Florida Criminal Appeals Attorney Law

Appellate Law, Criminal Defense and Appeals and Post Conviction Relief in Florida Courts, Federal District Courts and the 11th Circuit

Month: June, 2011

Judicial Vindictiveness in Sentencing-Jerome Vardaman v. State, 4D08-2603

In an opinion released on June 29, 2011, the Fourth DCA reversed a sentence which the Court found to be the product of judicial vindictiveness.  In Jerome Vardaman v. State, 4D08-2603, the Court reversed two 30 year sentences imposed by Circuit Judge Cynthia Imperato of the Seventeenth Judicial Circuit.  In 2002, Vardaman pled to carjacking with a firearm, robbery with a firearm, and resisting arrest without violence, and was sentenced as a Youthful Offender to a combination of prison, community control, and probation.  In 2008, Vardaman was arrested on new drug charges.  During the violation of probation proceedings, Judge Imperato initiated plea discussions with Vardaman.  He rejected the Judge’s initial offer of 8 years’ incarceration on Counts I and II, concurrent, with credit for four years, and proceeded to final hearing.  After being found guilty of the violation, Judge Imperato sentenced Vardaman to concurrent 30 year terms.

In its analysis, the Court cited Mounds v. State, 849 So. 2d 1170, 1171 (Fla. 4th DCA 2003) and Wilson v. State, 845 So. 2d 142 (Fla. 2003) for the proposition that where there is judicial participation in plea negotiations, followed by a harsher sentence, a totality of the circumstances approach must be used to determine if the sentence is the product of vindictiveness.  If the defendant demonstrates vindictiveness, the burden shifts to the  State to rebut the showing.  The Court also recalled that other factors to consider include (1) whether the trial judge initiated the plea discussions in violation of State v. Warner, 762 So. 2d 507, 513 (Fla. 2000); (2) whether the judge, through comments on the record, appeared to have departed from the role of impartial arbiter by either urging the defendant to accept the plea, or by stating that the sentence imposed would hinge on future procedural choices, such as exercising the right to trial; (3) the disparity between the plea offer and ultimate sentence imposed; and, (4) any lack of facts on the record to explain the reason for the increased sentence.  Because Vardaman established each of the foregoing factors, the Fourth DCA reversed his sentence and remanded the matter for resentencing before a different Judge.

The lesson criminal attorneys can take from this case is obvious: be cautious when the trial judge participates in plea negotiations.  If the ultimate sentence imposed is more harsh than what was initially offered, and if the above factors are present, there may be a good basis to appeal the sentence based on judicial vindictiveness.

Blago Stunned After Jury Convicts on Corruption Charges

CNN reports that former Illinois Governor Rod Blagojevich has been convicted of 17 out of 20 corruption charges for trying to sell the U.S. Senate seat which had been held by Barack Obama before Obama became President.  Most counts reportedly carry a maximum of 20 years.  “I am frankly stunned,” Blago reportedly stated after the verdict was rendered at the conclusion of his retrial.  This may be the first time that Blago actually had little to say since his criminal case commenced in 2008.

What stuns me is the open air of invincibility that Blagojevich displayed throughout the process.  What exactly was it that stunned him?  That he was charged?  That a jury convicted him? What is it that makes a person who occupies a position of power believe that their power is absolute?

What happens next should be fairly routine for criminal cases.  A sentencing hearing will be scheduled, and a sentencing report will be likely be generated.  The Government and defense may file sentencing memoranda to be considered by the Court.  At the sentencing hearing, the Court will likely hear argument of counsel and take testimony from witnesses.  If Blagojevich is smart, he will take any advice given by his attorneys, and try to show remorse for his actions.  The attitude he has shown to the press cannot be the attitude he shows to the Judge at sentencing.   After considering all the evidence, the Court will pronounce the sentence, and the time for appeal will start ticking.  I can’t predict what issues will serve as the basis for appeal, but I think it’s pretty safe to assume that there will be an appeal.  Stay tuned . . .

First DCA Judge Paul Hawkes Charged in Ethics Complaint for Involvement with Construction of “Taj Mahal” Courthouse

On May 17, 2011, formal ethics charges were filed against First DCA Judge Paul M. Hawkes for his involvement in the construction of the First DCA’s new courthouse in Tallahassee.  The Notice of Formal Charges filed by the Judicial Qualifications Commission can be viewed on the Florida Supreme Court’s website.  Attorneys, both criminal and non-criminal, are aware that many courthouses around the State are suffering from a lack of funding.  For example, the Fourth DCA in West Palm Beach is closing the doors of its law library on July 1, 2011, and for the last several years, the Broward County Courthouse has been suffering from repeated instances of flooding.

However, despite such tough economic times, the First DCA managed to construct what has been called the “Taj Mahal” of courthouses.  An October 2010 audit of the new courthouse revealed that unnamed Judges at the First DCA took control of the construction process, and added millions onto the budget with custom fixtures, etched glass, African mahogany, and granite.  According to the audit, the cost for the new courthouse was initially budgeted at $31 million.  By the time all the extras were added, the cost was increased to $48 million.

According to the Notice of Formal Charges, Judge Hawkes allegedly (1) bullied several individuals involved with the construction of the courthouse; (2) persuaded the other members of the Court to spend budgetary surplus on the purchase of 45 new desks for law clerks just so the desks would match the rest of the “color palette” in the courthouse; (3) tried to coerce the Court Marshal to change his account about a trip that Judge Hawkes was reportedly planning to the site of one of the courthouse furniture manufacturers; (4) took over the budgeting functions of the Court Marshal’s office, and manipulated the Court’s budget; (5) misled the other Judges on the Court as to what he was doing with the budget; and, (6) forced the Deputy Marshal to destroy a cabinet full of public documents relating to the courthouse construction.  In a charge unrelated to the new courthouse, Judge Hawkes allegedly directed one of his own lawclerks to work on a case that was being handled by his son before the Florida Supreme Court.

Although Judge Hawkes has yet to file a formal response to the charges, a Response and Objection filed by the JQC today shows that Judge Hawkes has requested the JQC to provide information relating to the charges.  It will be interesting to see how this turns out!

Two US Representatives Introduce Bill to End Some Federal Penalties for Marijuana, But Maybe a Different Approach is Needed

The Palm Beach Post has reported that US Representatives Barney Frank and Ron Paul have introduced a bill that would end some Federal penalties for marijuana.  Although many on the left will praise the Representatives for introducing the bill, any party (no pun intended) will likely be short lived.  While a recent report by the Global Commission on Drug Policy indicates that there may be growing support for a bill like that introduced by Representatives Frank and Paul, the likelihood of the bill passing seems to be very low.  Not only is the House controlled by Republicans, but the Democrats lack a majority in the Senate.  It seems pretty unlikely that enough Republican Senators would cross the aisle and vote in favor of such a bill.

Instead of focusing their efforts on decriminalization, perhaps Federal legislators should consider providing increased funding for State drug court programs.  In 2006, the Department of Justice issued a report wherein the Department discussed the feasibility of a Federal drug court program.  In the last footnote on the last page of the Report, the Department noted that 72% of State courts reported that a lack of funding was their major obstacle.  Increasing  funding to State drug court programs would provide both social and economic returns to both Federal and State governments.  With their focus on rehabilitation instead of incarceration, drug courts have helped to reduce the caseloads in other criminal divisions, have helped to reduce the prison population, and have helped to address the problems of repeat offenders.  Drug courts may also help save money down the road.  If drug court participants get the treatment they need in drug court, they may be less likely to commit more drug related offenses in the future.  And if those same drug court participants commit fewer drug related offenses, fewer arrests and prosecutions will be needed, thereby saving many State and Federal agencies time and money.

Everyone knows the economy is suffering now, and has been for quite some time.  What many people, other than attorneys, may not know is that the Courts are facing similar economic issues.  The State of Florida has reduced court funding to dangerous levels.  Even though the US Congress faces numerous budgetary issues, it may be smart to revisit the issue of drug court funding.

To learn more about Florida’s drug courts, go here.

Is Florida’s Death Penalty Unconstitutional? The Court says YES in Evans v. McNeil, 08-14402-CIV-JEM

A United States District Court Judge for the Southern District of Florida, Judge Jose Martinez, recently granted a 2254 petition for writ of habeas corpus in Evans v. McNeil, 08-14402-CIV-JEM, concluding that Florida’s death penalty procedure violates the United States Supreme Court case of Ring v. Arizona.  In Ring, the Court struck down Arizona’s death penalty scheme because jurors were not required to agree on aggravating factors, which violated the Sixth Amendment.  In Florida, the death penalty is handed down in a 2 step process.  First, the jury may recommend the death penalty if 6 of the 12 jurors agree.  (I am not the only attorney to recognize how ironic it is that to be convicted of even a misdemeanor crime, the jury verdict must be unanimous, but to be sentenced to death, only 6 of the 12 must agree).  In the second step, after the jury makes its recommendation, the Judge conducts a sentencing hearing where he or she uses the jury recommendation in reaching the actual sentencing decision.  According to Judge Martinez’s opinion, the Florida scheme violates Ring because (1) the jury is not required to unanimously agree on the factors in support of the death penalty; (2) the jury never makes any specific findings of fact in support of their recommendation; and, (3) in the sentencing phase, the Judge takes evidence alone, without a jury, and neither the defendant, nor any reviewing court, has any way of knowing whether the Judge imposed the death penalty based on the same, or different factors, than were relied on by the jury.  According to Judge Martinez, such a process cannot be reconciled with Ring.

No doubt, Judge Martinez’s Order will be appealed, and criminal lawyers across the State will be watching.  A flurry of appeals will likely be filed by death row inmates themselves.  Perhaps the Florida Legislature could just save everyone some time and effort, and create a new scheme to cure the constitutional deficiencies.  Somehow, I suspect that won’t happen.  The Florida Supreme Court already asked the Legislature to fix the sentencing scheme, and the Legislature failed to act.  Even if the Legislature did act, I doubt they could pass anything.  If Florida’s legislators cannot even agree on simple legislation, how could anyone expect them to agree on something as important as the death penalty?

To read more about this topic, see the articles in the Palm Beach Post, the Sun Sentinel, and the Southern District of Florida Blog.

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