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: July, 2012

Some Good Opinions Released by Florida’s 4th DCA on July 25, 2012

Criminal defense and appeals attorneys will be glad to see a couple of good opinions released by the 4th DCA this week.

The most noteworthy case is probably Bruce v. State, 4D09-2620, where the Court reversed a conviction for 3 counts of involuntary manslaughter because the police obtained Bruce’s confession in violation of his due process rights as guaranteed by the Florida Constitution (article I, section 9).  The opinion contains a good discussion of due process rights of criminal suspects under both the United States and Florida Constitutions with regard to interrogations, Miranda, and law enforcement’s duties to notify a suspect that his attorney is at the station and available to speak with him.  The lesson of this case: because  the Florida Constitution may be construed to provide greater protections to criminal suspects and defendants than the United States Constitution, don’t forget to invoke the Florida Constitution the next time you draft a motion to suppress.

The next case is Petit v. State, 4D09-4253, where, on motion for clarification, the Court affirmed the admission into evidence at trial (1) a witness’ prior testimony which had been given at a bond hearing; and (2) tape recordings of four 911 calls between two witnesses and 911 dispatchers.  With regard to the bond hearing testimony, the Court held that the witness’ prior bond hearing testimony was admissible at trial because the witness was unavailable to testify, and because the bond hearing provided Petit with the opportunity for cross examination.  Slip op., pgs. 2-8.  Next, the Court held that the 911 calls were admissible because they  were non-testimonial within the meaning of Crawford v. Washington, 541 U.S. 36 (2004), Davis v. Washington, 547 U.S. 813 (2006), and Michigan v. Bryant, 131 S.Ct. 1143, –U.S.– (2011).  Slip op., pgs. 8-11.

Although the case is instructive because it contains a lengthy analysis of Crawford, the opinion appears to help the State more than the defense.  This case has potential application to many criminal cases, but domestic violence and battery cases may be the most common.  In deciding that the witness’ prior bond hearing testimony was admissible at trial, the Court reasoned that the witness was unavailable.  However, the witness was not just unavailable–he was actually refusing to testify.  The Court acknowledged as much, but then stated, almost casually, that as long as the State made a “good faith effort” to procure the witness for trial, then that was enough.  Slip op., pg. 4 (citing State v. Johnson, 982 So. 2d 672, 681 (Fla. 2008).  Based on this part of the opinion, it seems like the State will have no problem going forward with cases that involve reluctant witnesses.

The last opinion, Althouse v. Palm Beach County Sheriff’s Office, 4D10-2221, is a good case for criminal defense attorneys because the Court held that the Sheriff’s Office would be required to pay litigation costs incurred by Althouse as a result of his filing a public records request seeking information as to the recruitment and use of confidential informants.  The next time you decide to file a public records request with the Sheriff’s Office, hopefully they will comply in a timely manner.  But if they jerk you around like the Sheriff’s Office did to Mr. Althouse, be sure to have this case on hand!

Case to Watch in the 4th DCA: Brent Del Gaizo v. Hon. Peter M. Weinstein et al, 4D12-2548

South Florida criminal defense lawyers who are interested in Florida’s latest legislative reforms to payment for court appointed counsel, otherwise known as S.B. 1960, might like to know that the Broward and Miami Dade Associations of Criminal Defense Lawyers have filed a petition seeking to challenge the constitutionality of S.B. 1960.

According to the petition, Petitioners ask the Fourth DCA to (1) issue a writ of certiorari quashing the 17th Judicial Circuit’s Administrative Order number 2012-45-Gen, which appointed Judge Ilona Holmes as the only Judge to hear requests by General Registry attorneys to exceed the statutory caps; (2) issue a writ of quo warranto determining that Melodee Smith and other members of the Limited Registry are ineligible to hold the office of court-appointed counsel due to the illegality of the Florida statute under which the Limited Registry was established; and, (3) issue a writ of prohibition prohibiting the Seventeenth Judicial Circuit’s Clerk of Court, Howard Forman, from appointing attorneys from the Limited Registry when private court-appointed counsel is required.

This seems like an interesting case to watch.  For a link to the case, DelGaizo v. Hon. Peter M. Weinstein et al, No. 4D12-2548, click here.

Funny Friday Reading from the Eleventh Circuit–But Not That Funny

I’ve been a little depressed after the Florida Supreme Court issued its opinion in Adkins the other day (I bet lots of other criminal defense and criminal appeals lawyers are too), so I thought I’d look for something to cheer me up.  Well, I thought I found it when I came across this opinion recently released from the Eleventh Circuit.  Butler v. Sheriff of Palm Beach County, No. 11-13933, is a case that arose right in our own backyard-South Florida.  The opinion starts out pretty comical:

In one of his ballads, Jim Croce warned that there are four things that you
just don’t do: “You don’t tug on Superman’s cape/ You don’t spit into the wind/
You don’t pull the mask off that old Lone Ranger/ And you don’t mess around
with Jim.” He could have added a 1 fifth warning to that list: “And you don’t let a
pistol-packing mother catch you naked in her daughter’s closet.”

After having a small laugh, I continued reading.  The opinion continued:

It all started with a phone call.2 Nineteen-year-old Uzuri Collier called
Larry Butler, who was of a similar age, and invited him to her house. Butler
responded to the invitation the way most young men over the age of consent
would have—he went. Once Butler was at Uzuri’s house, he and she consented to
watch television for a while. Then they consented to do what young couples alone
in a house have been consenting to do since the memory of man (and woman)
runneth not to the contrary. The record does not disclose how long these two
young people had known each other in the dictionary sense, but that afternoon in
Uzuri’s bedroom they also knew each other in the biblical sense. While doing so,
and while clothed in the manner that is customary in such matters, which is to say
not at all, they heard someone coming into the house.

The record does not tell us how the timing worked out as unfortunately as it
did. It may be that the two young people simply lost track of time, which would
be understandable given the circumstances. Or it may be that Uzuri’s mother,
Dorethea Collier, left work early that day. However it happened, Collier came
close to catching the couple coupling. So close that when they heard her, Butler
had only enough time to dash into the bedroom closet wearing nothing but a look
of surprise.

After reading the rest of the opinion, I decided that the case is not that funny.  After all, a young man almost got shot.  Why the need to start the opinion quoting Jim Croce?  And how is it that the Eleventh Circuit found that Collier, a corrections officer at the Eagle Academy, which is a “bootcampfacility for minors” run by the Palm Beach County Sheriff’s Office, was NOT acting under color of State law with these facts?

She yelled at him and punched him one time. Then Collier picked up her utility belt, put it
back on, and drew her gun. She told Butler that if he moved or did not follow her
commands, she would shoot him.

Butler tried to explain that Uzuri had invited him to the house, but Collier
insisted that he must have broken in. She had the still-naked Butler turn around,
she handcuffed him, and she made him get down on his knees. After staying there
“for a prolonged period,” Butler pleaded with Collier that he could not maintain
that position any longer. Collier responded by telling him to bend over or she
would shoot him. She “made numerous threats against Butler, [telling him] that
she would ‘kill him’ if he did not obey her commands.”
While still holding Butler at gunpoint, Collier called her husband and told
him to come home immediately. After that, she called a supervisor at Eagle
Academy and asked what charges she could bring against Butler for entering the
house and “engaging in sexual relations with her daughter.” The supervisor told
Collier that if Butler had entered without permission he could be charged with
trespassing and rape, but that if he had been invited in, she would have to let him
go. About this time, Collier’s husband arrived at the house, and he “also assaulted
Butler.” In what manner, we are not told.
Collier continued to hold Butler at gunpoint, threatening to kill him if he did
not follow orders. After Collier’s husband “inquired further” about the naked
man’s identity and determined who he was, Butler was allowed to get dressed and
leave, although Collier kept the gun pointed at him while he was dressing. One
can assume that it did not take Butler long to get dressed and get out, but before he
had time to leave Collier “warned him about the consequences of filing charges or
even ‘thinking about’ reporting the incident.” She told Butler that if he reported
what had happened, she “would submit a report to discredit him and would engage
in some ‘creative writing’ if necessary to justify the filing of charges against him
for trespassing on the property.”

State v. Adkins, No. SC11-1878: Drug Possession Statute, Section 893.13 Constitutional

Well, I’ve finished reading the Florida Supreme Court opinion in State v. Adkins, No. Sc11-1878, and my initial opinion has not changed: disappointed, but not surprised.  I suspect that a lot of other criminal defense and appellate lawyers in South Florida are feeling the same way too.

The rationale for the majority’s holding is not exactly convincing.  In support of its holding that the Florida Comprehensive Drug Abuse Prevention and Control Act (“the Act”) is constitutional, the Court deferred to the Legislature’s broad authority the define the elements of a crime.  Slip op., pgs. 7-8.   Next, the Court cited several decisions from the United States Supreme Court, including United States v. Balint, 258 U.S. 250 (1922), Staples v. United States, 511 U.S. 600 (1994), and United States v. Freed, 401 U.S. 601 (1971) for the proposition that the legislature has the authority to define the elements of a crime for the public welfare.  Slip op., pgs. 8-16.  In support of its conclusion that the omission of a mens rea element did not violate due process, the Court reasoned that (1) the State is still required to prove that a defendant was engaged in the affirmative act of selling, manufacturing, possessing, or delivering a controlled substance; (2) an innocent person can rely on the affirmative defense as contained in the Act; (3) the Act and section 893.13 are rationally related to the Legislature’s goal of controlling drugs with a high potential for abuse; (4) prohibiting the sale, manufacture, delivery, or possession of controlled substances does not impinge on any constitutionally protected rights; (5) common sense and experience support a conclusion that possession without awareness of the illicit nature of the substance is highly unusual; and, (6) the Legislature’s decision to treat lack of knowledge of the illicit nature of the substance as an affirmative defense does not violate due process.  Slip op., pgs. 16-19.  The Court also analogized the affirmative defense to the New York case of People v. Patterson, 347 N.E.2d 898 (N.Y. 1976).  Slip. op., pgs. 19-22.

After reading the majority opinion, I wondered: why did the Court not cite more persuasive, or even more contemporary authority in support of its conclusion that the substitution of the affirmative defense for the mens rea element renders the Act constitutional?  Then, reading the first lines of Justice Pariente’s concurring opinion, I realized the answer: there is nothing more contemporary for the Court to cite!  As noted by Pariente, Although 48 other States have chosen to require the prosecution to prove mens rea as an element of a drug offense, the Florida Legislature opted to eliminate the mens rea element.  Slip op., pg. 23, (Pariente , J., concurring).  Pariente does an adequate job of pointing out some flaws in the majority opinion, and her concurring opinion reads more like a dissent than a concurrence.  But the fact that she concurs in the result is surprising, given number previous dissenting opinions she has authored in criminal cases.  The reasons for her concurrence is also surprising: (1) the Act still requires the State to prove that a defendant had knowledge of the presence of a controlled substance; and, (2) the Act allows a defendant to raise the affirmative defense of lack of knowledge.  Slip op., pg. 24 (Pariente, J., concurring).

After reading Justice Perry’s dissent, I am convinced that Justice Pariente and the majority both failed to adequately recognize two key concepts.  First, the existence of the mens rea element is the cornerstone of American criminal jurisprudence.  Slip  op., pgs. 25, 32-34.  (Perry, J., dissenting).  Second, the elimination of the mens rea element, the substitution of the affirmative defense, and the Florida jury instructions which permit the jury to presume that a defendant had knowledge of the illicit nature of the substance based on mere possession, all combine together to strip people charged with drug offenses of their constitutional presumption of innocence.

What comes next?  Well, for Adkins and the other co-defendants, they go back to square one and get back on the trial docket.  But other people who already stand convicted of drug offenses might wish to consider filing petitions for writ of habeas corpus in state, then federal courts.  Case in point: Shelton v. Sec’y, Dept. of Corr., 803 F. Supp. 2d 1289 (M.D. Fla. 2011). 

State v. Adkins, SC11-1878: Florida’s Drug Possession Statute Upheld

I haven’t had time to read the opinion, as it was just released yesterday, July 12, 2012.  The only thing I can say right now is I’m disappointed, but not at all surprised.  Check out the opinion at the Florida Supreme Court website, http://www.floridasupremecourt.org, or by clicking here.


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