Appellate Law, Criminal Defense, Criminal Appeals & Criminal Appellate Review and Post Conviction Relief in Florida Courts, Federal District Courts and the 11th Circuit for Criminal Attorneys, Criminal Lawyers & Appellate Lawyers
You may recall from two of my posts a few months ago that in Lafler v. Cooper, No. 10-209, and Missouri v. Frye, No. 10-444, the United States Supreme Court revised the analytical framework to be used for claims of ineffective assistance of counsel for failure to communicate plea offers. (To see those posts, click here and here). Well, Florida’s 4th DCA has now issued an opinion, Gribble v. State, 4D11-4352, addressing both of those US Supreme Court decisions, as well as the Florida Supreme Court decision of Alcorn v. State, 38 Fla. L. Weekly S397 (Fla. June 13, 2013).
In Gribble, the defendant appealed the summary denial of his 3.850 motion, wherein he alleged that his criminal defense attorney was ineffective for misadvising him of the maximum sentence he faced. Based on counsel’s misadvice, Gribble rejected a plea offer. After trial, he was convicted of driving on a suspended license, and the State requested habitualization. The court sentenced Gribble to 8 years’ imprisonment, which is 3 years more than he was advised he could get. According to Gribble, had counsel advised him that he could get 10 years as an habitual offender on the DWLS count, he would have taken the State’s 5 year plea offer.
On appeal, although the State conceded deficient performance by counsel, the State (predictably) argued that Gribble failed to prove that he was prejudiced because he was sentenced to only 8 years, which is less than the potential 10 years he faced. However, the Court rejected the State’s argument, and noted that the correct analysis of the prejudice prong under Lafler,Frye, and Alcorn requires an examination of “whether the defendant has shown a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time, not whether he received the same sentence as what he was incorrectly advised.” Gribble, slip op., pg. 2. The court reversed the trial court’s summary denial of Gribble’s 3.850 motion, and remanded for an evidentiary hearing pursuant to Alcorn, Lafler, and Frye.
A big change has been announced for the Eleventh Circuit: Judge Rosemary Barkett will be leaving the Court. According to a press release issued by the Department of State on August 23, 2013, Judge Barkett has been appointed to the Iran-United States Claims Tribunal in The Hague. She will begin her new position on October 1, 2013. Although she will no doubt excel in her new position, she will be sorely missed by the federal criminal defense and criminal appeals attorneys throughout the State of Florida and the rest of the Eleventh Circuit.
At least Justice Ruth Bader Ginsburg has no intention of leaving her position at the nation’s highest court. At the age of 80, she is still running full steam ahead, and sees herself as the leader of the liberal opposition on one of the most activist courts in history. For the article published in the Washington Post, click here.
Meanwhile, on a more local note, Governor Scott has appointed 2 new Judges to the 4th DCA in the last 5 months. Judges Forst and Klingensmith were appointed in March and August of this year. Since I’ve already seen their names in several opinions, they both seem to have hit the ground running. You can see the official profiles of Judges Forst and Klingensmith here. Best of luck to them in their new positions.
Can you guess which of Florida’s appellate courts is not like the others? If you handle criminal appeals on a regular basis, then you know that four out of five of Florida’s District Courts of Appeal are on eDCA, the electronic filing system begun by the 1st DCA a while ago: the First, Third, Fourth and Fifth DCA. But one of them stands alone: the Second DCA. While the other DCA’s opted to follow the course of the First DCA, and begin their foray into e-filing on eDCA, the Second is the only DCA to skip eDCA, and commence its foray into e-filing by jumping directly onto Florida’s Statewide e-filing Portal. (the Florida Supreme Court did this as well a few months ago). Today marked the first day of voluntary filing with the 2nd DCA through the Portal.
Have any of you tried filing with the 2d DCA through the Portal? I did. It leaves a lot to be desired. Don’t get me wrong, e-filing definitely beats having to send your briefs, motions, and responses via FedEx, followed by a courtesy copy by e-mail, but for some reason, the Portal does not seem to provide access to the court docket. To see the appellate docket, you still need to go to the “online dockets” link from the Portal website, or at any of the DCA webpages, and those dockets are not real-time. So in other words, you can submit something electronically, but it still won’t show up on the docket for several days. The other thing I don’t like is that when you’re filing through the Portal, you don’t get a time-stamped copy to reflect the time and date of your e-filing. Similar to the Federal CM/ECF system, the e-DCA system provides both of those functions.
If you are lucky enough to be in Federal court, then you get the ease of working with CM/ECF. In my view, CM/ECF is the best e-filing system there is because you get a real-time docket, time/date stamps on your e-filed pleadings, electronic confirmation of your successful filing, and automatic e-service of your pleadings on the other parties in the case (except pro se parties). E-DCA is a close second. Although e-DCA lacks electronic service, e-DCA at least provides you an e-mail alert that a pleading or order was filed in the case, and a link to view the document. Plus, e-DCA provides you with a real-time docket, time/date stamps on your e-filed pleadings, and electronic confirmation of your successful filing.
E-filing in Florida’s State courts is a work in progress. In the coming months, the First, Third, Fourth and Fifth DCA will all have to make the transition to the Statewide Portal, as will the rest of Florida’s trial courts. Hopefully, the Portal we have today is a work in progress, too.
Since the Eleventh Circuit has a new Chief Judge now (Judge Dubina passed the gavel to Judge Carnes as of August 1), I thought I’d take a few minutes to mention two interesting opinions issued by the Eleventh.
(1) United States v. Fries, No. 11-15724. If you handle federal or state criminal appeals, you’re probably familiar with filing Anders briefs (Anders v. California, 386 U.S. 738 (1967)) when you’ve searched the record, but are unable to discover any appealable issues. Often, the courts accept Anders briefs without question. However, in Fries, the Eleventh Circuit declined to accept appellate counsel’s Anders brief, and instead directed counsel to brief two specific issues:
(1) whether the district court effectively removed the burden of proof regarding an element of the 18 U.S.C. § 922(a)(5) offense by instructing the jury that the sale of a firearm to a licensed dealer was an exception to the prohibition on sales to non residents that did not apply in the case; and
(2) whether the evidence was insufficient to convict when no evidence was presented as to whether the buyer of the firearm was a licensed dealer.
In a revised brief, appellate counsel argued that Fries’ conviction for transferring a firearm to an out-of-state resident should be reversed for insufficient evidence because (1) the evidence at trial failed to show that he sold a firearm to a person who was not a licensed firearms dealer; and, (2) in the alternative, he should be granted a new trial because the court’s jury instructions shifted the burden of proof.
The Eleventh Circuit agreed, and reversed for a simple reason: at trial, the prosecutor failed to establish an essential element required by section 922(a)(5)–that the individual to whom Fries sold the firearm lacked a federal firearms license (“FFL”). After a bit of help from the Court by declining to accept the Anders brief, this is a good win for the defense. It’s not very often that the Government commits such an error. As noted by Judge Carnes in his concurrence, all the prosecutor had to do during the Government’s case in chief was ask a simple question as to whether the ATF agent who purchased the gun from Fries at the Tallahassee Gun and Knife Show had a federal firearms license.
(2) In United States v. Curbelo, No. 10-14665, the Court affirmed Curbelo’s conviction for a count of conspiracy to manufacture and possess marijuana with intent to distribute, and a second count of manufacturing and possessing marijuana with intent to distribute. According to the opinion, it seems that Mr. Curbelo was employed as a carpenter for a Mr. Diaz, and that when the carpentry work was no longer lucrative enough, Mr. Curbelo decided to join in Mr. Diaz’s grow-house operations. Although the case is a fairly routine opinion affirming a conviction, it’s worth a read, if you have time. Although I won’t discuss each of the five points analyze by the Court, I will note four of them for you here.
First, the case illustrates a rule often invoked in criminal (and civil, for that matter) appeals: if you don’t object or make a specific argument below, you’re generally going to be precluded from raising that argument on appeal. In his brief, Curbelo argued that the DEA obtained GPS tracking data from vehicles driven by Mr. Diaz and another individual named Herman Torres in violation of the Fourth Amendment, as held in United States v. Jones, 132 S.Ct. 945, 948 (2013). However, the Court refused to entertain such argument because defense counsel never moved to suppress the DEA’s GPS tracking evidence.
Second, the Court addressed another topic that often arises in criminal appeals: ineffective assistance of counsel. Although Curbelo argued that his attorney was ineffective for failing to move to suppress the DEA GPS tracking evidence, the Court refused to consider the claim on the merits because the record was not sufficiently developed.
Third, the Court addressed Curbelo’s argument that the evidence was insufficient to support the sentencing enhancement for a conspiracy involving more than 1,000 marijuana plants. The Court quickly disagreed. In so doing, the Court noted that because the number of plants was determined by a jury, Alleyne v. United States,133 S.Ct. 2151 (2013), which was decided after the case was briefed and oral argument was held, required affirmance of the sentencing enhancement.
Finally, the Court rejected Curbelo’s Confrontation clause argument as to the Government’s use of English-translation transcripts of recorded conversations at trial. In it’s analysis, the Court focused on Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011) and Crawford v. Washington, 541 U.S. 36 (2004).
The Florida Supreme Court is in recess until August 29, 2013, but I came across a good opinion issued by the Fourth DCA that I wanted to pass along because it provides a good example of preserving objections for purposes of appeal. If you’re an attorney that handles appeals, criminal or civil, then you know that preservation of issues for appeal can sometimes be crucial. For those of you who don’t handle appeals, preservation basically comes down to this: if you want to make an argument on appeal, you must have first objected and/or made that same argument to the trial court. If you haven’t objected, or if you haven’t presented that argument to the trial court, then the appellate court may decline to entertain that argument on appeal.
In Dinkines v. State, 4D12-1845, a case which originated in Broward County, Dinkines was charged with dealing in stolen property and false verification of ownership or false identification given to a pawnbroker. After a jury trial, Dinkines was convicted of the false verification of ownership, but was acquitted of dealing in stolen property. Even though Dinkines scored any non-state prison sanction, the trial court sentenced Dinkines to three years in Florida State Prison.
According to the opinion, at the sentencing hearing, defense counsel did everything he or she could have to preserve the issue for appeal: (1) counsel filed a rule 3.800(b)(1) motion to correct sentencing error; and, (2) at the hearing on the motion to correct, counsel argued that the trial court erred by basing its sentence on argument of the prosecutor at the sentencing hearing, rather than on evidence or testimony. Even after the trial court remained steadfast in his opinion, defense counsel continued to press the court, arguing that Dinkines had been acquitted of dealing in stolen property, that she was only convicted of the false verification charge, and that Dinkines had not been charged with burglary or any other crime. Unfortunately for Dinkines, the trial court was unpersuaded by defense counsel’s argument, and entered a written order containing findings of fact in support of the 3 year prison sentence.
On appeal, the Fourth DCA agreed with the arguments of Dinkines’ counsel, and reversed. Apart from the preservation aspect of the opinion, you might want to take a few minutes to read the Fourth DCA opinion because the Court took the time to pinpoint several problematic aspects of the trial court’s sentencing considerations, including the fact that the court referred to Dinkines as a “thief,” criticized her for failing to demonstrate remorse, and sentenced her based on argument of the prosecutor which was not substantiated by the trial. Let’s hope that when the trial court resentences Dinkines on remand, that the court does so based on the evidence contained in the record, not on his personal opinions.