Monthly Archives: October 2012

Padilla v. Kentucky: Will it Apply Retroactively? United States Supreme Court Oral Argument Set for October 30, 2012

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Criminal defense and criminal appeals lawyers may be interested to know that on October 30, 2012, the United States Supreme Court will be having OA in the case of Chaidez v. United States, No.11-00820, to consider the question of whether Padilla v. Kentucky, 130 S. Ct. 1473 (2010), will apply retroactively to defendants whose convictions became final before the Padilla decision was rendered.  The formal Question Presented, as framed by the Court, reads as follows:

11-820 CHAIDEZ V. UNITED STATES
DECISION BELOW: 655 F.3d 684
CERT. GRANTED 4/30/2012
QUESTION PRESENTED: In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), this Court held that criminal
defendants receive ineffective assistance of counsel under the Sixth Amendment
when their attorneys fail to advise them that pleading guilty to an offense will
subject them to deportation.  The question presented is whether Padilla applies to
persons whose convictions became final before its announcement.
LOWER COURT CASE NUMBER: 10-3623

The Florida Supreme Court is considering the retroactivity issue as well, in the case of State v. Hernandez, No. SC11-1357.  According to the docket, the Florida Supreme Court held OA in May of 2012.  Since the Florida Supreme Court has yet to issue a decision, perhaps it’s waiting to see what the United States Supreme Court decides in Chaidez.  My last post on the Hernandez case can be found here.

Eleventh Circuit Finds Florida’s Death Penalty Statute Constitutional: What Now? Rehearing in Eleventh Circuit, or Petition for Writ of Certiorari to Supremes?

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You may have read my previous post wherein I mentioned that the Eleventh Circuit has finally ruled that Florida’s death penalty statute is constitutional.  See Evans v. Sec‘y, Dept. of Corrections, No. 11-14498 (opinion issued October 23, 2012).  Well, now what can Evans do?

Only Evans and his criminal appeals lawyers know for certain what will happen next, but any appellate attorney knows that Evans generally has 3 options: (1) do nothing; (2) seek rehearing in the court of appeals; or, (3) seek discretionary review in the United States Supreme Court.  If he is going to try to seek rehearing in the Eleventh Circuit or discretionary review in the United States Supreme Court, he’ll have to act quickly.

A motion for rehearing in the Eleventh Circuit (“Petition for Panel Rehearing”) will have to be filed within 14 days after the entry of judgment.  See Fed. R. App. P. 40.  The Federal Rules of Appellate procedure can be found on the website for the Eleventh Circuit by clicking here.

If Evans decides to seek review in the United States Supreme Court, United States Supreme Court Rule 13 provides that a party seeking to file a petition for writ of certiorari will have to file the petition within 90 days after the entry of judgment.   Rule 13.3 further provides that the 90 days begins to run from the date of the entry of the judgment, not the date mandate issues.  If rehearing is sought in the lower appellate court, the 90 days begins to run from the date of the denial of rehearing or, if rehearing is granted, the subsequent entry of judgment.  The Rules of the United States Supreme Court may be viewed here.

Put simply, seeking discretionary review in the United States Supreme Court is a long shot.  For an interesting article on seeking review in the Supreme Court, view an article posted on the Mayer Brown website by clicking here.

And now the next round of waiting begins . . .

Evans v. Sec’y, Dept. of Corrections, No. 11-14498: Eleventh Circuit Holds Florida’s Death Penalty Statute Constitutional

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Florida’s criminal defense and criminal appeals attorneys who follow death penalty jurisprudence may be interested to know that the Eleventh Circuit has finally issued an opinion in Evans v. Sec’y, Dept. of Corrections, No. 11-14498, a case where the United States District Court for the Southern District of Florida found that Florida’s death penalty statute violated Ring v. Arizona,  536 U.S. 584 (2002).  Not surprisingly, the Eleventh Circuit disagreed with the District Court, and reversed the grant of habeas relief on such basis.

In support of its holding that Florida’s death penalty statute does not violate Ring, the Court first noted that the United States Supreme Court has repeatedly held that Florida’s judge-based sentencing system does not violate either the 6th or 8th Amendments.  See Evans, slip op. at pgs. 11-16 (citing Proffitt v. Florida, 428 U.S. 242 (1976); Spaziano v. Florida, 468 U.S. 447 (1984); Hildwin v. Florida, 490 U.S. 638 (1989); and, Porter v. McCollum, 558 U.S. 30, —, 130 S.Ct. 447, 453 (2009).

Second, the Court reasoned that the Florida death penalty statute differs from the Arizona death penalty statute at issue in Ring because a Florida jury renders an advisory verdict addressing the existence of aggravating circumstances, and because, inter alia, the sentencing judge must give the jury’s sentencing verdict “great weight” pursuant to Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975).  In discussing the differences between the Florida and Arizona death penalty statutes, the Eleventh Circuit also noted that in Ring and several other opinions, the United States Supreme Court has hinted that Florida’s death penalty scheme might pass constitutional muster.  Evans, slip op. at pgs. 17-25 (citing Walton v. Arizona, 497 U.S. 639 (1990); Jones v. United States, 526 U.S. 227, 250–51 (1999); and Hildwin, 490 U.S. 638).

Finally, the Eleventh Circuit noted that although some United States Supreme Court jurisprudence may cast doubt on the constitutionality of Florida’s death penalty scheme, only the United States Supreme Court has the authority overrule its own decisions.  See Evans, slip op., at pgs. 26-27 (collecting cases).  In short, because Hildwin, 490 U.S. 638, is directly on point, and has never been overruled, the Eleventh Circuit stated that it is obligated to follow Hildwin.  See Evans, slip op., pg. 30 (citing Hildwin, 490 U.S. at 640–41) (considering the procedures prescribed by Fla. Stat. § 921.141 (Supp. 1988) and holding that “the Sixth Amendment does not require that the specific findings authorizing the imposition of the sentence of death be made by the jury.”)

Florida Supreme Court Amends Rules of Criminal Procedure

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In case you haven’t noticed, the Florida Supreme Court amended the Rules of Criminal Procedure today, October 18, 2012.  You can view the amendments by clicking here.  The amendments aren’t too long to read through– only 17 pages, so you may want to take a look.  Otherwise, the highlights are as follows:

Rule 3.191(h) (Speedy Trial):  Amended to clarify when a notice of expiration of time for speedy trial is timely filed and served.  By striking the phrase “on or”
from the portion of the rule providing “on or after the expiration of the periods of time for trial provided in this rule,” the rule clarifies that only after the expiration of time for speedy trial is a notification of such an event timely filed.

Rule 3.220(h)(1) (Discovery Depositions):  Amended to reflect that upon application, either a pro se litigant or an attorney for either party may have the court or clerk issue subpoenas.

Rule 3.410 (Jury Request to Review Evidence or for Additional Instructions):  Amended in two respects.  (1) The Rule now permits the playback of digital recordings of trial testimony.  (2) The rule is amended to allow the trial court, in its discretion, to respond in writing to a juror’s question rather than bringing the jury back into the courtroom in order for the trial judge to orally respond to the question.  (Cautionary note to criminal trial attorneys regarding this amendment: if the Judge in your case decides to answer the juror’s question in writing, be sure to make a record of the Judge’s written answer for any appeal.  I suggest either asking the Judge to read his or her written answer into the record before the written answer is given to the juror, or– even better–ask the Judge for a copy of the written answer to be entered into the record as a defense exhibit.  You never know when an issue could pop up in a future appeal!)

Rule 3.800(a) (Correction, Reduction, and Modification of Sentences—Correction):  Amended to clarify that a defendant may seek correction of an allegedly erroneous sexual predator designation under the rule, but only when it is apparent from the face of the record that the defendant did not meet the criteria for designation as a sexual predator.  This amendment is consistent with the Court’s ruling in Saintelien v. State, 990 So. 2d 494, 497 (Fla. 2008).

United States v. Griffin, No. 11-15558: Eleventh Circuit Considers Whether Unrelated Police Questioning Posed During Terry Stop Violate the Fourth Amendment

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In reviewing recent Eleventh Circuit opinions, I came across United States v. Griffin, No. 11-15558, an opinion where the Court considered the issue of whether unrelated police questions posed during a valid Terry stop violate the 4th Amendment.  The answer?  Not necessarily.  As noted at page 13 of the slip opinion, such questions would not violate the 4th Amendment unless they “measurably extend the duration of the stop.”  Like other Circuits, the court refused to adopt  bright-line “no prolongation rule,” and instead stated that the analysis should focus on whether the time it took the officer to ask the questions, and for Griffin to answer them, measurably extended or prolonged the duration of the stop so as to render the stop unreasonable under the 4th Amendment.  Griffin, slip op., pg. 14.  In conducting this analysis, the Court stated that one should assess the length of the stop as a whole, considering all the facts and circumstances.  Griffin, slip op., pg. 14.  If you are a criminal defense attorney who deals with Fourth Amendment issues a lot, then this would be a good opinion for you to read.

The opinion was authored by Judge Adalberto Jordan, who formerly presided in the United States District Court for the Southern District of Florida.  (You can read my post about his elevation to the Circuit Court here).  I have not yet read any other opinions authored by Judge Jordan, but I hope that the Griffin opinion is a sign of things to come.  If you are an attorney who handles criminal appeals, you may appreciate several things about the Griffin opinion.  At 19 pages long, the opinion is relatively short, by Eleventh Circuit standards.  Also, the opinion is written in a direct manner, flows logically, and contains nothing which might make anyone think that the Court had given anything less than full consideration to the positions of each of the parties.  Isn’t that what the best appellate opinions do?  I don’t know about you, but I look forward to reading more opinions by Judge Jordan!

Who Will Be The Next Palm Beach County State Attorney?

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Election day is approaching fast.  Palm Beach County criminal defense and criminal appeals attorneys may want to pay close attention to 1 race in particular: the race for Palm Beach County State Attorney.  The Palm Beach Post recently published a short article outlining the three candidates, Dave Aronberg (D), Robert Gershman (non-party affiliate), and Dina Keever (R), here.

Recently, I went to a local bar function to hear the 3 candidates speak.  Dina Keever actually pulled a no-show.  Not very impressive.  Dave Aronberg was a good speaker, as always.    But I was most surprised by Robert Gershman.  He had a lot of good things to say about returning prosecutorial discretion back to the line prosecutors, and he has many years of experience as both a serious criminal defense lawyer and prosecutor here in Palm Beach County.  For more information about Robert Gershman, you can visit his campaign website by clicking here.  Dave Aronberg’s website can be seen here.  Dina Keever’s website can be seen here.

Knox v. State, 4D10-3023: Concurring Opinion Points Out Trial Judge’s Failure to Remain Neutral

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Just a quick post to mention a good concurring opinion that I came across today in Knox v. State, 4D10-3023.  Florida’s Fourth DCA reversed Knox’s conviction for three counts of robbery with a firearm because of a Confrontation Clause violation (the trial court allowed the State to perpetuate the videotaped testimony of one of the three victims and present that videotaped testimony at trial.)  The most interesting part of the opinion is Judge Hazouri’s special concurrence, wherein he noted the lengths to which the trial judge went to assist the State in preserving its case for trial after it became apparent that the victim would not be able to travel back to the courthouse for trial.  You have got to read it for yourself.  Unbelievable.

Besides the shocking actions of the trial judge, Judge Hazouri’s special concurrence also teaches a valuable lesson: if you are an attorney who handles criminal appeals, don’t forget to raise the issue of judicial neutrality.   Had the attorney handling Knox’s appeal done so, Judge Hazouri stated that the Court would have reversed on that basis, too.

United States Supreme Court Opens October 2012 Term With Case From South Florida

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It’s October, and with that brings the start of the U.S. Supreme Court’s new Term.  Supreme Court junkies from South Florida might be interested to know that the Court opened its term by hearing oral argument in two cases.  Although neither of the appeals is criminal, both appeals present interesting questions.  In Esther Kiobel v. Royal Dutch Petroleum, No. 10-1491, the Court will be addressing “[w]hether and under what circumstances the Alien Tort Statute, 28 U.S.C. 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States?”  The Supreme Court docket can be viewed here.  According to a report on CNN, the case will center on whether foreign victims of torture and other crimes against humanity can sue corporations and others in federal courts of the United States.

According to the docket for the other case, Fane Lozman v. The City of Riviera Beach, Florida, No. 11-626, the res in the putative in rem admiralty proceeding was sold at a judicial auction in execution of the district court’s judgment on a maritime lien and a maritime trespass claim, and subsequently destroyed.   The Court directed the parties to brief whether “either the judicial auction or the subsequent destruction of the res render this case moot?”  According to a news report in the local paper, the Palm Beach Post, the case arose after Lozman was directed to make improvements to and to renew his lease for his houseboat, which he kept at the Riviera Beach Marina.  When Lozman refused, the City impounded the houseboat and destroyed it.  If the Court decides that the issue is not moot, the Court will likely address whether federal admiralty laws apply, such that the City would have been permitted to impound and destroy the houseboat for Lozman’s failure to make the necessary improvements to the houseboat.  Further information on the case can also be found on SCOTUSblog.