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: September, 2012

Were These Opinions Written by the Florida Supreme Court or the United States Court of Appeals for the Eleventh Circuit?

Is it just me, or has anybody else out there noticed that the Florida Supreme Court’s opinions are reading more like those issued by the Eleventh Circuit?  Not only have the Florida Supreme Court opinions been getting longer and longer, but many are being issued without any dissents by the Justices who are known to most often dissent.  For example, out of the 9 opinions released in criminal appeals since September 13, 2012: (1) two opinions are more than 80 pages long; (2) two opinions are approximately 40 pages long; (3) four of the opinions are signed by all 7 Justices; and, (4) only 1 opinion had even a partial dissent, and that dissent was written by Chief Justice Polston, rather than the Court’s usual dissenters in criminal cases.  Makes you wonder . .  .

Two of the Court’s recent opinions caught my attention.  First, in Reynolds v. State, SC10-1602, the Court affirmed the trial court’s denial of a Rule 3.851 motion for postconviction relief and petition for writ of habeas corpus in a death penalty case notwithstanding the fact that one of the jurors fell asleep during the trial on several occasions.  In the court’s 82 page opinion, the Court held that the sleeping juror did not entitle Reynolds to postconviction relief because the trial court brought the matter to the parties’ attention, and defense counsel made the strategic decision to leave the sleeping juror on the panel.  I guess the lesson here is an obvious one:  if a juror falls asleep during trial, defense counsel should probably ask to have the juror removed!  The sleeping juror is discussed at pages 34-38 of the opinion.

Next, in Douglas v. Tucker, SC10-1725, the Court again affirmed the trial court’s denial of a Rule 3.851 motion for postconviction relief and petition for writ of habeas corpus in another death penalty case notwithstanding defense counsel’s failure to present mental health evidence during the penalty phase of the trial.  Although the Court found that counsel performed deficiently under Strickland v. Washington, 466 U.S. 668 (1984), the Court nevertheless determined that Douglas suffered no prejudice because had counsel presented evidence of his mental health, the jury would have heard about Douglas’ antisocial tendencies.  At least Justice Lewis had the courage to express his concerns, albeit in a concurring opinion.  Justice Lewis’ concurrence can be found at pages 42-47.

Florida Supreme Court Delays Mandatory E-Filing, And Courts Issuing Numerous Opinions in Aftermath of Shelton and Adkins

Mandatory e-filing in Florida’s courts is being delayed.  Surprising, I know.  Check out the order here. Too bad the State of Florida can’t just buy the CM/ECF system that the Federal courts use.  Then again, that would just be too easy.

As I reviewed the websites for Florida’s District Courts of Appeal this week, I noticed that a good number of opinions are being issued in the wake of State v. Adkins, 37 Fla. L. Weekly S449 (Fla. July 12, 2012).  For example, the Fourth DCA issued a slew of opinions denying Rule 3.850 motions for post-conviction relief, while the First and Second DCA reversed several cases which had been dismissed based on Shelton v. Secretary, Department of Corrections, 802 F. Supp. 2d 1289 (M.D. Fla. 2011).  Note: in Shelton v. Secretary, Dept. of Corrections, No. 11-13515, 2012 WL 3641008 (11th Cir. Aug. 24, 2012), the United States Court of Appeals for the Eleventh Circuit reversed the District Court’s grant of federal habeas relief.  You can read my previous post on the Eleventh Circuit opinion here.

For those criminal defense and criminal appeals attorneys who are monitoring the Padilla retroactivity issue, in Litchmore v. State, No. 2D12-800, the Second DCA certified a question of great public importance to the Florida Supreme Court as to the retroactivity of Padilla v. Kentucky, — U.S. —, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), in post-conviction proceedings.  The issue remains pending in the Florida Supreme Court.  You can search the docket for State v. Hernandez, No. SC11-1357, by clicking here.

With Opinions This Long, Who Has Time To Read Them?

It’s been a very busy few days since I was last able to post anything.  So last evening, I went to the Eleventh Circuit homepage to scan the latest criminal appeals decisions, and came across Holsey v. Warden, Georgia Diagnostic Prison, No. 09-14257, an opinion affirming the denial of a petition for writ of habeas corpus filed by Holsey, a death row inmate in Georgia.  I was shocked to see that the opinion is 152 pages long!!

Normally, you might think that a longer opinion is more valuable in that such opinions at least allow the lawyers in the case to feel like their positions have been well considered by the Court.  Compared to State court criminal appellate opinions, many of which are mere PCAs, or no more than a few paragraphs long, federal court opinions at least tend to provide a more thorough analysis of the issues.  However, this 152-page opinion is a bit extreme, and I don’t mind saying so because even Judge Edmondson agrees!  In his concurrence, beginning on page 104, Judge Edmondson makes some valid points, such as (1) longer opinions tend to contain more information than is needed to dispose of the issues, thereby increasing the chance for judicial error; (2) longer opinions can be overly taxing on the fellow judges of the panel, who have other cases to decide, on members of the Bar who try to stay current with the Court’s latest thinking, and on the public at large, as non-lawyers may have difficulties understanding the basis for the court’s decision; and, (3) longer opinions make it more difficult for lawyers to discern the rationale from dicta.

If you have any time to spare, I suggest a quick review of Judge Edmondson’s concurrence.  And if you need something to get you fired up for the day, don’t miss Judge Barkett’s dissent!

Judge Who is Facebook Friends with the Prosecutor Should Have Recused

Just a quick note to mention that in Domville v. State, No. 4D12-556, Florida’s Fourth District Court of Appeal recently held that a Judge who is Facebook friends with the prosecutor should have recused himself.  This is an opinion that Florida’s criminal defense and criminal appeals attorneys may want to keep handy.  And if you haven’t googled the Judges on your cases to see if they have a Facebook page, you should do so now . . .

Florida’s Second DCA Issues Opinion Discussing Admissibility of Battered Woman Syndrome as Defense to Charges of Failing to Protect a Child

Florida’s Second District Court of Appeals recently released the opinion of Brewington v. State, No. 2D10-458, where the Court considered the admissibility of battered woman syndrome as a defense to a charge of Aggravated Manslaughter of a Child.  Florida’s criminal defense and criminal appeals attorneys are familiar with the defense being raised where the woman engaged in an aggressive act.  However, in Brewington, the defense attempted to introduce the syndrome in an interesting way.  Ms. Brewington, who was the  victim of an abusive boyfriend, had her children taken away from her when the State  discovered that her boyfriend had been selling drugs from her home.  A month later, the State returned her children.  Shortly after the children had been returned to Ms. Brewington, police responded to her home to investigate a report that one of her children was not breathing.  The child was taken to the hospital and died.  According to the opinion, the child had been beaten over a period of several days by Ms. Brewington’s boyfriend.  Brewington, slip op. at 2.

Both Ms. Brewington and her boyfriend were arrested and charged in the death of her child.  Ms. Brewington was charged with Aggravated Manslaughter of a Child, essentially by culpable negligence.  At trial, Ms. Brewington attempted to use the battered woman syndrome to challenge the mens rea element–culpable negligence.  Specifically, she sought to present evidence that she suffered from battered woman syndrome, that the syndrome caused her to fail to realize exactly what was taking place, that she did not know her boyfriend was beating her child, and that she did not realize her child needed a doctor.  Ms. Brewington testified that once her boyfriend could no longer hide the child’s condition, he took away her cell phone and prevented her from calling for help.  Ms. Brewington testified that her boyfriend beat her in the past and that she was afraid of him.  Brewington, slip op. pg. 3.

Although the trial court found the defense to be inadmissble because the defense failed to meet the Frye test, and the Second DCA affirmed, the opinion is still worth reading because it contains a good discussion of admissibility of scientific evidence under Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923), as well as a great discussion of other State’s approaches to the admissibility of battered woman syndrome, and the emergence of the use of battered woman syndrome to defend against criminal charges of failing to protect children.  Brewington, slip op., pgs. 3-7.  The Court quoted at length from an article drafted by Kathy Luttrell Garcia: Battered Women and Battered Children: Admissibility of Evidence of Battering and its Effects to Determine the Mens Rea of a Battered Woman Facing Criminal Charges for Failing to Protect a Child From Abuse, 24 J. Juv. L. 101, 139 (2003-04):

Clearly, admission of evidence of battering and its
effects will not relieve a battered woman from criminal
liability when the factfinder determines that she actively
participated in the abuse of a child.  It also will not
automatically, and might not completely, relieve a battered
woman from criminal liability when she fails to protect her
child from the abuse of another.  It should be admitted,
however, when relevant to the issue of whether or not the
passive parent actually formed a culpable mental state that
is an element of the charged offense.
Effects of battering evidence will help the trier of fact
understand the circumstances surrounding the abuse.  It will
also help the trier of fact to determine the existence and
extent of the “passive” parent’s participation in the abuse,
the extent of the passive parent’s attempts to protect the
child, and the extent to which the actions of the direct abuser
prevented the passive parent from doing so.  This will help
ensure the focus is more appropriately placed on the parent
or caretaker having the greater culpability for the violence:
the parent who directly inflicted the injuries on the child, and
who prevented the “passive” parent from intervening on the
child’s behalf.


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