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: October, 2012

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

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:

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.

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?

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

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

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

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!


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