Category Archives: 3rd DCA

Florida’s Fourth DCA Denies Petition Seeking Review of Constitutionality of S.B. 1960; Third DCA Has Still Not Issued Decision

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Since it’s cyber Monday, I’ll keep the post short so you can return to your holiday online shopping.

I am sorry to say that on November 19, 2012, the 4th DCA issued an order denying the petition in DelGaizo v. Chief Judge, Seventeenth Judicial Circuit, No. 4D12-2548.  Florida’s criminal defense and criminal appeals attorneys know that SB 1960, which was passed by the Florida Legislature this past summer, severely cut the fees that court appointed counsel can earn.  For my previous posts on the topic, click here and here.  Since no opinion was issued, we will never know the Court’s reasoning.  All that appears on the docket is an entry for an Order denying the Petition.

However, all hope is not lost.  The same issue remains pending in the 3rd DCA, in the matter of Markus v. Hon. Joel H. Brown, No. 3D12-2034.  According to the docket, the last activity was the Petitioner’s filing of the Reply in support of the petition for writ of certiorari, quo warranto, and prohibition, filed on October 22, 2012.  I’ll be sure to keep you posted of any developments.

Florida Supreme Court Delays Mandatory E-Filing, And Courts Issuing Numerous Opinions in Aftermath of Shelton and Adkins

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Mandatory e-filing in Florida’s courts is being delayed.  Surprising, I know.  Check out the order here. Too bad the State of Florida can’t just buy the CM/ECF system that the Federal courts use.  Then again, that would just be too easy.

As I reviewed the websites for Florida’s District Courts of Appeal this week, I noticed that a good number of opinions are being issued in the wake of State v. Adkins, 37 Fla. L. Weekly S449 (Fla. July 12, 2012).  For example, the Fourth DCA issued a slew of opinions denying Rule 3.850 motions for post-conviction relief, while the First and Second DCA reversed several cases which had been dismissed based on Shelton v. Secretary, Department of Corrections, 802 F. Supp. 2d 1289 (M.D. Fla. 2011).  Note: in Shelton v. Secretary, Dept. of Corrections, No. 11-13515, 2012 WL 3641008 (11th Cir. Aug. 24, 2012), the United States Court of Appeals for the Eleventh Circuit reversed the District Court’s grant of federal habeas relief.  You can read my previous post on the Eleventh Circuit opinion here.

For those criminal defense and criminal appeals attorneys who are monitoring the Padilla retroactivity issue, in Litchmore v. State, No. 2D12-800, the Second DCA certified a question of great public importance to the Florida Supreme Court as to the retroactivity of Padilla v. Kentucky, — U.S. —, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), in post-conviction proceedings.  The issue remains pending in the Florida Supreme Court.  You can search the docket for State v. Hernandez, No. SC11-1357, by clicking here.

State v. James Robert Owens, No. 5D11-4257: Florida’s 5th District Court of Appeal Holds That In Moving For Downward Departure Sentence, Criminal Defendants No Longer Have Burden Of Showing That Needed Treatment Is Unavailable In Department of Corrections

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On August 24, 2012, Florida’s Fifth District Court of Appeal released an en banc opinion that will no doubt be welcomed by criminal defense and criminal appeals lawyers across the State of Florida.  In State v. James Robert Owens, No. 5D11-4257, the Court expressly receded from previous decisions which had required a criminal defendant, when moving for a downward departure, to show that the needed treatment was not available in DOC.  In so doing, the Court quoted at length a concurring opinion by Judge Warner of the Fourth District Court of Appeal in State v. Hunter, 65 So. 3d 1123, 1125-1126 (Fla. 4th DCA 2011), which was adopted by the Fourth DCA in State v. Chubbuck, 83 So. 3d 918 (Fla. 4th DCA 2012) (en banc).  The Fifth DCA also certified conflict with cases from the First, Second, and Third District Courts of Appeal.

Although this will be a good case to monitor as it goes to the Florida Supreme Court, what should Florida’s criminal defense attorneys do with the latest opinion by the Fifth DCA?  Well, if you’re lucky enough to handle cases that are within the jurisdiction of either the Fourth or Fifth DCA, then you can rest easy knowing that you have one less burden to prove in moving for a downward departure.  Be sure to cite Owens and Hunter/Chubbuck in your motion for downward departure.  If the trial court denies your motion, you will have a good basis for appeal.  If your cases are within the jurisdiction of the First, Second, or Third DCA, you should still file a motion for downward departure where warranted.  In the motion, you should cite the controlling cases out of your DCA, but you can also cite Owens and Hunter/Chubbuck in support of your position.  If the trial court denies your motion, you’ll be in a better position if you decide to appeal.

United States Court of Appeals for the Eleventh Circuit: Odulene Dormescar v. U.S. Attorney General, No. 10-15822, and Anthony John Ponticelli v. Sec’y, Florida Dept. of Corrections, No. 11-1966

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The United States Court of Appeals has published a couple of interesting opinions in the last few days.  The first, Odulene Dormescar v. U.S. Attorney General, No. 10-15822, concerns the removal of a person convicted of an aggravated felony.  The opinion is a bit long (31 pages), but if you are a criminal defense lawyer who deals with immigration issues, it’s probably a good idea to take a few minutes and review the opinion.

The  second opinion is also long (over 70 pages), but still quite interesting in that the opinion contains a partial dissent, which is a rarity in the Eleventh Circuit.  In Anthony John Ponticelli v. Sec’y, Florida Dept. of Corrections, No. 11-11966, the Eleventh Circuit affirmed the denial of a petition for writ of habeas corpus for death row inmate Ponticelli.  For those criminal defense and criminal appeals lawyers who handle habeas petitions in death cases, this might be a good opinion to review.  After all, it’s not everyday that you get to read an Eleventh Circuit opinion where at least one of the Judges finds that the Florida Supreme Court misapplied Strickland, and that habeas relief should have been granted.  Judge Martin’s partial dissent begins at page 72.

Finally, for those of you who are interested in following the criminal defense bar’s attempts to challenge S.B. 1960, I have heard that the docket for the case in Florida’s Third District Court of Appeal is 3D12-2034.  The style of the case is David S. Markus v. Hon. Joel H. Brown.

Florida Criminal Defense Lawyers’ Challenges To S.B. 1960 Moving Ahead, and Brief Filed in Ulloa v. CMI, Inc., No. SC11-2291

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South Florida’s criminal defense and criminal appeals lawyers who take court-appointed criminal cases and appeals may be interested to know that the case filed by Brent DelGaizo to challenge the constitutionality of S.B. 1960 is moving forward.  On August 7, 2012, Florida’s Fourth District Court of Appeal, located in West Palm Beach, issued an order directing the Chief Judge for the Seventeenth Judicial Circuit (Broward County) to respond to Del Gaizo’s arguments raised in his petition for writ of certiorari.  The response is due August 27, 2012.  To see the docket for DelGaizo v. Chief Judge, Seventeenth Judicial Circuit, case number 4D12-2548, click here.  If the link malfunctions, just go to the 4th DCA’s search page, and enter the case number, 4D12-2548.

The Miami Chapter of the Florida Association of Criminal Defense Lawyers (FACDL-Miami) has likewise filed a challenge to S.B. 1960 in Florida’s Third District Court of Appeal, located in Miami.  Amazingly, an organization of Florida prosecutors has even recently voted in favor of filing an amicus brief in support of FACDL-Miami’s petition to the Third DCA.  This is great news, and only serves to reinforce that the challenges to S.B. 1960 are about more than just money.

I’ll be sure to keep you posted.  To read my previous posts on S.B. 1960, click here, here and here.

Meanwhile, in Ulloa v. CMI, Inc., No. SC11-2291, Ulloa filed his jurisdictional brief today.  To read the brief, click here.  To read my previous post on this case, click here.  Since the case is relatively new, a decision should not be expected for some time.

Florida Bar News Features Article on Low Pay For Court Appointed Attorneys in Criminal Trials and Appeals

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Criminal defense lawyers who accept court appointments to represent the indigent for trial and appeal have long been underpaid.  In a recent post, I discussed Florida’s latest legislative maneuver to decrease the amount of pay for court-appointed attorneys yet again.  Well, now, the Florida Bar News has published an article discussing how low the pay rates really are, and how it affects the criminal justice system overall.  To read the article, click here.   Although the article is very informative, it’s too bad it couldn’t have been published while the issue was pending in the Florida legislature.

Advising People of the Immigration or Deportation Consequences of Their Guilty Pleas: Will the Florida Supreme Court Accept Jurisdiction to Decide if Padilla v. Kentucky, 130 S.Ct. 1473 (2010), Applies Retroactively?

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In 2010, the United States Supreme Court decided Padilla v. Kentucky, 130 S.Ct. 1473 (2010), wherein the Court held that Padilla’s criminal defense lawyer provided ineffective assistance of counsel by failing to advise Padilla that his plea to charges of drug distribution would subject him to automatic deportation under 8 U.S.C. section 1227(a)(2)(B)(i).  The Court further held that in order to render effective assistance of counsel, a criminal defense attorney must advise his or her client whether a plea carries a risk of deportation.  See Padilla, 130 S.Ct. at 1486.

The issues surrounding pleas and immigration consequences are not new to Florida’s trial or appellate courts.  In 2006, four years prior to Padilla, the Florida Supreme Court held that claims of ineffective assistance of counsel based on counsel’s failure to warn of the immigration consequences of a plea must be filed within 2 years of the date that the judgment and sentence (or order withholding adjudication of guilt) become final.  See State v. Green, 944 So. 2d 208, 217-218 (Fla. 2006).  Since Padilla, the issues surrounding immigration or deportation consequences of pleas have remained on the forefront, and one of the latest issues is the retroactivity of Padilla.   In April of 2011, the Third District Court of Appeal issued a decision in Hernandez v. State, 61 So. 3d 1144 (2011), wherein the Court certified the question of the retroactivity of Padilla to be of great public importance.  Although the State of Florida and Hernandez filed their jurisdictional briefs with the Florida Supreme Court in September of 2011, the Court has yet to issue an opinion.  At the end of 2011, the Fourth District Court of Appeal held that Padilla does not apply retroactively.  See Rodriguez v. State, No. 4D10-2016, 2011 WL 5964343 (Fla. 4th DCA Nov. 30, 2011).  Since the issue of retroactivity has yet to be decided, I suppose that Florida’s criminal defense bar, and criminal defendants alike, will have to continue to wait to see what path the Court will choose.  The docket in Hernandez v. State, No. SC11-1357, can be viewed here.

Broward Man Wins Stand Your Ground Decision

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Heads up, South Florida criminal defense attorneys: the Sun Sentinel reports that a Broward man, Nour Badi Jarkas, has beat first degree murder charges after relying on Florida’s Stand Your Ground law.  According to the report, Jarkas went to trial on the charge of murder after he shot and killed the boyfriend of his estranged wife, John Concannon.  At the trial, Jarkas testified that he was invited to his wife’s home in Plantation, Florida, and that she left the residence when Concannon  arrived.  Jarkas also testified that he shot Concannon after Concannon taunted and grabbed Jarkas, and threatened to kill him.  The jury found Jarkas not guilty of armed kidnapping and aggravated assault with a firearm, but could not reach a unanimous verdict on the murder count.  In support of her ruling, Judge Holmes cited the testimony of the medical examiner and Jarkas.  Although Jarkas remains in custody at the Broward County Jail, awaiting a hearing on Thursday, December 15, 2011, his lawyer hopes to secure his release before such time.

The Sun Sentinel’s report also states that another Broward man relying on the Stand Your Ground law, Patrick Wonder, is facing manslaughter charges in the death of a federal agent following a road rage incident in 2008.  In an Order issued May 26, 2011, the Florida Supreme Court ruled that Wonder was entitled to an evidentiary hearing on the Stand Your Ground defense.  Wonder’s Stand Your Ground motion is reportedly set for January, 2012.  For more on the Patrick Wonder case, click here and here.

For some of my previous posts on Florida’s Stand Your Ground law, click here, here, and here.

Joe Paterno and His Failure to Report Child Abuse: What Might Happen in Florida?

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By now, most everyone out there has heard of the scandal surrounding Penn State’s Joe Paterno and the former defensive coordinator Jerry Sandusky.  I woke up this morning to hear a report that Paterno had been fired, and that students have been protesting.  According to the reports, Joe Paterno was told by a university graduate assistant that the assistant witnessed Sandusky having sex with a boy in the football complex showers in 2002.  CNN reports that Sandusky met the boy, and others, through a charity that he founded to help troubled youth.  Paterno reported the information to his boss at the university in 2002, but not to law enforcement.  That caused me to think-what if this had happened in Florida?  Would Joe Paterno have any legal duty to report the case of child abuse to law enforcement?  Would he be liable in any way for not reporting it to law enforcement?  The answer is hard to predict.

Today, chapter 39 of the Florida Statutes governs the area of reporting child abuse.  Under section 39.201(1)(a), reports are mandatory under certain circumstances.  The section provides,

“Any person who knows, or has reasonable cause to suspect, that a child is abused, abandoned, or neglected by a parent, legal custodian, caregiver, or other person responsible for the child’s welfare, as defined in this chapter, or that a child is in need of supervision and care and has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care shall report such knowledge or suspicion to the department in the manner prescribed in subsection (2).”

Fla. Stat. 39.201(1)(a) (emphasis added).

The phrase “any person,” as used in Florida section 39.201, makes the statute appear to be fairly broad.  However, the other emphasized language, “by a parent, legal custodian, caregiver, or other person responsible for the child’s welfare,” may have the effect of restricting the scope of the statute to reports concerning abuse perpetrated by those specifically listed individuals.  In one case, that very argument was successful in the trial court.  See Drudge v. City of Kissimmee, 581 F. Supp 2d 1176, 1189 (M.D. Fla. 2008) (trial court dismissed charges against teacher for failing to report suspected child abuse by fellow teacher because the court determined that the statute did not require the reporting of a public school teacher’s abuse of a student).

Florida section 39.205(1) makes it a first degree misdemeanor to knowingly and willfully fail to report, or to knowingly and willfully prevent another person from reporting, a suspected case of child abuse.  Under 39.205(2), it becomes a third degree felony to knowingly and willfully fail to report child abuse, where the person who should have reported the abuse is 18 years of age or older and living in the same house as the child victim, unless the person who failed to report the abuse is a victim of domestic violence or other mitigating circumstances exist.

Apart from cases involving Florida’s Department of Children and Families, which I’m not discussing here, not many cases have been reported in this area.  Florida’s Fourth District Court of Appeal has held that the predecessor statute, section  415, part 1, did not create a civil cause of action for failing to report abuse.  See Mora v. South Broward Hosp. Dist., 710 So. 2d 633 (Fla. 4th DCA 1998).  In another case, Barber v. State, 592 So. 2d 330 (Fla. 2d DCA 1992), the court held that the predecessor statute, section 415.513(1), was not overly broad.  I was only able to locate two reported cases involving arrests for failing to report child abuse.  See Drudge, 581 F. Supp 2d 1176 (finding that officer who requested arrest warrant under section 39.205 was immune from liability under section 1983 because the request for the arrest warrant was reasonable at the time it was made); Graham v. State, 779 So. 2d 604 (Fla. 2d DCA 2001) (noting that defendant had been sentenced for lewd and lascivious conduct in the presence of a child under sixteen, and for “failure to report, a second-degree misdemeanor in violation of” sections 39.201 and 205).

How Florida’s Convicted Felons Can Apply to Restore Their Civil Rights

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In March of 2011, the media quietly reported that the newly-elected Governor of Florida, Rick Scott, and his Cabinet changed the rules governing the application process for restoration of civil rights.  According to the report, the public and press was given little to no notice of the change in the rules, and little public comment was permitted before the Cabinet unanimously voted the changes into effect.  The most dramatic effect of the change: instead of being granted an automatic restoration of their civil rights, those convicted of non-violent crimes now have to wait for five years before being permitted to apply.  Those convicted of violent crimes, such as murder or DUI manslaughter, must wait seven years and will be required to attend a hearing to have their civil rights restored.  Florida’s newly-elected Attorney General, Pam Bondi, is reported to have suggested the change.  Florida’s new rules became some of the harshest in the nation.

Now, merely 8 months later, Governor Scott is reported to be reconsidering changing the rules yet again.  Scott announced his plans to reconsider the rules before meeting with members of the Florida Legislative Black Caucus in Tallahassee.  Although the report states that Scott’s motivation to reconsider changing the rules was the result of his meeting a felon who told him of his problems renting an apartment and finding a new job, the report also suggests that Scott’s change of opinion may have more to do with getting the votes he’ll need to secure his re-election than helping Florida’s convicted felons.  When the changes in the rules were announced, many people in Tallahassee were not happy with the new Governor, including the Florida Legislative Black Caucus.  And remember how he promised to get Florida “back to work”?  Well, being a convicted felon often leads to being unemployable.  A convicted felon cannot vote or hold certain occupational licenses, and sometimes, even if a job doesn’t require a license, employers don’t want to hire convicted felons who haven’t succeeded in getting their rights restored.  So, making it harder for a convicted felon to restore his or her civil rights in turn makes it harder for convicted felons to find work.  (Assuming there are jobs out there to be had!)

It will be interesting to see if the rules will be changed yet again.  But for now, the rules are generally as follows:

(1) Wait the required time period, either 5 or 7 years, depending on the nature of the crime committed, to apply to have rights restored.

(2) To apply for a pardon, you must wait 10 years.  To apply for authority to possess or own a firearm, you must wait 8 years.  No waivers will be permitted.

(3) Before applying, you must have successfully completed all aspects of your sentence, including fines, restitution, community service, and probation.

(4) Before applying, you cannot have been re-arrested during the waiting period.  You must be crime-free and arrest-free for the entire waiting period.

(5) Civil rights will not be automatically restored for any convicted felon.

(6) When applying, some applicants can apply for review “with a hearing,” and others will be required to apply for review “with a hearing.”

(7) If the Parole Board denies restoration of rights “without a hearing,” you may reapply for restoration “with a hearing.”  However, if the board grants or denies any form of clemency, you cannot apply for further clemency for at least 2 years.

(8) People convicted of a specific list of offenses may only apply for restoration of their rights “with a hearing.”  The list of offenses requiring a hearing is quite long, but generally includes sexual offenses, all drug trafficking offenses, all first and second degree drug offenses, possession of a firearm by a convicted felon, RICO, public corruption crimes, DUI manslaughter, DUI Serious Bodily Injury, leaving the Scene of Accident involving Injury or Death, and violent offenses.

(9) To apply, you’ll need to get a certified copy of your conviction, complete the required application, and send it in, making sure to keep a copy of everything for your own files because nothing will be returned to you.  (The ACLU website has an application here, but since it’s hard to tell if the application is current, you may want to use the Florida Parole Commission’s application here, instead.)  Follow all instructions.  As part of your application, it may help to include letters of recommendation from members in your community, such as any employers, leaders of your church, or leaders of any community organizations that you are involved with.  Letters from your own family members may not be given as much weight.

(10) After applying, be prepared to wait months before hearing back.  If your request requires a hearing, you will be scheduled to meet with an Examiner of the Florida Parole Commission for an interview.  The examiner may also contact people who sent letters of recommendation on your behalf, employers, or other individuals who may have information about you.

(11) If your case required a hearing, and your application is granted, an Executive Order will be prepared, signed by the Clemency Board members, and a copy mailed to you.  If your application did not require a hearing, you’ll be sent a Certificate of Restoration of Civil Rights in the mail.

Criminal defense attorneys and others wanting to learn more about how to restore civil rights in Florida can go to the website for the Florida Parole Commission or the Florida ACLU.  The Florida Parole Commission’s contact information is here.