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: October, 2011

Florida Supreme Court Opinions Released October 27, 2011:Jury Instruction Errors, An Evidentiary Hearing on Possible Brady and Giglio Violations, and No More Filings Allowed for a Frequent Filer

This week has just flown by.  Since I am a bit pressed for time, I decided to make a quick report of a few of the opinions released by the Florida Supreme Court on October 27, 2011.

1.)  The Court reversed six cases based on jury instruction issues.  In each of the cases, the Court remanded the cases back to the District Courts of Appeal for consideration and application of the recent opinion of State v. Montgomery, 39 So. 3d 252 (Fla. 2010) (holding that because Montgomery, who had been convicted of second-degree murder, was entitled to an accurate jury instruction on the necessarily lesser included offense of manslaughter by act, the use of the then-standard jury instruction on manslaughter by act constituted fundamental reversible error because it erroneously required the jury to find that Montgomery intentionally caused the death of the victim).  The cases reversed include Zeigler v. State, No. SC09-2082, Valdes-Pino v. State, No. SC10-63, Burgos v. State, No. SC10-78, Bonilla v. State, No. SC10-141, Solano v. State, No. SC10-1350, and Francis v. State, No. SC10-1881.

2.) In Mungin v. State, No. SC09-2018, a death penalty case, the Court reversed a trial court’s order which had summarily denied a successive motion for postconviction relief.  In a 22 page opinion, the Court remanded Mungin’s Giglio and Brady claims back to the postconviction court for an evidentiary hearing.  Although the opinion is fact driven, it is still worth reading for the Court’s discussion and application of Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972).

3.) Finally, in James v. Tucker, No. SC11-745, the Court banned Mr. James from filing any more pleadings attacking his conviction unless they are signed by a member in good standing of the Florida Bar.  Apparently, Mr. James has become what some criminal defense attorneys refer to as a “frequent filer,” and the Court said “enough is enough.”

Shelton update: Florida Supreme Court Accepts Jurisidiction to Review Constitutionality of Florida’s Drug Possession Statute, Section 893.13, in State v. Luke Jarrod Adkins, SC11-1878

A quick update on the hot topic that began this last July: Shelton and the constitutionality of Florida’s drug possession statute.  On October 12, 2011, the Florida Supreme Court issued an Order indicating that it will accept jurisdiction to review the constitutionality of Florida’s Drug Possession statute, section 893.13.  As practically every Florida criminal defense attorney knows by now, the Shelton opinion held that the statute is unconstitutional.  Initial, Answer and Reply Briefs are due in the Supreme Court by November 2, November 16, and November 23, 2011, and oral argument is set for December 8, 2011.  You can see the Florida Supreme Court docket for State v. Luke Jarrod Adkins, SC 11-1878, here.  You can see my previous posts on the issue here, here, here, and here.

Florida’s Fourth DCA Reverses Conviction for Second Degree Murder, Addresses Stand Your Ground and Duty to Retreat: Dorsey v. State, 4D09-1940

Florida’s criminal defense attorneys know that jury instructions are often the basis for an appeal and reversal.  Dorsey v. State, 4D09-1940, issued on October 18, 2011, is the latest jury instruction opinion issued by the Fourth DCA.

Dorsey had been convicted of second degree murder and weapons charges after he shot and killed two individuals in a fight at a keg party.  Concluding that the evidence would only support a conviction for manslaughter, the Court noted that it would ordinarily reverse and remand for the entry of a judgment of conviction for manslaughter.  However, based on an error in the jury instructions, a retrial on the charge of manslaughter was required.

As can be seen from the opinion, the Court was presented with the issue of how Florida’s Stand Your Ground statute should apply in conjunction with the jury instruction on justifiable use of deadly force when the defendant is engaged in an unlawful activity at the time of the use of deadly force.  In Dorsey’s case, because he was a convicted felon in possession of a firearm at the time he shot the two victims, defense counsel requested that the Court not instruct the jury on today’s standard instruction based on the Stand Your Ground statute.  The trial court disagreed, and defense counsel then requested that the court instruct the jury based on the pre-2005 standard jury instruction on the justifiable use of deadly force.  The trial court refused the request, and gave the standard jury instructions.  In finding that the trial court erred, the Court noted that today’s standard jury instructions simply did not  address the  situation where a defendant is engaged in unlawful activity at the time the deadly force is used.  As a result, the Court held that based on the unique circumstances of the case, the trial court should have given today’s standard jury instruction based on the Stand Your Ground law, as well as the pre-2005 instruction because the pre-2005 instruction properly addressed the duty to retreat in situations where the defendant was engaged in unlawful activity.  In the alternative, the trial court could have simply omitted today’s instruction based on the Stand Your Ground statute, and instructed the jury on the pre-2005  instruction alone.  The Court also reaffirmed the principle that where deadly force is used while a defendant is engaged in unlawful activity, or is attacked at a place where he did not have the right to be, the common law duty to retreat still applies.

Some Encouraging News for Florida Criminal Defense Attorneys

As I was reading the latest edition of the Florida Bar News, dated October 15, 2011, I came across two points of encouraging news that I wanted to pass along on this rainy day in South Florida.

The first report states that the Florida Bar’s Professional Ethics Committee has voted to consider issuing an advisory opinion saying that it would be unethical for prosecutors to ask, as part of a plea bargain, that criminal defendants waive future claims of prosecutorial misconduct, and for criminal defense attorneys to advise their clients to waive any claim of ineffective assistance of counsel.  From my experience, the practice of requiring waivers as part of the plea bargaining process is more prevalent in Federal court than in State court.  While I served as a Law Clerk in the Southern District of Florida, I was amazed to see that so many plea offers contained waivers of such basic rights to due process.  While I am glad to see that the issue is being given serious consideration, I find it really sad that the practice of requiring Florida’s criminal defendants to waive some of their basic rights to due process can only be stopped by the issuance of a formal ethics opinion.

In a second report, the economics behind Florida’s death penalty are discussed.  According to the Florida legislators who back HB 4051, it is actually more expensive to carry out the death penalty than to house prisoners for life.  If passed, HB 4051 would eliminate Florida’s death penalty.  (Note: a previous Senate Bill, SB 1898, died in committee in May of 2011).

Finally, in a third report, the Florida Bar’s Criminal Law Section has decided to begin a review of Florida’s death penalty procedures.   Those who read my blog are familiar with my thoughts on the issue, so I won’t say anything more than “It’s about time!”  Since I’m a skeptic when it comes to government, I’m not going to sit here and expect major changes overnight, but at least someone in Tallahassee, apart from the Florida Supreme Court dissenting Justices, is starting to take a look at the serious problems with Florida’s death penalty procedures.

United States Court of Appeals for the Eleventh Circuit to Rehear Cases Relating to the Fair Sentencing Act en Banc

In an important move, the United States Court of Appeals for the Eleventh Circuit issued two Orders on October 4, 2011, indicating that it will rehear two federal drug cases, United States v. Carmelina Vera Rojas, No. 10-14662, and United States v. Charles Levern Hudson, No. 10-14428, en banc.

The cases concern the application of the Fair Sentencing Act to federal drug offenses.  In the original Rojas opinion, found at 645 F.3d 1234 (11th Cir. 2011), the Eleventh Circuit held that the Fair Sentencing Act of 2010 (“FSA”), PL111-220, applies to defendants who committed crack cocaine offenses before August 3, 2010, the date of its enactment, but who are sentenced thereafter.  In the original Hudson opinion, the Court reaffirmed its holding that the FSA does not apply retroactively to offenses that were committed before the effective date of the Act.

United States Attorney General Eric Holder has reportedly flip-flopped on his position regarding application of the FSA.  At one time, he had instructed Federal prosecutors to argue that the revised FSA’s minimum mandatory sentences, which had been designed to alleviate sentencing disparity between offenses relating to crack and powder cocaine, was not applicable to defendants’ cases if they committed their offenses before the day the law went into effect, August 3, 2010, even if they had not yet been sentenced.   Then, in July of 2011, Holder issued a statement indicating that the FSA should be applied to all sentencings that occured on or after August 3, 2010, regardless of when the criminal episode took place.

Caught in the middle of this flip-flop are Carmelina Vera Rojas and Charles Levern Hudson.  As noted in the original opinion, 645 F.3d 1234, Rojas pleaded guilty to one count of conspiring to possess with the intent to distribute 50 grams or more of cocaine base (crack cocaine), and two counts of distributing 5 grams or more of cocaine base (crack cocaine).  Her case was reportedly set for sentencing on the day that the FSA was signed, but the District Court ordered legal briefing on whether the FSA would apply to her case.  Ultimately,  the District Court agreed with the prosecutors that the FSA did not apply, and sentenced her to 10 years in prison.  Had the District Court applied the FSA, Rojas could have been sentenced to 5 years.  As for Hudson, the Eleventh Circuit affirmed his sentence, which was based on the higher statutory mandatory minimums that were in effect in 2007, rather than the lower sentences under the FSA.  In short, neither Rojas nor Hudson were permitted to enjoy the benefits that the FSA was intended to give.

One final note: after the Rojas opinion originally appeared on the Eleventh Circuit website, it strangely disappeared, then reappeared again.  If you have time and want to read about the disappearance of reappearance of the opinion on the Eleventh Circuit site, click here.

Florida criminal defense attorneys who handle drug cases in Federal court will have to keep a close eye on these cases.


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