Appellate Law, Criminal Defense, Criminal Appeals & Criminal Appellate Review and Post Conviction Relief in Florida Courts, Federal District Courts and the 11th Circuit for Criminal Attorneys, Criminal Lawyers & Appellate Lawyers
The standard of review in criminal cases often turns on whether the decision being appealed is a decision of fact, a decision of law, or a discretionary decision.
Decisions of law are generally reviewed under the de novo standard. See Ornelas v. United States, 517 U.S. 690 (1996); Connor v. State, 803 So. 2d 598 (Fla. 2001). Orders granting a motion to dismiss an information or granting a judgment of acquittal may be reviewed under such standard. See State v. Pasko, 815 So. 2d 680 (Fla. 2d DCA 2002) (dismissal); Huggins v. State, 889 So. 2d 743 (Fla. 2004) (judgment of acquittal).
Many decisions in criminal cases are reviewed under the abuse of discretion standard. Such decisions include orders on motions to change venue, orders on motions to appoint experts to indigent defendants, orders finding the defendant competent to stand trial, orders relating to discovery, orders regarding severance or consolidation, orders on motions to continue trial, and orders on motions to withdraw a plea. See Rivera v. State, 859 So. 2d 495 (Fla. 2003) (venue); Robbins v. State, 891 So. 2d 1102 (Fla. 5th DCA 2004) (appointment of expert); Ferguson v. State, 789 So. 2d 306 (Fla. 2001) (competency); State v. Tascarella, 580 So. 2d 154 (Fla. 1991) (discovery); Crossley v. State, 596 So. 2d 447 (Fla. 1992) (consolidation or severance); Bouie v. State, 559 So. 2d 1113 (Fla. 1990) (continuance); Taylor v. State, 870 So. 2d 72 (Fla. 2d DCA 2003) (withdrawal of plea).
Some decisions are reviewable under more complex standards, such as orders granting or denying motions to suppress, or decisions to depart from the sentencing guidelines. See State v. Glatzmayer, 789 So. 2d 297, 301 (Fla. 2001) (motion to suppress); C.A.M. v. State, 819 So. 2d 802 (Fla. 4th DCA 2001) (motion to suppress); Banks v. State, 732 So. 2d 1065 (Fla. 1999) (departure from guidelines).
A special standard of review applies to convictions based on circumstantial evidence. See State v. Law, 559 So. 2d 187, 188 (Fla. 1989) (“Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.”) (citation omitted).
As I discussed in my previous post, generally speaking, issues must be properly and timely preserved in order for such issues to be considered on appeal. However, in criminal cases, where an error is so serious as to be deemed fundamental, an appellate court may review such errors even if trial counsel failed to object. Florida’s Fourth District Court of Appeal recently applied the doctrine of fundamental error.
In Brett Fenster v. State of Florida, 4D07-1983 (slip opinion, May 18, 2011) (not final until disposition of timely filed motion for rehearing), the Defendant argued, inter alia, that the prosecutor made fifteen improper comments during closing argument which warranted a new trial. However, the Court disagreed, and held that although the comments were not proper, the comments did not rise to the level of harmful or fundamental error. In its rationale, the Court noted that Defendant conceded that at trial, defense counsel only objected to two of the fifteen allegedly improper comments. Nevertheless, the Court recalled that pursuant to Martinez v. State, 761 So. 2d 1074, 1082-1083 (Fla. 2000), an appellate court may consider both preserved and unpreserved errors in determining whether the preserved error was harmless beyond a reasonable doubt. Unfortunately for Defendant, even after considering the preserved and unpreserved errors, the Fourth District ultimately concluded that any errors were harmless beyond a reasonable doubt, and that the cumulative effect of the errors did not rise to the level of fundamental error. See Fenster, 4D07-1983, slip op. at *3 (citing Boyd v. State, 45 So. 3d 557, 560 (Fla. 4th DCA 2010) (“Improper comments rise to the level of fundamental error only where the error ‘reaches down into the validity of the trial itself to
the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’”) (citation omitted)).
As can be seen from Fenster‘s quotation of Boyd, 45 So. 3d 557, the standard of fundamental error may be difficult to meet. Nevertheless, the doctrine remains a viable exception to the preservation of error rule.
The recent Eleventh Circuit opinion of Mark Duke v. Richard Allen, No. 09-16011, mentioned in my previous post, also shows how important it is for any criminal (or civil) trial attorney to properly preserve issues for subsequent review on appeal. Perhaps if Mark Duke’s trial counsel had secured a ruling by the trial court as to whether or not the record would reflect that the prosecutor had pointed to the defendant during the prosecutor’s closing argument, the appeal could have been decided differently.
Florida appellate courts also adhere to the principal that issues not raised or preserved in the lower court are generally waived on appeal. Appellate review of an issue in a criminal case may be precluded if counsel fails to assert a contemporaneous objection, or if counsel fails to renew objections at key stages of the criminal proceedings. Key stages of criminal proceedings include the discovery phase, pretrial motions, voir dire and jury selection, opening statements, calling and examination of witnesses, admission of evidence, motions made during the course of the trial, closing statements, jury instructions, post trial motions, and sentencing. If counsel fails to timely assert proper objections, or fails to renew such objections, or fails to secure a ruling on those objections, the appellate court may be precluded from considering the issue on appeal.
Discussions of different aspects of the preservation doctrine can be found in cases such as Sunset Harbour Condo. Ass’n v. Robbins, 914 So. 2d 925 (Fla. 2005), revised on reh’g, (Fla. 2005); Melbourne v. State, 679 So. 2d 759 (Fla. 1996); Castor v. State, 365 So. 2d 701 (Fla. 1978); Castaneda ex. rel. Cardona v. Redlands Christian Migrant Ass’n, Inc., 884 So. 2d 1087 (Fla. 4th DCA 2004); Taylor v. Public Health Trust of Dade County, 546 So. 2d 733 (Fla. 3d DCA 1989); City of Orlando v. Birmingham, 539 So. 2d 1133 (Fla. 1989); Franklin v. State, 965 So. 2d 79 (Fla. 2007); and, Hamilton v. R.L. Best Intern., 996 So. 2d 233 (Fla. 1st DCA 2008).
A recent opinion issued by the Eleventh Circuit is the latest example of how difficult it can be for a criminal defendant to win a petition for writ of habeas corpus. On May 26, 2011, the Eleventh Circuit affirmed the District Court’s denial of Mark Duke’s 2254 petition, finding that the Alabama prosecutor’s statements made in closing argument did not impermissibly comment on Duke’s right to remain silent. However, in a strong dissent, Circuit Judge Wilson pointed out the logical flaws of the majority opinion’s analysis of the prosecutor’s statements. The slip opinion can be found here.
Whether a party is in State or Federal court, whenever a court renders an adverse decision, a party should consider several factors in deciding whether to appeal the order, including: (1) whether there is a right to appeal the order; (2) when the appeal may be filed; (3) what are the time limits governing the appeal; (4) in which court will the appeal lie; (5) what is the applicable standard of review; and, (6) what are the costs associated with the appeal.
With regard to the right to appeal, parties should be aware that some orders may not be immediately appealable. Rather, the rules may provide that the appeal may only be heard at the end of the case.
With regard to the time of the appeal and applicable time limits, the parties may wish to consult the appellate rules for guidance on the time in which notices of appeal, appellate briefs, and appeals-related motions should be filed. Failure to follow the applicable rules may result in a party losing the appeal. The Rules for the United States Court of Appeals for the Eleventh Circuit may be found here. The Florida Rules of Appellate Procedure may be found here.
In determining where to file the appeal, appeals in both the State and Federal system generally lie with the next higher court. For example, State court cases in the County Court may be appealed to the Circuit Court, and Circuit Court cases may be appealed to the District Court of Appeal. Opinions rendered by any of the Florida District Courts of Appeal may be appealed to the Florida Supreme Court. In the Federal system, orders issued by a United States Magistrate Judge may be appealed to the United States District Court, District Court orders may be appealed to the Eleventh Circuit, and opinions issued by the Eleventh Circuit may be appealed to the United States Supreme Court.
Standards of review on appeal include de novo and abuse of discretion. A party should be aware that the likelihood of success on appeal may be determined in large part by the applicable standard of review.
Finally, a party should be aware that costs of an appeal may be substantial. Prior to deciding whether to appeal, a party may wish to consider the costs associated with filing the notice of appeal, designating the record and transcripts, and filing briefs and motions. Having counsel attend oral argument may also add to the cost of appeal.
As I mentioned in my previous post, the State and Federal courts generally operate independent of each other. However, there are occasions where the courts operate in a more related fashion.
For example, in the civil context, where a plaintiff may choose to commence litigation in State court, the defendant may choose to remove the action to Federal court, so long as the conditions for Federal jurisdiction are met, including diversity of the parties and amount in controversy, or federal question jurisdiction. See 28 U.S.C. sec. 1331, 1332, 1441, 1446. Or, where a plaintiff may choose to commence litigation in Federal court, the defendant may choose to remand, or return, the case back to State court. See 28 U.S.C. sec. 1441.
Before removing a civil matter to Federal court, or remanding the matter back to State court, counsel and the parties may wish to consider several factors, including (1) the costs of litigation in each forum; (2) the complexity of the claims; (3) whether federal claims are involved; and, (4) the need for a timely resolution of the case.
In the criminal context, individuals who are arrested by State agencies, including local police departments and sheriff’s offices, are generally prosecuted in a Florida state court. However, if a violation of a Federal criminal statute is intertwined with the State criminal offense, the State offense may be prosecuted in Federal court. Defendants who have been prosecuted in State court may seek to have the Federal courts review the constitutionality of their State convictions pursuant to the writ of habeas corpus. See 28 U.S.C. sec. 2254. In Florida, rulings rendered by the United States District Court may be appealed to the United States Court of Appeals for the Eleventh Circuit and to the United States Supreme Court.
Just like individuals in any other State, Floridians have two court systems within their State: the State courts and the Federal courts. While there are occasions where the State and Federal court systems operate in a somewhat related fashion, for the most part, each system enforces its own laws independent of the other.
Similar to the Florida courts, the Federal courts are organized into areas of territorial jurisdiction. The Northern District of Florida encompasses Pensacola, Panama City, Tallahassee, and Gainesville. The website for the Northern District can be found here. The Middle District of Florida encompasses most of the middle portion of the State, including Jacksonville, Ocala, Orlando, Tampa, and Fort Myers. The website for the Middle District can be found here. The Southern District encompasses the eastern portion of the State, including Fort Pierce, West Palm Beach, Fort Lauderdale, and Miami. The website for the Southern District can be found here.
Also similar to the State courts of Florida, the Federal courts have a distinct trial and appellate system. The United States District Court operates as the trial court, and is presided over by United States Magistrate Judges, United States District Court Judges, and Senior United States District Court Judges. The United States Court of Appeals for the Eleventh Circuit, which is based in Atlanta, Georgia, is the Federal appellate court for the States of Florida, Georgia, and Alabama. The website for the Eleventh Circuit can be found here. Any appeals taken from the Eleventh Circuit would be filed in the Supreme Court of the United States, in Washington, D.C. The website for the Supreme Court of the United States can be found here.