Florida’s criminal appeals and criminal defense attorneys who represent juvenile offenders should be aware of an opinion released by the Florida Supreme Court on October 10, 2013. In Treacy v. Lamberti, SC12-647, the court reversed the 4th DCA’s denial of Treacy’s petition for writ of habeas corpus. In his petition, Treacy argued that since he could not be punished to life imprisonment for the offense charged, attempted murder, in light of Graham v. Florida, 560 U.S. 48 (2010), he was entitled to bond. The 4th DCA rejected his contentions not once, but twice. Only on appeal to the Florida Supreme Court did Treacy finally win the relief he sought- the right to be entitled to bond. This is a fairly straightforward opinion, so there’s not much for me to do other than pass it along, and urge you to keep this opinion handy for future reference.
The Florida Supreme Court has been back in session for a few weeks now, and it has recently issued 2 opinions on the proper application of section 812.025: Blackmon v. State, No. SC11-903, and Williams v. State, No. SC11-1543.
If you’ve been a criminal trial lawyer for any period of time, hopefully you’re familiar with section 812.025, which precludes a jury from finding a defendant guilty of both “theft and dealing in stolen property in connection with one scheme or course of conduct.” Blackmon and Williams are almost the same procedurally: both were charged with counts of theft and dealing in stolen property, and both were convicted of both counts after trial. The distinguishing factor is that in Blackmon, the trial court failed to instruct the jury on section 812.025 (Blackmon neither requested the instruction, nor objected to the court’s failure to so instruct the jury), while in Williams, the defendant’s request for the section 812.025 instruction was denied.
Both cases wound their way to the Florida Supreme Court. In Blackmon, after discussing the various approaches employed by the District Courts of Appeal, the Supreme Court held (1) the trial court should have instructed the jury on section 812.025; (2) section 812.025 precludes a court from adjudicating the defendant guilty of both dealing in stolen property and theft; and, (3) although the trial court erred in failing to instruct the jury in accord with section 812.025, the error was not fundamental, and a new trial was not required.
In Williams, after being convicted of both the theft and dealing in stolen property counts, the court dismissed the theft count, and adjudicated him on the dealing in stolen property count. On appeal, the Supreme Court answered two rephrased certified questions: (1) whether a trial court must instruct the jury pursuant to section 812.025 when both theft and dealing in stolen property charges are submitted to the jury; and, (2) whether the trial court’s denial of an instruction pursuant to section 812.025 requires the defendant to be given a new trial if the defendant is convicted of both theft and dealing in stolen property. In answering both questions in the affirmative, the Court went on to hold that (1) a trial court must instruct the jury pursuant to section 812.025 when both theft and dealing in stolen property counts are submitted to the jury; (2) the trial court erred in denying the defendant’s request for the section 812.025 instruction; and, (3) the trial court’s error in failing to instruct the jury pursuant to section 812.025 was not harmless, and a new trial was required.
The lesson here: when you and your client go to trial on charges of theft and dealing in stolen property, you should request the jury to be instructed pursuant to section 812.025. If you fail to do so, and the trial court fails to give the instruction, your client may not win a new trial on appeal.
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.
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.
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.
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.
The US Supreme Court issued an important, yet highly-divided opinion for criminal law and criminal appeals attorneys today. In Salinas v. Texas, No. 12-246, the Court held that prosecutors can use a person’s pre-arrest silence to questions posed by police as evidence of guilt. According to the opinion, since Salinas was not in custody at the time he voluntarily accompanied the police to the station, and because he did not affirmatively invoke the 5th Amendment privilege against self incrimination, his silence to some of the questions posed by police before his arrest could be used against him at trial.
The majority opinion, which was concisely written and is a mere 12 pages long, was written by Justice Alito, and joined by Chief Justice Roberts and Justice Kennedy. Justices Thomas and Scalia filed concurring opinions, which are equally, if not more concise than the majority opinion. But, as is so often the case, I find the dissent most persuasive. As noted by Justices Breyer, Ginsburg, Sotomayor, and Kagan, the mere fact that Salinas did not expressly invoke his 5th Amendment privilege is not necessarily controlling. Rather, as noted by the dissent, the question should be whether, given all the facts and circumstances of the case, it can be inferred that the individual has invoked his or her constitutional rights? See Salinas, slip. op., pg. 12 (Breyer, J., dissenting).
The takeaway from this case: in order to invoke your constitutional rights, you better speak up, because remaining mute is not enough. To read more about this case on SCOTUSblog, click here.
In Florida news, the Court in the Zimmerman trial has apparently ruled that the jurors will be sequestered. With all the press coverage of this case, I hope that the defense team is able to somehow pick a fair and impartial jury, and avoid the mess that occurred in the John Goodman case. See my previous post on the Goodman case here.
Well, after winning a new trial (while the case is on appeal, no less) John Goodman lost a key member of his criminal defense team, Robert Black. For the articles in the Palm Beach Post and Sun Sentinel, click here and here. Maybe this means that Goodman and the State have reached a plea agreement?
Meanwhile, the Palm Beach Post also reports that there’s quite a bit of legal havoc in the William Van Poyck death penalty case. Although I have not yet been able to locate the order issued by the Florida Supreme Court, the Court has apparently pulled a surprise move. Even as Van Poyck’s June execution date approaches, the Court appears to have appointed a team of lawyers from Palm Beach County to represent Van Poyck. For the article in the Palm Beach Post, click here.
To me, the Van Poyck case highlights just a fraction of what is wrong with Florida’s death penalty. If the case is still important enough for the court to appoint new lawyers, even at this late stage, why should the Governor be signing the warrant for Van Poyck’s execution? And why is it that after years of being unable to reach any sort of agreement with regard to amending the death penalty statute so as to render it constitutional, (why bother with that?), the Florida legislature is able to enact legislation that limits the appeals process, thereby actually speeding up the death penalty executions?