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: July, 2013

Florida’s Fourth DCA Reverses Dismissal of Charges Against Public Official, And The Court Still Struggles With Retroactivity of Padilla in Postconviction Cases

In an opinion released this week, the Fourth District Court of Appeal in West Palm Beach held that the trial court erred by dismissing corruption charges against a public official.   Although the opinion is not final until any motion for rehearing is disposed of, the opinion essentially allows the State to resume prosecution of the official.  Since it’s pretty uncommon to see public corruption charges in State court (most public corruption cases arise in federal court), this would be a good opinion to read.  Not only will it be helpful to criminal defense attorneys who defend public corruption cases, but the opinion also contains a good discussion of motions to dismiss and traverses under Fla. R. Crim. P. 3.190(c)(4).

Criminal appeals attorneys should take a few minutes to read another opinion released by the Fourth DCA, Perez v. State, 4D10-3180, because it shows that the Court is still struggling with the issue of whether Padilla v. Kentucky, 550 U.S. 356 (2010), applies retroactively in postconviction cases.  In support of its holding that Padilla would not apply retroactively, the Court reasoned that Perez’s conviction became final before the Padilla opinion issued, and Perez did not file his motion for postconviction relief until after Padilla.  The majority opinion, authored by newly-appointed Judge Forst, contains a good discussion of Padilla, Hernandez v. State, 37 Fla. L. Weekly S730, S731-32 (Fla. Nov. 21, 2012), in which the Florida Supreme Court held that Padilla does not apply retroactively, and Chaidez v. United States, 133 S.Ct. 1103, 1113 (2013), where the United States Supreme Court held that a defendant may not obtain federal relief based on Padilla where his or her conviction became final on direct review before Padilla was decided.  Judge Stevenson authored a well-reasoned dissent wherein he stated that he would apply Padilla retroactively because Perez’s postconviction motion was already in the pipeline when Padilla was decided.

Gil v. State: SC11-1983: Florida Supreme Court Reverses Third DCA and Holds That Double Jeopardy Precludes DWLS and HTO Charges Arising From Same Incident

Florida’s criminal defense and criminal appeals attorneys who handle a lot a traffic offenses will be happy to know that the Florida Supreme Court has reversed the Third DCA in Gil v. State, SC11-1983, on an issue that occurs all too often.  I’m sure you’ve seen it before: just as in Gil, your client gets stopped for one reason or another, and during the stop, the officer determines that your client has been driving on a suspended license.  As in Gil, your client will probably be charged with misdemeanor DWLS, under section 322.34(2).  And if your client really lucky, he or she might also be charged as an Habitual Traffic Offender (HTO) under section 322.34(5).  Is that proper?  Not anymore.  According to the Supreme Court in Gil, because DWLS under section 322.34(2) is a degree variant of HTO under section 322.34(5), the State Attorney can no longer charge your client with offenses under both sections–assuming, of course, that the offenses both arise from the same incident.

The 4th DCA and the 4th of July

Between working to get ahead before traveling, and then working to catch up after traveling, there has not been much time for blogging.  But I wanted to take a minute to pass along a couple of opinions issued by the Fourth DCA around the 4th of July holiday.

(1) If you are a Florida criminal defense or criminal appeals attorney who handles mental health cases, take note.  In Julius Smith v. State, No. 4D12-3603, the Fourth reversed the order of a magistrate which adopted a mental health treatment plan because there was not competent substantial evidence showing that Smith’s multidisciplinary team had discussed and approved of the treatment plan, as required by Troutman v. State, 112 So. 3d 638 (Fla. 4th DCA 2013).

(2) In Jakaris Taylor v. State, No. 4D09-4703,  and 4D11-4559, the Court certified conflict with Thomas v. State, 78 So. 3d 644 (Fla. 1st DCA 2011), on an issue arising out of Graham v. Florida, 560 U.S. 48 (2010).  The question certified is whether Graham applies to lengthy term-of-years sentences that amount to life sentences.  In a second certified question, the Court also asked at what point does a term-of-years sentence become a de facto life sentence.  This will be an interesting issue to watch as it makes its way up to the Florida Supreme Court, and to see if the Court decides to exercise conflict jurisdiction.

(3) Finally, in Robert Howard Wright v. State, No. 4D11-2771, the Fourth reversed a conviction based on a determination of legally inconsistent verdicts.  This is a good opinion for criminal appeals and criminal defense lawyers.  If you ever get into a case involving inconsistent verdicts, you should take a minute to read the opinion.


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