even four years, is not as significant as
eight years.
16
The Court specifically rejected any consideration of the Defendants son at the time of
sentencing. The fact the Defendant had a son was not relevant to the Courts
determination of punishment. What is being considered now is not punishment, rather
the Court is assessing circumstances that effect flight risk.
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jurys verdict, the Defendant immediately asked to call her son from the courtroom.

Separation from her son is obviously, and understandably, a very emotional issue for the

Defendant.

The Court concedes that a different view of parenthood can be espoused. It is not

unreasonable to suggest that parenthood brings additional stability, increases ties to the

community and thereby decreases risk. While the Court understands this perspective,

when considering the totality of the Defendants circumstances (severe sentence, multiple

convictions, pressure of eight years of house arrest etc.), the objectively reasonable

conclusion is that escape with her child is a significant temptation and risk.

Finally, the Court must consider the jail call proffered by the State between the

Defendant and an individual identified as James.17 While the Defendants random

discussion of a prison break in South Carolina could certainly be characterized as odd,

the Court cannot draw any real conclusions from the Defendants choice to discuss this

topic during the jail call. The discussion of the escape does not necessarily create an

inference that flight is likely.

There are, however, aspects of the call, and of her current relationship, which

require consideration. Early in the call, the male identified as James states that he cannot

wait to be out of here and to get on with our plan. There is no further discussion of a

plan or what is meant by getting out of here. Therefore, there is no direct evidence of

a plan to flee with the individual identified as James. However, the Defendants current

relationship with James is relevant.

17
While James was specifically identified at the hearing on the Defendants request for
bond, there is no need to further identify him here.
22
 The State correctly argues that there is evidence that the Defendant has a history

of manipulating men. Evidence of this was introduced at trial. The Defendants

relationship with James must be considered in light of this history. The Court has already

expressed concern that the Defendant is more likely to flee now that she faces separation

from her child. Separation from James also increases the risk of flight. Moreover, the

Court must consider the possibility that James could assist with flight if persuaded by the

Defendant. On balance, flight with James and her young son is a real risk in light of

the Defendants sentence and the history of this case.

There is no doubt that if asked the Defendant would deny any temptation to flee

based on the considerations identified by the Court. Nevertheless, the Court believes that

an objective, logical and common sense approach must be employed to assess the

Defendants temptation to flee. Applying such an approach, and balancing the factors

under Younghans, the Court concludes that the Defendant is a flight risk and that

appellate bond is not now appropriate in this case.

Based on the foregoing, it is hereby,

ORDERED AND ADJUDGED that Defendant Dalia A. Dippolitos Motion for

Appellate Bond is DENIED.

DONE AND ORDERED in Chambers, at West Palm Beach, Palm Beach

County, Florida this 16th day of August, 2017.

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Copies Furnished to:

ASA Craig A. Williams

ASA Laura Lairue
c/o State Attorneys Office
401 N. Dixie Highway
West Palm Beach, FL 33401
Office: (561) 355-7100
Email:Cwilliams@sa15.org,
llaurie@sa15.org

Brian Claypool, Esq.

1055 E. Colorado Boulevard
5th Floor
Pasadena, CA 91106
Office: (626) 664-9489
Email: Brian@ClaypoolLawfirm.com

Greg Rosenfeld, Esq.

Law Office of Greg Rosenfeld, P.A.
515 N. Flagler Drive, Suite P300
West Palm Beach, FL 33401
Office: (561) 820-1508
Cell: (516) 721-5014
greg@rosenfeldlegal.com

Andrew Greenlee, Esq.

401 E. 1st, Unit 261
Sanford, FL 32772
Andrew@andrewgreenleelaw.com

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