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: February, 2012

Florida Supreme Court Issues Opinions on Fellow Officer Rule, Administrative Suspension of Drivers Licenses in DUI cases, and Certiorari Review: State v. Bowers, No. SC09-1971, and Nader v. Florida Dep’t of Highway Safety and Motor Vehicles, No. SC09-1533

Last week, the Florida Supreme Court issued two opinions which are important for different reasons.  The first, State v. Bowers, No. SC09-1971, is a real victory for criminal defense lawyers all over the State.  The second, Nader v. Florida Dep’t of Highway Safety and Motor Vehicles, No. SC09-1533, has important implications for appellate lawyers, both criminal and civil.

If you handle a lot of suppression hearings in traffic stop cases, you’re probably familiar with the fact that sometimes, the officer who stopped your client may not appear for the hearing.  If that happened, prosecutors might previously have relied on the fellow officer rule to elicit testimony from another officer who was on scene to testify at the hearing as to the basis for the traffic stop.  (I remember having to do that fairly often when I was a prosecutor in Broward.)  Now, as a result of State v. Bowers, prosecutors won’t be permitted to use the fellow officer rule as a way to circumvent hearsay rules in suppression hearings anymore.  It’s not a difficult or long opinion to read, so I won’t bother to rehash it here.  The bulk of the opinion focuses on the rationale underlying the fellow officer rule, as well as the proper purpose of the rule.

Attorneys who handle criminal appeals should take a minute to read Justice Lewis’ dissent in Bowers.  In my opinion, he makes a valid point: that the Second District Court of Appeal erred by dispensing with the applicable rules of procedure, and granted certiorari review in Bowers merely because it disagreed with the Fourth District Court of Appeal’s Ferrer opinion.  Justice Lewis stated:

The decision below is the equivalent of a canary in a coal mine, marking the beginning of the end of the constitutionally mandated limitations imposed on the jurisdiction of our district courts.  As discussed in my dissent to this Court‟s majority opinion in Nader v. Florida Department of Highway Safety and Motor Vehicles, No. SC09-1533 (Fla. Feb. 23, 2012), this case is an example of district courts doing precisely what the majority in Nader cautions against: “grant[ing] relief merely because [the district court] disagrees with the precedent from another district court.” Nader, slip op. at 22.  Here, the Second District acknowledges its disagreement with another district court, using that disagreement as its sole basis for granting second-tier certiorari review.  See Bowers, 23 So. 3d at 771 (“We recognize that by relying on [Ferrer v. State, 785 So. 2d 709 (Fla. 4th DCA 2001)], the circuit court applied existing precedent from another district.  Nevertheless, we grant certiorari relief on the basis that Ferrer misapplied the fellow officer rule and should be rejected.  See Dep’t of Highway Safety & Motor Vehicles v. Nader, 4 So. 3d 705 (Fla. 2d DCA 2009) (emphasis supplied).  This case, like Nader, “will destabilize Florida’s delicate judicial ladder, opening the flood gates of second appeals to our already overworked and overburdened district courts of appeal as described by those appellate courts.”  Nader, slip op. at 29 (Lewis, J., dissenting).

Bowers, SC09-1971, slip op. at pg. 15-16 (Lewis, J., dissenting).  Justice Lewis also complains that the Bowers majority failed to recognize such jurisdictional issue.

Don’t get me wrong.  I agree with the overall result of Bowers: that the fellow officer rule should not be used to circumvent hearsay rules at suppression hearings where the basis for the initial traffic stop is at issue (as opposed to probable cause for the subsequent arrest).  However, I feel just as strongly that the rules of procedure should not be disregarded by any court for mere political reasons.

Nader v. Florida Dep’t of Highway Safety and Motor Vehicles, No. SC09-1533, the opinion to which Justice Lewis refers, was issued the same day as Bowers, and has important implications for lawyers who handle appeals.  In Nader, the Court answered two certified questions:



Nader, SC09-1533, slip op. at pg. 2.  The Court answered the first question in the negative (ie, the Court held that the Department properly suspended Nader’s driver’s license because there was no violation of the implied consent law), but answered the second question in the affirmative (ie, the Court held that the Second DCA properly granted certiorari review).

If you handle a lot of DUI cases or administrative suspension cases, you should take a few minutes to read the first portion of Nader, as the Court recites many of the statutory provisions relating to the implied consent warning, as well as the administrative suspension of a driver’s license in refusal cases.  However, appellate attorneys, both criminal and civil, should read the second half of Nader, as the Court discusses various aspects of certiorari review.  As with the Nader opinion, Justice Lewis again criticizes the majority with a strong dissent on the issue of second-tier certiorari review.

Florida Supreme Court Still Hasn’t Issued an Opinion in State v. Adkins, No. SC11-1878 (Constitutionality of Florida’s Drug Possession Statute)

For those of you who are waiting on the Florida Supreme Court to issue an opinion in the case involving the constitutionality of Florida section 893.13 (the drug possession statute), I just wanted to let you know that the Court has yet to issue an opinion.  Oral argument was held in December, and still no word.  The docket for State v. Adkins, No. SC11- 1878 can be viewed here.

United States Supreme Court Affirms Removal of Asian Husband and Wife, Lawful Permanent Residents Since 1984, After They Are Convicted of Filing False Tax Returns: Kawashima v. Holder, No. 10-577

Now that the Mardi Gras season is over, the federal criminal defense and immigration defense lawyers in Palm Beach, Broward, and Miami Dade county may want to take a few moments moment to read a newly issued opinion from the United States Supreme Court: Kawashima v. Holder, No. 10-577.  On February 21, 2012, the Court affirmed the deportation and removal of Akio and Fusako Kawashima, natives and citizens of Japan who were lawful permanent residents of the United States since June 21, 1984.  According to the opinion, in 1997, Mr. Kawashima pleaded guilty to one count of willfully making and subscribing a false tax return in violation of 26 U.S.C. § 7206(1), and Mrs. Kawashima pleaded guilty to one count of aiding and assisting in the preparation of a false tax return in violation of 26 U.S.C. § 7206(2).  After  framing the issue as “whether aliens who commit certain federal tax crimes are subject to deportation as aliens who have been convicted of an aggravated felony,” the Court held that “violations of 26 U. S. C. §§ 7206(1) and (2) are crimes ‘involv[ing] fraud or deceit’ under 8 U.S.C. § 1101(a)(43)(M)(i) and are therefore aggravated felonies as that term is defined in the Immigration and Nationality Act, 8 U. S. C. § 1101 et seq., when the loss to the Government exceeds $10,000.”

Justice Thomas delivered the majority opinion of the Court, and was joined by the other conservative members of the Court, Chief Justice Roberts, and Justices Scalia, Kennedy, Alito, and Sotomayor.  Although the majority opinion is a rather short 11 pages, be warned: the writing is a dry, statutory construction discussion of several  tax and immigration sections, including 26 U.S.C. §§ 7206(1), (2), and 8 U.S.C. §§ 1101(a)(43)(M)(i) and 1227(a)(2)(A)(iii) of the Immigration and Nationality Act.

As with most Supreme Court opinions, the dissenting opinion is once again the most interesting part to read.  While Justices Ginsburg, Breyer, and Kagan also undertake a statutory-construction discussion, the critical tone in which the dissenters point out the flaws of the majority opinion cannot be mistaken.  Ordinarily, I would summarize the points in the dissenting opinion for you, but in this case, Justice Ginsburg’s writing is so persuasive, that I think that you really should take a few moments and read it for yourself.

On a side note, I am interested to see how much media attention, if any, the Kawashima opinion will receive.  Immigration is always a hot-button issue in American politics, but I suspect that this case will attract little, if any attention.   After all, it’s a boring tax and immigration case, right?  If any of you are basketball fans out there, you probably know of some of the racial comments that have been made about the New York Knicks’ Jeremy Lin.  And if you read the article that I read on CNN this morning, you might also know that for some reason, racism against Asians appears to be more socially acceptable than racism against other minority groups.  Saturday Night Live addressed that topic nicely, as you’ll see if you read the article yourself.  I suspect that in light of today’s culture, nobody will care much at all about the fact that Mr. and Mrs. Kawashima are going to be deported because they are Asian.  I hope that’s not the case.  I hope that people instead think about what really happened here: Mr. and Mrs. Kawashima, lawful permanent residents of the U.S. since 1984, made the unfortunate choice of filing false tax returns.  And now they are being deported?

Congratulations to Judge Adalberto Jordan on his Confirmation to the 11th Circuit

It’s been a busy morning, but before the day gets away from me, I wanted to pass along that congratulations are in order for the Southern District’s Judge Adalberto Jordan for his Senate confirmation to serve on the United States Court of Appeals for the Eleventh Circuit.  According to the Miami Herald, Judge Jordan is the first Cuban-born Judge to sit on the 11th Circuit.  If you have a stomach for the political wrangling behind his confirmation, you can read an article from the Miami Herald here.

February 16 and 17, 2012: National Task Force to Hold Hearings in Miami On the Restoration of Rights and Status After Conviction

I’ve previously discussed some of the difficulties convicted felons face when trying to restore their civil rights and reintegrate into their community.  (See my previous post here.  Well, as a member of the Florida Association of Criminal Defense Lawyers, I’ve received notice that there is going to be an important hearing in Miami, Florida, on February 16 and 17, 2012.  If you are a South Florida criminal defense lawyer who does any work in the area of restoration of civil rights, you may wish to attend.

The press release I received states,

National Task Force to Hold Hearings in Miami

On the Restoration of Rights and Status After Conviction


Washington, DC­ (February 14, 2012) – With more than 65 million Americans possessing a criminal record, the consequences of conviction – specific legal barriers, generalized discrimination, and social stigma – have become more numerous and severe, more public, and more permanent. These restrictions affect jobs and licenses, housing, public benefits, judicial rights, parental rights, interstate travel, and even volunteer opportunities. Moreover, the legal mechanisms relied on in the past to restore rights and status for formerly convicted individuals have atrophied or become ineffective, with the result that a significant percentage of the American public is permanently consigned to second class citizenship.


The National Association of Criminal Defense Lawyers’ (NACDL) Task Force on Restoration of Rights and Status After Conviction will hold its second hearing to undertake an inquiry into how legal mechanisms for relief from the collateral consequences of conviction are actually working, in state and federal systems on Thursday and Friday, February 16-17, 2012, in Miami, Florida.


The Task Force’s inaugural hearing was held in Chicago, Illinois, Oct. 20 and 21, 2011. Witnesses shared a range of personal and professional experiences, perspectives and expertise on the important practical issues surrounding barriers to re-entry and the collateral consequences of a criminal record. Witnesses included Judge Paul Biebel, Presiding Judge, Cook County Circuit Court, Criminal Division, U.S. Congressman Danny Davis and John Schomberg, General Counsel, Office of the Governor of Illinois. Illinois has been working diligently to ensure that clemency applications are reviewed as timely as possible, creating the possibility for individuals to live without the burden of a conviction on their record.


The approximately two dozen witnesses in Miami will include representatives from community organizations, defense lawyers, researchers, civil rights advocates and treatment providers, as well as invidivudals with convictions who themselves confronted barriers to re-entry.   The Task Force is particularly interested in Florida due to their recent changes in clemency rules and subsequent backlog of applications. 


A schedule and witness list follows this message.


WHEN:          Thursday, February 16, from 9 a.m. to 5:30 p.m. and Friday, Friday, February 17,          9:30 a.m. to 2:15 p.m.

WHERE:       Carlton Fields

Miami Tower

100 S.E. Second Street

Suite 4200 (42nd Floor)

Miami, FL 33131-2113


If you are interested in attending part or all of these hearings, please contact NACDL’s State Legislative Affairs Director Angelyn C. Frazer at afrazer@nacdl.org or at (202) 213-9302 (mobile) by the close of business on Wednesday Feb. 15, 2012.

Contact: Ivan Dominguez, Deputy Director of Public Affairs & Communications, (202) 465-7662 or idominguez@nacdl.org.


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