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: March, 2013

Florida v. Jardines: United States Supreme Court Holds that Using Drug Dog on Homeowner’s Front Porch is a Search Under Fourth Amendment

You may recall in one of my previous posts that I was waiting for the Supreme Court to issue opinions in a couple of Florida cases involving drug dogs.  Well, on March 26, 2013, the Supreme Court issued its opinion in the second case, Florida v. Jardines, No. 11-564, and held that using a drug dog on a homeowner’s  front porch to investigate the contents of the home is a “search” within the meaning of the 4th Amendment.  If you are a criminal defense or criminal appeals attorney who handles a lot of cases involving the Fourth Amendment, this is a good case to keep in handy.  At a mere 10 pages, the majority opinion is a straightforward application of the Fourth Amendment’s property-based protections.  In short, the Court affirmed the Florida Supreme Court’s decision, and held that the officer’s act of entering the curtilage with the drug dog for the sole purpose of conducting a drug sniff of the residence violated the Fourth Amendment.

Not surprisingly, the best part of the opinion lies in the unusual composition of the majority and dissenting camps.  While Justice Scalia authored the majority opinion, (he was joined by Justices Thomas, Kagan, Ginsburg, and Sotomayor), the dissenters were Justices Alito, Kennedy, Breyer, and Chief Justice Roberts.  Justices Kagan, Ginsburg, and Sotomayor issued a concurring opinion, wherein they stated that they would have also affirmed on privacy grounds, following Kyollo v. United States, 533 U.S. 27 (2001).

United States Supreme Court Accepts Cert On Case Out of Southern District of Florida: 12-464: Kaley v. United States

If you’re a criminal defense attorney in South Florida, you’re well aware that everything is harder for you in Federal court.  Not only do your clients have a high likelihood of being detained pre-trial without bond,  but the Government might even move, pre-trial, to restrain assets which might otherwise be used to retain counsel.  In April, the Eleventh Circuit issued an opinion in United States v. Kaley which not only affirms the right of the Government to restrain  assets pre-trial, but also prohibits the defense from challenging the Government’s evidentiary support and legal theory to do so.  If you practice in the jurisdiction of the Eleventh Circuit, take a few minutes to read it.  And don’t forget to read the concurrence by Judge Edmondson, since it reads more like a dissent than a concurrence.  Overall, the opinion gives you a lot to think about in terms of the right to counsel, the right to counsel of choice, and allowing the defense a fair shot at challenging the Government’s use of power.

After reading the opinion, you might feel dejected.  After all, here’s yet another pro-Government opinion issued by the Eleventh Circuit.  But wait- there might be hope!  The United States accepted cert in the Kaley case on March 18, 2013, and issued the following Question Presented:

12-464 KALEY V. UNITED STATES
DECISION BELOW: 677 F.3d 1316
CERT. GRANTED 3/18/2013
LOWER COURT CASE NUMBER: 10-15048
QUESTION PRESENTED:
Title 18 U.S.C. § 853(e) authorizes a district court, upon an ex parte motion of the United States, to restrain an indicted defendant’s assets that are subject to forfeiture upon conviction.  The statute does not provide for a post-restraint, pretrial adversarial hearing at which the indicted defendant may challenge the propriety of the restraints.
In United States v. Monsanto, 491 U.S. 600 (1989), this Court rejected a Fifth and Sixth Amendment challenge to the restraint of an indicted defendant’s assets needed to pay counsel of choice but, in a footnote, explicitly left open the question -by then already dividing the circuits -”whether the Due Process Clause requires a hearing before a pretrial restraining order can be imposed.”  Id. at 615 n.10.
Since 1989, the circuit courts have continued to wrestle with the issue, producing a firmly entrenched split among the eleven circuits that have addressed it.  Acknowledging the widespread conflict, the Eleventh Circuit held that assets needed to retain counsel of choice may remain frozen through trial based solely on a restraining order obtained ex parte, despite a defendant’s timely demand for a hearing to challenge the viability of the charges and forfeiture counts that purportedly justify the pretrial restraint.  United States v. Kaley, 677 F.3d 1316 (11th Cir. April 26, 2013) (“Kaley II”), App. 1-31.
Thus, the question presented in this petition, which would resolve a split in the circuits,
is:
When a post-indictment, ex parte restraining order freezes assets needed by a criminal defendant to retain counsel of choice, do the Fifth and Sixth Amendments require a pretrial, adversarial hearing at which the defendant may challenge the evidentiary support and legal theory of the underlying charges?

Florida’s 4th DCA Holds That Suspect in Barricaded Residence is Not in Custody for Purposes of Miranda, and Happy Anniversary, Gideon v. Wainwright!

If you’re a criminal defense or criminal appeals lawyer who loves constitutional issues, you may want to take a minute to read through an opinion issued by Florida’s 4th DCA recently.  In Erin Atac v. State, No. 4D10-3024, the Court followed the decisions of other States, and held that Atac was not in custody for purposes of  Miranda v. Arizona, 384 U.S. 436 (1966), when he made incriminating statements to police during a barricaded standoff.  His conviction for manslaughter was affirmed.

In other news, it’s the 50th anniversary of the monumental decision Gideon v. Wainwright.  For an interesting report containing some cool background information, as well as an entire website dedicated to preserving the legacy of the Gideon decision, click here and here.  Enjoy!

Florida Supreme Court Disciplines Judge Shea of the Ninth Judicial Circuit

The Florida Supreme Court recently issued an opinion adopting the recommendations of the JQC, and disciplined the Judge Shea, a Circuit Court Judge for the Ninth Judicial Circuit.  I thought I’d pass this along because if you are criminal defense attorney who has cases pending before Judge Shea, or if you handle criminal appeals of any of Judge Shea’s cases, you should probably be aware of some of his inappropriate behavior (that is, if you’re not already).  In the opinion, Judge Shea stipulated to five charges:

[1.]  In the summer of 2007, Assistant State Attorney Sarah Freeman was sitting in the jury box with two other attorneys making notes on her pretrial docket while [Judge Shea addressed] a matter that was not hers.  When [Judge Shea] observed her shake her head, [Judge Shea] got up out of [his] seat, stood behind [his] chair and screamed loudly at her for what [he] perceived as disrespectful conduct.
[2.]  In 2007, during an off-the-record sidebar argument by Assistant State Attorney Camelia Coward regarding a plea to the bench, [Judge Shea] remarked to the opposing attorney, “Do you know what I do when my wife and I disagree? I just let her talk.” [Judge Shea] continued, “I find that it is best just to let her talk until she’s finished.”  [Judge Shea] then indicated that, once she is finished, you can do what you want anyway.
[3.]  On August 18, 2009, in State [v.] Habeych Case No. 48-2008-CF-12888-0, [Judge Shea] sentenced Mr. Habeych without his attorney present.  This was done over his objection. Mr. Habeych was charged with Trafficking in Hydromorphone, which carries a minimum mandatory sentence.  [Judge Shea] imposed the mandatory minimum sentence.  [Judge Shea] then told [Mr. Habeych’s] father that if he had any questions that he could go upstairs to the courtroom where the defense lawyer was appearing before another judge.
[4.]  In State v. Bullock, Case No. 48-2009-CF-8037-0, [Judge Shea] granted a Judgment of Acquittal on one of the counts of an Information alleging Possession of a Firearm by a Convicted Felon.  That count had been severed for a separate trial from another count of the Information charging the defendant with Grand Theft of a Motor Vehicle.  At the subsequent trial call, on April 12, 2010, when Assistant State Attorney Stephen Brown announced his intention to proceed on the remaining count, [Judge Shea] mistakenly believed the State did not have a good faith basis to proceed on that charge. [Judge Shea] became visibly angry and reprimanded the attorney in open court by saying his duty was to act in an ethical manner and to follow his oath as an attorney rather than merely follow office policy guidelines of the State Attorney’s Office.  [Judge Shea] then ordered him into the jury room where [Judge Shea] continued to berate his ethics.  To [Judge Shea’s] credit, when [Judge Shea] realized [his] mistake, [Judge Shea] then apologized.
[5.]  These repeated actions constitute conduct unbecoming a judicial officer and lack the dignity appropriate to judicial office, with the effect of bringing the judiciary into disrepute.
I think it goes without saying that the Judge’s behavior is unacceptable, and I’m glad to see that he was disciplined.   So, what discipline did the Supremes dish out for the Judge?  A public reprimand accompanied by letters of apology and continuing mental health treatment.

Is Speeding Up Appeals Process for Florida’s Death Row Inmates A Good Thing? Senator Joe Negron Thinks So

Well, the week is practically over and I’ve not had as much time for reading opinions as I like, but I came across an interesting article from the Palm Beach Post that I thought deserved mentioning.  According to the report, Florida Senator Joe Negron is sponsoring the “Timely Justice Act of 2013″ in an effort to speed up the appeals process for death-row inmates.   According to Negron, the bill is “designed to streamline litigation and cut out duplicate or baseless appeals filed by prisoners after the state Supreme Court has upheld a murder conviction and death sentence.”

Any Florida criminal attorney (whether you handle trials or appeals) knows that death row appeals can take years to conclude.  And everyone who’s familiar with the system also knows there will always be baseless appeals filed by certain individuals.  But in my view, to try to legislate the time for the appeals process seems misdirected.  After all, we read stories every day about inmates who are exonerated after spending years on death row.  Why cut off their time for appealing their conviction with another arbitrary deadline?  Instead, the legislature should focus on other things of greater constitutional concern–for example, amending the death penalty statute to require a unanimous recommendation by the jury before the death penalty could be imposed.  As noted in the Palm Beach Post report, Florida is the ONLY state that does not require a unanimous jury recommendation.  Or perhaps the legislature could spend their time on something even more important, like repealing the death penalty altogether.  Isn’t it time Florida joined the other civilized States in the U.S.?

You can view the text of the bill, and other information about the bill (SB 1750), here.

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