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
It’s a fact of life. Sometimes attorneys screw up. If you have a criminal case where your attorney screwed up, you may still have some options.
Pleas: If you entered a plea to criminal charges, you might want to first check out whether you can withdraw your plea. Under Criminal Rule 3.850(a)(5), you might be able to argue that your plea wasn’t made voluntarily because your attorney misadvised you about something that would happen after your plea, or that your attorney failed to tell you everything you needed to know. If you wanted to file such a motion, you’d basically be saying that you wouldn’t have entered the plea to the charges if your attorney gave you all the correct information you needed to know. Generally, these kinds of motions have to be filed within 2 years of your judgment and sentence.
Sentence: If you think there was something wrong with the sentence you got, you might want to look filing a motion to correct the sentence under Criminal Rule 3.800. Maybe the prosecutor made a mistake on your scoresheet calculation and your attorney didn’t catch it. Or maybe the sentence was illegal for some other reason, and your attorney didn’t catch that either. Or maybe you weren’t given enough credit for all the time you’ve spent in jail, and your attorney didn’t take care of it. Motions to correct illegal sentences can be filed at any time.
Appeal: For the most part, appeals are not supposed to address mistakes that you think your attorney made at trial. But, if your attorney’s mistake was really obvious, the court might find that the mistake can be addressed on appeal. Generally, notices of appeal have to be filed within 30 days of the day you were sentenced.
After appeal: Even after your appeal is done, your case might be able to go on. If you think your attorney screwed up at trial, then you might want to file a motion based on Criminal Rule 3.850. In these kinds of motions, (sometimes called “3850′s,” motions for post conviction relief, or habeas motions), you basically point the finger at your attorney, and say that you only got convicted because your attorney screwed up. These motions have to be filed within 2 years of your conviction.
Belated Appeal: Let’s say you asked your attorney to file a notice of appeal, and he or she didn’t. Are you out of luck? Nope! You might be able to file a motion asking the court to let you file an appeal late. It’s called a petition for belated appeal, and it’s allowed under Appellate Rule 9.141.
Perp walks. We’ve all seen them on the news. The police parading the suspects for all the news cameras to get their shots of the guy in handcuffs. What is the history of the perp walk? For a discussion of the perp walk, you can read an interesting article by NPR by clicking here. Inspired by the perp walk of Dominique Strauss Kahn, French citizen and former head of the IMF, NPR also published another report titled “French Law, American Custom and the Perp Walk.”
People have been debating the usefulness of perp walks for some time now. Michel Martin published a thought provoking article on the usefulness of perp walks last August. Only weeks after Strauss Kahn made his perp walk, New York City Mayor Bloomberg has spoken out against perp walks, calling them outrageous. It’s too early to say if this could be the beginning of the end for the perp walk. Only time will tell. But in my view, perp walks are completely at odds with one of our legal system’s core principles: innocent until proven guilty.
In today’s media culture, almost any criminal case can become a high profile case. All it seems to take is (1) the involvement of a relatively well known or notorious person ; (2) a sympathetic or outrageous crime; and (3) news coverage by the media. If circumstances are right, even purely local cases can be picked up by the national media and become high profile. (Anyone hear of the Casey Anthony trial??) The purpose of this post is to make a quick note of some things that an attorney may want to consider prior, during, and after trial.
Investigation phase: At some point, an attorney may learn that his or her client is the target of a criminal investigation. While this may be more common in the Federal system, it may also occur in the State system where police are conducting a long-time criminal investigation, or a large grand jury investigation is being conducted at the direction of the Statewide Prosecutor. Once an attorney is notified or learns that the investigation has targeted the client, an attorney may want to consult with the client about the possibility of approaching the relevant authorities to see if a deal can be worked out prior to indictment. This kind of deal may entail cooperation in exchange for an indictment on a lesser offense, or perhaps the withholding of an indictment altogether.
Prior to and at the start of trial: After the client gets charged with a crime, where the case involves co-defendants or multiple offenses, an attorney needs to consider a motion to sever pursuant to Fla. R. Crim. P. 3.152. If the case has been the subject of pre-trial publicity, counsel may wish to consider moving to change venue pursuant to Fla. R. Crim. P. 3.240. At the time of jury selection, counsel may wish use Rule 3.281 as a basis to request a list of all the prospective jurors, including their names and addresses and the juror questionnaires. A search of the jurors’ names on Google may reveal valuable information about them, and such information could serve as a basis to exercise a peremptory strike or challenge for cause. Where pre-trial publicity has been high or negative, counsel may wish to think about moving to sequester the jury pursuant to Fla. R. Crim. P. 3.370(a) to insulate them from publicity during the trial. Motions to sequester and change venue are left to the discretion of the trial judge, so counsel should be sure to make a good record by filing a thorough written motion in compliance with the rule, and renewing it whenever necessary, prior to and during the trial. The better record counsel can make of the court abusing its discretion, the better chances counsel may have of prevailing on any subsequent appeal.
Jury selection: To state the obvious, jury selection is an extremely important time of the trial. Attorneys may wish to come prepared with a list of the prospective jurors that was requested pursuant to Rule 3.281, and be ready to argue why certain potential jurors should be stricken for cause at the outset. The more jurors that are successfully challenged for cause, the more peremptory strikes can saved for use later on. Attorneys should remember to make as good a record as possible for appeal by stating objections on the record and the reasons for the objections. Objections to the panel should be renewed at the time the panel is selected, and again prior to the time that the panel is sworn. If objections are not made and renewed, an appellate court may find that the jury selection issues have not been preserved. In really high profile cases, jury selection may take days or weeks. In such cases, counsel should ask the court for additional challenges for cause and peremptory strikes. Courts may grant such requests in their discretion.
Post verdict: If the jury renders a guilty verdict, and if there is reason to believe that the verdict is subject to legal challenge, counsel may move to interview the jurors pursuant to Rule 3.575.
Post trial: After trial, counsel may move for a new trial under Rules 3.580 and 3.600. If the evidence sustains a conviction for a lesser offense, a court may, pursuant to Rule 3.620, enter a judgment for the lesser offense.
Bail pending appeal: Where an attorney intends to appeal a conviction, the court may release the defendant pending appeal pursuant to Rule 3.691.
Everyone knows that the wheels of justice turn slowly, but the wait in this case is killing me! (No pun intended in this death penalty case). It has been one month now since United States District Court Judge Jose Martinez ruled that Florida’s death penalty scheme is unconstitutional. (See my previous post dated June 23, 2011). After Judge Martinez issued the Order, the State of Florida, through the Office of the Attorney General, filed a motion asking the Court to reconsider the decision. The Court has yet to rule on the motion. It seems pretty unlikely that the Court will grant the State’s motion. The Court will probably deny the State’s motion, paving the way for the State to appeal the decision to the Eleventh Circuit, as Attorney General Pamela Bondi said will be done in a report dated June 28. Let’s just get the appeal moving already so that the case can make it’s way to the US Supreme Court!
On July 13, 2011, the Fourth DCA issued an opinion in Abdel Odeh v. State, 4D09-994, affirming Odeh’s conviction and sentence for first degree murder. In the opinion, the Court addressed several concepts which are important to criminal appeals: preservation, invited error, fundamental error, and attempts to raise ineffective assistance of counsel for the first time on appeal.
With regard to invited error and fundamental error, at trial, jury was allowed to hear a comment made by a Detective, during the interrogation of Odeh, that Odeh could not legally claim the defense of justifiable use of deadly force. Although the Court agreed that it was error to have allowed the jury to hear the comment, the Court found that the error was invited because he responded to a question on cross examination. Moreover, the Court rejected Odeh’s claim that the error was fundamental because the opinion testimony did not permeate the entire trial. The Court also found that the trial court erred in its jury instructions on the justifiable use of deadly force. However, Court determined that the error, which had not been preserved by a contemporaneous objection, was not fundamental because the State made no use of the trial court’s erroneous instruction. The Court also noted that Odeh’s counsel agreed to the erroneous instructions.
Finally, the Court addressed Odeh’s claim of ineffective assistance of counsel. In so doing, the Court observed the longstanding rule that such claims cannot properly be raised for the first time on appeal unless they are apparent on the face of the record. Because Odeh’s claims were not apparent on the face of the record, the Court declined to reverse Odeh’s conviction on such basis.
For previous posts on preservation and fundamental error, click here. For a discussion on filing motions for postconviction relief in state court as a prerequisite to federal habeas review, click here and here.
Shortly after the verdict, one of Anthony’s lawyers was photographed flipping the bird. That attorney, Cheney Mason, is now the subject of a Florida Bar complaint. To see the photo and read the article, go here.
The Sun Sentinel reports that the Florida Department of Law Enforcement will implement new statewide procedures in an effort to increase the reliability of eyewitness identifications which are made based on police lineups. The new procedures were introduced after the Florida Innocence Commission, which was formed by the Florida Supreme Court to examine the issue of wrongful convictions, determined that about 70 percent of wrongful convictions are the result of mistaken identity. Under the new procedures, police are supposed to advise witnesses that the suspect may or may not be in the lineup, and that the witness need not pick anyone. The police are also supposed to refrain from doing anything which would influence the witness, and to document the identification procedure, including the witness’ response and exact words. Finally, the police are supposed to use someone who is not familiar with the case to conduct the lineup. Although the official FDLE report indicates that police agencies are supposed to be in compliance by November 1, 2011, the report does not discuss whether any specific remedies will be available in cases where police agencies either fail to adopt conforming procedures by the November 1 deadline, or fail to follow the proper statewide standards in individual cases.
The State of Florida is not alone. On July 6, 2011, NPR aired a report discussing changes being introduced in the State of Texas.
Prior to FDLE’s announcement, police agencies across the state implemented their own procedures for lineups. Most criminal defense attorneys know how unreliable eyewitness testimony can be. (For an interesting discussion on that subject, you might want to go to NPR to listen to a story that aired on June 20, 2011). However, perhaps with the introduction of the new statewide standards, eyewitness identification based on police lineups will become more reliable.
Well, by now you have all probably heard that Casey Anthony was sentenced to 1 year incarceration for each count of lying to a police officer, consecutive, which means she was sentenced to a total of 4 years. (The Court also imposed a $1,000 fine and court costs for each count, and the prosecutor stated that the State would be seeking to recover the costs of investigation and prosecution of the case). According to a CNN report, after adding up all the jail credits, it appears that Anthony will be released on July 13, 2011. Even though Anthony’s defense attorneys mentioned the possibility of an appeal of the sentence based on the double jeopardy issue which was raised at the televised hearing, I would be surprised if any appeal will be filed now. If Anthony is going to be released in a week, why waste time with an appeal?
The Court will consider the State’s motion to recover the costs of investigation and prosecution at a later date. Meanwhile, a company named Texas Equusearch is seeking to recover the $112,000 it spent trying to locate Caylee, and Zenaida Gonzalez, otherwise known as “Zanny the Nanny,” has apparently filed an action for defamation against Anthony based on Anthony’s false statements that she left Caylee in her care. Ms. Gonzalez denies ever meeting Anthony. No reports yet on whether the State of Florida will try to pursue perjury charges against Casey Anthony’s mother. Under Florida Statute section 837.02, making a false statement under oath in an official proceeding constitutes either a second or third degree felony. In my personal experience, perjury charges are not often pursued because they are difficult to prove.
Note: In my previous Casey Anthony post, I referred to the felony offenses of providing false information to a police officer under Florida statute section 837.05(2). However, it turns out that in Counts IV through VII, Anthony was only convicted of the misdemeanor offenses under Florida Statute section 837.05(1) which carry the lighter maximum penalty of up to 1 year incarceration.
You may remember that about a month ago, Ryan LeVin was sentenced to house arrest in Broward County after hitting two British businessmen while driving his Porsche in Fort Lauderdale. Well, the Sun Sentinel reports that LeVin is now in custody in the State of Illinois after his parole was revoked for an Illinois offense. He is accused of violating the terms of his Illinois parole by leaving the State without permission, when he came to Florida to answer the charges of vehicular homicide. LeVin said he did not tell his probation officer that he was leaving Illinois because he wanted to post bond in Florida, and planned to return to Illinois to finish his parole there. In revoking his parole, the board was unsympathetic to LeVin’s claims. The length of his incarceration is unknown.
For any criminal attorneys who have some time on their hands while we wait to see how the Court will rule on the State of Florida’s motion to reconsider, I thought you might like to read the Court’s Order on the petition for writ of habeas corpus. You can find it here. A word of warning: the Order is long. The discussion of the constitutionality of the death penalty scheme runs from pages 78-93.
Meanwhile, according to an article posted in the Miami Herald on June 22, 2011, this is the first time a Court has declared the Florida death penalty scheme unconstitutional. If the Court maintains its ruling, and the State of Florida appeals to the Eleventh Circuit, as Attorney General Pam Bondi has stated will likely be done, such an appeal could set the stage for the case to make its way to the United States Supreme Court.