Florida Legislature Votes to Change How Court Appointed Attorneys Are Paid-Again

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The word is spreading fast among South Florida’s criminal defense lawyers.  In a last minute legislative maneuver, the Florida legislature passed SB 1960, a bill which takes effect July 1, 2012.  The bill changes the way court appointed attorneys are paid in Florida-again-by creating two registries: a “general registry,” and a “limited registry.”  If you are an attorney that is currently on a court-appointment wheel, you may soon be getting an e-mail from your judicial circuit administrator asking you if you want to be listed on the general registry, or the limited registry.  According to the language of SB 1960, attorneys on the limited registry will be limited to a statutory cap on their attorney’s fees.  The caps, as outlined in soon-to-be-effective section 27.5304, entitled “Private court-appointed counsel; compensation,” provides the following caps on fees:

(1) For misdemeanors and juveniles represented at the trial level: $1,000

(2) For noncapital, nonlife felonies represented at the trial level: $2,500.

(3) For life felonies represented at the trial level: $3,000

(4) For capital cases represented at the trial level: $15,000.  The Bill defines a “capital case” as “any offense for which the potential sentence is death and the 280 state has not waived seeking the death penalty.”

(5) For representation on appeal: $2,000.

See SB 1960, section 27.5304(5).  Attorneys will only be permitted to exceed the statutory cap upon the filing, and granting, of a motion. See SB 1960, section 27.5304(12).

A word of caution to criminal defense attorneys who opt to be listed on the “general registry:” pursuant to SB 1960, section 27.40, if your circuit creates a “limited registry,” the court will have to make appointments from the “limited registry” first, and then only from the “general registry” if there are “no attorneys available to accept the appointment on the limited registry.”  See SB 1960, section 27.40(3).

If you are an attorney who takes appointments to criminal cases, you might want to take a few moments and read the bill in its entirety.




			

	
		
	


				
					


		

		
Lafler v. Cooper, No. 10-209: A Follow-Up to Missouri v. Frye, No. 10-444


				

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This is a follow up to my last post, where I discussed an opinion issued by the United States Supreme Court, Missouri v. Frye, No. 10-444, wherein the Court held that a criminal defense lawyer’s failure to communicate a plea offer may provide a basis for federal habeas relief.  In Lafler v. Cooper, No. 10-209, issued the same day as Frye, the Court addressed the issue of what remedies may be available to such a federal habeas petitioner.


Lafler went to trial rather than accept a plea deal.  Because Lafler received a more severe sentence at trial, one 3½ times more severe than he likely would have received by pleading guilty, all the parties conceded that Lafler’s decision to reject the plea offer was the result of ineffective assistance during the plea negotiation process.  As a result, the specific issue addressed by the Court was “how to apply Strickland’s prejudice test where ineffective assistance results in a rejection of the plea offer and the defendant is convicted at the ensuing trial.”  Lafler, slip op. at pgs. 4-7.


Although the District Court ordered specific performance of the original plea agreement as a remedy, the Court held that the correct remedy under the circumstances  is to order the State of Michigan to reoffer the plea agreement.  If Lafler accepts the offer, the state trial court would then be free to exercise its discretion under the relevant State law to determine whether to vacate the convictions and resentence Lafler pursuant to the plea agreement, to vacate only some of the convictions and resentence Lafler accordingly, or to leave the convictions and sentence from trial undisturbed.  As noted by the Court, its decision “leaves open to the trial court how best to exercise that discretion in all the circumstances of the case.”  Lafler, slip op. at pg. 16.


In my view, this decision is yet another step by the Court to becoming a kinder, more gentler Court for federal habeas petitioners.  For one of my previous posts on the Court’s change, click here.  To read more about the oral arguments in the companion cases of Frye and Lafler, click here.

			

	
		
	


				
					


		

		
United States Supreme Court Addresses Claims of Ineffective Assistance of Counsel for Failure to Communicate Plea Offers: Missouri v. Frye, No. 10-444


				

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Any experienced criminal defense lawyer should know that he or she has a duty to communicate plea offers to their client.  But did you know that failing to communicate a plea offer might subject you to a claim of ineffective assistance of counsel?  The United States Supreme Court recently addressed this issue in Missouri v. Frye, No. 10-444.  In Frye, the defendant entered a plea of guilty to the charge of driving with a revoked license.  After being sentenced, he filed a motion for postconviction relief based on his attorney’s failure to communicate a plea offer which had lapsed prior to his entering the plea.  Predictably, Frye testified at an evidentiary hearing that he would have entered a guilty plea to the misdemeanor had he known about the offer.  In its Opinion, the Court focused on the factual “context of claimed ineffective assistance that led to the lapse of a prosecution offer of a plea bargain, a proposal that offered terms more lenient than the terms of the guilty plea entered later.”  Slip Op. at pg. 1.  The Court therefore framed the issue as “whether the constitutional right to counsel extends to the negotiation and consideration of plea offers that lapse or are rejected.”  Slip Op. at pg. 1.


In holding that the right to counsel extends to such plea offers, the Court reasoned that today’s criminal justice system has become dominated by the plea-bargaining process.  As noted by the Court, because today’s system is based on pleas, as opposed to trials, “the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant” for purposes of the Sixth Amendment’s right to effective assistance of counsel.  Slip op. at pg. 8.  Next, the Court held that “defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.”  Slip op. at pg. 9.  Because counsel failed to communicate the formal offer to Frye, the Court held that counsel had performed deficiently under Strickland v. Washington, 466 U. S. 668, 686 (1984).


Turning to the prejudice prong of Strickland, the Court then stated that defendants must show (1) a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel; and, (2) a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law.   The Court further noted that to establish prejudice, a defendant would have to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.  Slip op., pg. 12.


As I was reading the rather dry majority opinion, something was not sitting right with me.  I wondered: how can the Court reconcile its decision (that counsel can be deemed ineffective for failing to communicate a plea offer) with the fact that a defendant has no right to be offered a plea in the first place, or a federal right to have the trial court accept a plea?  After all, the majority opinion acknowledged such fact at pages 5 and 12 of the slip opinion (citing Weatherford v. Bursey, 429 U. S. 545, 561 (1977); and Santobello v. New York, 404 U. S. 257, 262 (1971)).


Then, reading the opening paragraph of Justice Scalia’s dissent, I had one of those “aha!” moments.  Scalia wrote,  “Counsel’s mistake did not deprive Frye of any substantive or procedural right; only of the opportunity to accept a plea bargain to which he had no entitlement in the first place.”  Scalia Dissent, Slip. Op. at pgs. 1-2.  Scalia further noted that the majority acknowledged that the plea that Frye ultimately accepted was not tainted by any attorney error.  Scalia Dissent, Slip Op. at pg. 2.


Against those two points, Scalia presents a logical argument: that the majority opinion certainly seems to be out of sync with previous jurisprudence in this area.  The remainder of Justice Scalia’s dissent contains a good discussion of the difficulties that the Court’s majority opinion has left the lower courts, and criminal defense lawyers, to deal with.  I highly suggest that anyone who practices in this area to take a few moments to read the opinion.


In my next post, I’ll discuss Lafler v. Cooper, No. 10-209, another opinion released on the same day as Frye, which addresses other questions relating to ineffective assistance with respect to plea offers, including remedies.

			

	
		
	


				
					


		

		
Still Waiting for Florida Supreme Court to Issue Opinions in State v. Hernandez and State v. Adkins


				

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It’s been quite a while, but still no word from the Court on two important criminal appeals cases.  If you recall, Hernandez concerns the issue of advising criminal defendants of the immigration consequences of their pleas, in light of the United States  Supreme Court decision, Padilla v. Kentucky.  Adkins involves the constitutionality of Florida’s drug possession statute, section 893.13.  The longer the wait, the more cases pile up in the courts, both at the trial and appellate levels.  The docket for State v. Hernandez, SC11-1357, and State v. Adkins, SC11-1878, can both be viewed at the Florida Supreme Court website.


The wait continues. . .

			

	
		
	


				
					


		

		
Practical Tips for Federal Court-Part II


				

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Just a few more tips for those of you who might find yourselves in Federal court, especially in the Southern District of Florida . . .


1.  You probably know that everything in Federal court gets filed electronically on CM/ECF.  To avoid getting too many nasty-grams from the Clerk’s office for improper filing, it’s probably a good idea to visit the Clerk’s website and download a copy of the Administrative Procedures governing CM/ECF.


2.  If you’re a civil attorney whose case gets assigned to a Judge that runs a “rocket docket,” you should consider consenting to the jurisdiction of a United States Magistrate Judge.  Most often, you’ll have the ability to special set your hearings and trials, and you might get a bit more time to work the case up effectively.  To consent to the jurisdiction of one of the Magistrate Judges (notice that I am NOT referring to them as “magistrates”–that term is for state court only), you can obtain the proper consent form from the Local Rules.  Both sides need to agree, as do the clients.


3.  If you’re a criminal defense attorney who handles a lot of sentencing hearings, you might want to reconsider sending in all those letters extolling the virtues of your client.  Several Judges who were at the Federal Bench Bar conference in West Palm Beach on April 27, 2012, actually said that they are not really persuaded by the letters.  Rather, the Judges would find it more helpful for criminal defense attorneys to focus the court’s attention on the sentencing factors listed in 18 U.S.C. section 3553(a).  As required by United States v. Booker, 543 U.S. 220 (2005), the Judges said they really try to focus on determining a sentence that is “sufficient and not greater than necessary.”  However, if you do find it necessary to submit letters, some of the Judges said that any person submitting a letter should not also be called as a witness.  As for the length of the hearings, the Judges also said that most sentencing hearings should be completed in about 30 minutes.  Finally, several of the Judges said that since Booker, they might be more apt to go along with a sentencing variance, as opposed to an outright departure, since departures are more vulnerable to reversal on appeal.


4.  Finally, whenever you are in the Federal courthouse, as in any courthouse, be nice to everyone.  Negative comments about lawyers spread quickly.  Deputy Marshals will gossip just as much as the CRDs, Clerks’ staff, and chambers staff.  Be nice to everyone there, and they will be nice to you (well, for the most part . . .)

			

	
		
	


				
					


		

		
Practical Tips for Federal Court


				

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If you’ve ever been in Federal court in South Florida, you already know that there is a huge difference between State and Federal Court.  In keeping with the Federal bench Bar Conference that happened in West Palm Beach on Friday, April 27, 2012, I thought some practical tips might come in handy.


1.  If your client gets slapped with Federal criminal charges, or your civil case gets removed to Federal court, DON’T PANIC.


2.  For civil cases, the first thing you should do is familiarize yourself with the Local Rules for the Southern District.  They are available on the Southern District website.


3.  For criminal cases, you’ll need to call the Assistant United States Attorney (AUSA) assigned to the case to determine if he or she will agree to release your client on bond or whether the Government is seeking pre-trial detention.  Unfortunately for criminal defense lawyers and their clients, most criminal defendants, at least those that have their cases assigned to the West Palm Beach courthouse, have historically been detained without bond.  But, there is potentially some good news: with two new Magistrate Judges on the bench this year, maybe things will change.  After all, Magistrate Judge Brannon (already on the bench) is a former Federal P.D., and the next Magistrate Judge to be sworn in, Bill Matthewman, is also a former criminal defense lawyer.


4.  As your case progresses, some other things to keep in mind are:


(a) Try to keep phone calls to chambers to a minimum.  Scheduling of matters is, for the most part, handled through the courtroom deputy (CRD), not chambers. If you have to call chambers, be polite.  After all, the person answering the phone might be a law clerk who will be writing the order on your case!


(b) Don’t call chambers with questions like “what does the Judge want me to do,” or “how would the Judge like me to handle . . .”  As the lawyer on the case, it is your responsibility to figure things out for yourself.  Although many Judicial Assistants in State court will tell you what the Judge would like you to do, many chambers in the Southern District are required by the Judge to answer those kind of questions by simply referring you to the Local Rules.  Don’t take it personally.  Most Judges just want to avoid the possibility of ex parte communications.  Some Judges in the Southern District won’t even entertain calls to chambers or the law clerks.


(c) Don’t presume you’ll get a hearing on anything.  Most matters in Federal court are handled on the written pleadings only.  If you need a hearing, you must file a separate motion requesting the hearing.


(d) Since most matters are handled on the pleadings, put your best effort into your writing.  Say everything you need to say up front.  Acknowledge weaknesses in your case candidly, but then explain why those weaknesses should not affect the result in your case.  Be precise, be succinct, clearly cite all authorities and record references  in support of your position, and conclude.


(e) If a Magistrate Judge handles your motion/pleading, you will have the chance to file an objection within the requisite time frame (14 days).  The objection will then be handled by the District Court Judge, like an appeal.  If your pleading was disposed of by the District Court, you would appeal any rulings to the Eleventh Circuit, according to the Rules of Appellate Procedure.  For criminal cases, bond/detention orders are appealed to the District Court.


More tips to follow next time!

			

	
		
	


				
					


		

		
Another Win for the People of Florida, Another Loss for Florida Governor Rick Scott!


				

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Those of you who follow this blog know that Rick Scott’s policies have been a bit of a target . . .  Well, Rick Scott suffered another loss recently, in the form of a 37 page order issued by District Court Judge Ungaro.  In the Order, Judge Ungaro found that Scott’s policy of random drug testing of Florida’s state employees was unconstitutional.  To read the Order, click here.  To read a recent Miami Herald report, click here.


Happy reading!

			

	
		
	


				
					


		

		
Eleventh Circuit Rejects Actual Innocence Claim in Petition for Writ of Habeas Corpus: Rozzelle v. Secretary, Florida Dept. of Corrections, No.10-13595


				

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Florida criminal defense lawyers who handle federal petitions for writ of habeas corpus won’t be surprised to learn that the United States Court of Appeals for the Eleventh Circuit has recently rejected a claim of actual innocence.  Although the case, Roger Allen Rozzelle v. Secretary, Florida Dept. of Corrections, No.  10-13595, is long and contains a highly factually intensive analysis and procedural history, it’s worth taking a few minutes to review the Court’s discussion of the different types of claims of actual innocence that can be made in the habeas context.  Such discussion is found at pages 26-49 of the slip opinion.


Enjoy the rest of your weekend, South Florida!

			

	
		
	


				
					


		

		
New State Attorney Appointed for Palm Beach County: Peter Antonacci


				

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It’s been a really busy week, so I’ll keep this short.


The Palm Beach Post reports that Florida Governor Rick Scott appointed a new State Attorney for Palm Beach County today:  Peter Antonacci.  The criminal defense and criminal appeals lawyers of South Florida may recall that he previously served as Statewide Prosecutor, as well Bob Butterworth’s Deputy Attorney General.  More information on Antonacci’s previous experience has also been reported in the Sun Sentinel.


Antonacci sounds qualified enough on paper, but the fact that he most recently served as a Tallahassee lawyer and lobbyist, and that he admitted to having a “professional friendship” with Scott’s chief counsel, Charles Trippe, may also have had something to do with the appointment.  After all, he was chosen over 10 other applicants, one of whom was former Palm Beach County State Attorney Barry Krischer!  How’s that for Florida politics?

			

	
		
	


				
					


		

		
Martel v. Clair, No. 10-1265: United States Supreme Court Considers Motions to Substitute Counsel in Federal Habeas Proceedings for Capital Cases


				

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If you are a Florida criminal defense lawyer that handles federal habeas petitions in capital cases, the United States Supreme Court has issued an opinion that you may be interested in reading.  In Martel v. Clair, No. 10-1265, the Court held that motions to substitute counsel brought under 18 U.S.C. § 3599(e) should be evaluated using the same “interests of justice” standard applied in non-capital cases under a 18 U.S.C. § 3006A.  In so doing, the Court agreed with Clair, not the State of California, as to the standard that should be applied.


However, the Court went on to hold that Clair failed to show that the District Court abused its discretion when it denied Clair’s motion to substitute counsel.   In support of such holding, the Court reasoned that (1) during the 10 year period that Clair’s habeas petition was being litigated, Clair had filed, then dropped, several previous motions to substitute counsel; (2) the Court had already held an evidentiary hearing and entertained substantial post-hearing briefing; (3) because the motion for substitution of counsel claimed that new evidence had been discovered, granting Clair’s motion would mean that the District Court would have had to allow Clair to either amend his habeas petition, and allow a stay of the petition to allow Clair to exhaust his remedies in State court; and, (4) by the time that Clair had filed his motion to substitute counsel, the District Court had already ruled that further submissions would not be permitted.


The end result of the case may seem harsh.  After all, the Supreme  Court affirmed the District Court’s denial of Clair’s motion to substitute counsel, observing that “[t]he court was not required to appoint a new lawyer just so Clair could file a futile motion.”  Clair, No. 10-1265, slip op. at pg. 16.  However, attorneys familiar with capital cases and habeas proceedings should not be surprised that the Court had to call an end to the litigation at some point in time.