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: August, 2012

Florida’s 5th DCA: George Zimmerman Trial Judge Should Enter Order of Disqualification

Although the Court admitted that the case presented a close call, Florida’s Fifth District Court of Appeal ruled today that the trial judge assigned to George Zimmerman’s criminal case should enter an order of disqualification.  Read the opinion in the case, Zimmerman v. State, No. 5D12-3198, here.  Zimmerman’s Petition for Writ of Prohibition, Appendix, and the State’s Response, can be read by clicking here.  Congratulations to Zimmerman’s defense team.  Criminal appeals and criminal defense lawyers know that the courts rarely grant such petitions.

State v. James Robert Owens, No. 5D11-4257: Florida’s 5th District Court of Appeal Holds That In Moving For Downward Departure Sentence, Criminal Defendants No Longer Have Burden Of Showing That Needed Treatment Is Unavailable In Department of Corrections

On August 24, 2012, Florida’s Fifth District Court of Appeal released an en banc opinion that will no doubt be welcomed by criminal defense and criminal appeals lawyers across the State of Florida.  In State v. James Robert Owens, No. 5D11-4257, the Court expressly receded from previous decisions which had required a criminal defendant, when moving for a downward departure, to show that the needed treatment was not available in DOC.  In so doing, the Court quoted at length a concurring opinion by Judge Warner of the Fourth District Court of Appeal in State v. Hunter, 65 So. 3d 1123, 1125-1126 (Fla. 4th DCA 2011), which was adopted by the Fourth DCA in State v. Chubbuck, 83 So. 3d 918 (Fla. 4th DCA 2012) (en banc).  The Fifth DCA also certified conflict with cases from the First, Second, and Third District Courts of Appeal.

Although this will be a good case to monitor as it goes to the Florida Supreme Court, what should Florida’s criminal defense attorneys do with the latest opinion by the Fifth DCA?  Well, if you’re lucky enough to handle cases that are within the jurisdiction of either the Fourth or Fifth DCA, then you can rest easy knowing that you have one less burden to prove in moving for a downward departure.  Be sure to cite Owens and Hunter/Chubbuck in your motion for downward departure.  If the trial court denies your motion, you will have a good basis for appeal.  If your cases are within the jurisdiction of the First, Second, or Third DCA, you should still file a motion for downward departure where warranted.  In the motion, you should cite the controlling cases out of your DCA, but you can also cite Owens and Hunter/Chubbuck in support of your position.  If the trial court denies your motion, you’ll be in a better position if you decide to appeal.

United States Court of Appeals for the Eleventh Circuit: Odulene Dormescar v. U.S. Attorney General, No. 10-15822, and Anthony John Ponticelli v. Sec’y, Florida Dept. of Corrections, No. 11-1966

The United States Court of Appeals has published a couple of interesting opinions in the last few days.  The first, Odulene Dormescar v. U.S. Attorney General, No. 10-15822, concerns the removal of a person convicted of an aggravated felony.  The opinion is a bit long (31 pages), but if you are a criminal defense lawyer who deals with immigration issues, it’s probably a good idea to take a few minutes and review the opinion.

The  second opinion is also long (over 70 pages), but still quite interesting in that the opinion contains a partial dissent, which is a rarity in the Eleventh Circuit.  In Anthony John Ponticelli v. Sec’y, Florida Dept. of Corrections, No. 11-11966, the Eleventh Circuit affirmed the denial of a petition for writ of habeas corpus for death row inmate Ponticelli.  For those criminal defense and criminal appeals lawyers who handle habeas petitions in death cases, this might be a good opinion to review.  After all, it’s not everyday that you get to read an Eleventh Circuit opinion where at least one of the Judges finds that the Florida Supreme Court misapplied Strickland, and that habeas relief should have been granted.  Judge Martin’s partial dissent begins at page 72.

Finally, for those of you who are interested in following the criminal defense bar’s attempts to challenge S.B. 1960, I have heard that the docket for the case in Florida’s Third District Court of Appeal is 3D12-2034.  The style of the case is David S. Markus v. Hon. Joel H. Brown.

Florida Criminal Defense Lawyers’ Challenges To S.B. 1960 Moving Ahead, and Brief Filed in Ulloa v. CMI, Inc., No. SC11-2291

South Florida’s criminal defense and criminal appeals lawyers who take court-appointed criminal cases and appeals may be interested to know that the case filed by Brent DelGaizo to challenge the constitutionality of S.B. 1960 is moving forward.  On August 7, 2012, Florida’s Fourth District Court of Appeal, located in West Palm Beach, issued an order directing the Chief Judge for the Seventeenth Judicial Circuit (Broward County) to respond to Del Gaizo’s arguments raised in his petition for writ of certiorari.  The response is due August 27, 2012.  To see the docket for DelGaizo v. Chief Judge, Seventeenth Judicial Circuit, case number 4D12-2548, click here.  If the link malfunctions, just go to the 4th DCA’s search page, and enter the case number, 4D12-2548.

The Miami Chapter of the Florida Association of Criminal Defense Lawyers (FACDL-Miami) has likewise filed a challenge to S.B. 1960 in Florida’s Third District Court of Appeal, located in Miami.  Amazingly, an organization of Florida prosecutors has even recently voted in favor of filing an amicus brief in support of FACDL-Miami’s petition to the Third DCA.  This is great news, and only serves to reinforce that the challenges to S.B. 1960 are about more than just money.

I’ll be sure to keep you posted.  To read my previous posts on S.B. 1960, click here, here and here.

Meanwhile, in Ulloa v. CMI, Inc., No. SC11-2291, Ulloa filed his jurisdictional brief today.  To read the brief, click here.  To read my previous post on this case, click here.  Since the case is relatively new, a decision should not be expected for some time.

United States Seeks to Limit Guantanamo Detainees’ Access to Lawyers

Skimming through the news reports today, I came across this article on CNN.com that criminal defense and criminal appeals attorneys might want to read.

According to the article, the U.S. Department of Justice has recently taken the position that only the Government can decide when Guantanamo detainees should have regular access to their attorneys.  At issue is whether a 2008 Supreme Court decision, Boumediene v. Bush, gives federal courts the ultimate power to control habeas petitions from enemy combatants in U.S. military custody.  While pro bono lawyers argue that they should have regular access to their imprisoned clients, even if there is no active habeas challenge pending in court, or any pending charges, the Justice Department disagrees.

The Justice Department acknowledges that it has already started restricting when Guantanamo prisoners can challenge their detention in the United States District Court for the District of Columbia.  However, the Justice Department has proposed even further changes to the current rules governing attorney access.  Under the proposed changes, the Navy base Commander at Guantanamo would have sole veto power over attorney access, as well as access to classified material, including information provided directly by the detainees from interrogations.  Some chilling words from the Government’s pleadings:

The dispute thus before the Court, though important, is quite narrow . . .The only question presented is whether detainees who have neither current nor impending habeas petitions are entitled to” challenge continued access to counsel. The answer to that question is ‘no.’

If this language is not scary enough, the Justice Department has argued that although it does not seek to restrict lawyers who have an active legal appeal, the rights of detainees shrink once they have filed their first habeas challenge.  According to the report, the military wants lawyers to agree to the new conditions in order to have continued access to their clients and to any classified information the military would deem to release.  Wow.

The Judge to whom all the Guantamo cases are assigned, Chief Judge Royce Lamberth of will preside over a hearing on the issue on August 17, 2012.


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