Category Archives: 5th DCA

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.

Florida Supreme Court Opinions Released October 27, 2011:Jury Instruction Errors, An Evidentiary Hearing on Possible Brady and Giglio Violations, and No More Filings Allowed for a Frequent Filer

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This week has just flown by.  Since I am a bit pressed for time, I decided to make a quick report of a few of the opinions released by the Florida Supreme Court on October 27, 2011.

1.)  The Court reversed six cases based on jury instruction issues.  In each of the cases, the Court remanded the cases back to the District Courts of Appeal for consideration and application of the recent opinion of State v. Montgomery, 39 So. 3d 252 (Fla. 2010) (holding that because Montgomery, who had been convicted of second-degree murder, was entitled to an accurate jury instruction on the necessarily lesser included offense of manslaughter by act, the use of the then-standard jury instruction on manslaughter by act constituted fundamental reversible error because it erroneously required the jury to find that Montgomery intentionally caused the death of the victim).  The cases reversed include Zeigler v. State, No. SC09-2082, Valdes-Pino v. State, No. SC10-63, Burgos v. State, No. SC10-78, Bonilla v. State, No. SC10-141, Solano v. State, No. SC10-1350, and Francis v. State, No. SC10-1881.

2.) In Mungin v. State, No. SC09-2018, a death penalty case, the Court reversed a trial court’s order which had summarily denied a successive motion for postconviction relief.  In a 22 page opinion, the Court remanded Mungin’s Giglio and Brady claims back to the postconviction court for an evidentiary hearing.  Although the opinion is fact driven, it is still worth reading for the Court’s discussion and application of Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972).

3.) Finally, in James v. Tucker, No. SC11-745, the Court banned Mr. James from filing any more pleadings attacking his conviction unless they are signed by a member in good standing of the Florida Bar.  Apparently, Mr. James has become what some criminal defense attorneys refer to as a “frequent filer,” and the Court said “enough is enough.”

The Florida Innocence Commission Reviews Phenomenon of Mistaken Identification in Criminal Cases

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The Florida Innocence Commission, whose purpose is to conduct a comprehensive study of the causes of wrongful conviction, was created by Florida Supreme Court Administrative Order AOSC10-39, issued on July 2, 2010.  For those Florida criminal defense attorneys who are interested in the hot topic of eyewitness mistaken identification, or “misidentification,” which is the term used by some Courts, a copy of the Commission’s June 2011 Report should provide some interesting and insightful reading.

First, by way of background, you may wish to review one of my previous posts on the topic of eyewitness mistaken identification in Florida, Texas, and other states here.

I strongly urge Florida’s criminal defense attorneys to read the Commissions’ June 2011 report.  Not only does it summarize the testimony of one of our country’s top experts in the area of eyewitness mistaken identification, Professor Gary L. Wells of Iowa State University, but the report also provides valuable insight into the legislative process and current police agency standards for police lineups.  Although the Commission voted in May of 2011 that Florida law enforcement agencies should adopt uniform Standards for Florida State and Local Law Enforcement Agencies in Dealing with Photographic or Live Lineups in Eyewitness Identification, and Commentary and Instructions, as well as to request consideration of revising Florida’s current jury instructions to account for cases of eyewitness mistaken identification, it should be noted that not everyone in the State of Florida is in favor of mandating the implementation of uniform, statewide procedures to govern the administration of police lineups.  Who could possibly oppose uniform standards?  Why, various law enforcement agencies themselves, and the Florida Prosecuting Attorneys Association.  You can read all about it in the Commission’s report.

The Commission’s next hearing on this topic, and others, will be held on Monday October 12, 2011, at Orlando’s Rosen Hotel.  Members of Florida’s Association of Criminal Defense Lawyers are encouraged to attend if they are able.

Florida’s Second District Court of Appeal Asks Florida Supreme Court to Immediately Review the Constitutionality of Florida’s Drug Possession statute, section 893.13

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In an extremely rare move, Florida’s Second District Court of Appeal issued an Order today, September 28, 2011, asking the Florida Supreme Court to immediately decide the constitutionality of Florida’s drug possession statute, section 893.13, in light of Shelton and other cases from around the State of Florida.  You can view the Second DCA’s order here.  Stay tuned!

Marrero v. State: The State Must Prove Specific Monetary Amount of Damage to Convict on Charge of Felony Criminal Mischief

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In Marrero v. State, No. SC09-2390, Leonardo Marrero had been charged with criminal mischief.  At trial, the State failed to prove the specific amount of damages, prompting Marrero to raise a motion for judgment of acquittal.  The trial court reserved ruling on the motion, and the case went to the jury.  After the jury asked the court whether it could find Marrero guilty absent proof of a specific monetary amount of damages, the trial court instructed the jury according to the standard instructions applicable to criminal theft.  The jury convicted Marrero of felony criminal mischief based upon a finding that the property was valued at $1,000.00 or more.  The trial judge thereafter encouraged Marrero to file a motion for new trial, noting her discomfort at the fact that the State had failed to prove the amount of damages.  On appeal, the Third District Court of Appeal affirmed Marrero’s conviction for felony criminal mischief, reasoning that “a trial court may conclude that certain repairs are so self-evident that the fact-finder could conclude based on life experience that the statutory damage threshold has been met.” (quoting T.B.S. v. State, 935 So. 2d 98, 99 (Fla. 2d DCA 2006)).

In its opinion issued on September 15, 2011, the Florida Supreme Court reversed the Third District’s application of the “life experience” exception.  After reasoning that the State has the burden of proof as to each element of the crime, and that the amount of damage is but one element of felony criminal mischief, the Court next turned its attention to the “life experience” exception.  The Court observed that application of the of the “life experience” exception would be problematic because the “life experience” of one jury member necessarily differs widely from the “life experience” of any other jury member.  The Court also noted that the Third District erred in extending the “life experience” exception to Marrero’s criminal mischief case because the exception had only previously been applied to criminal theft cases.  Ultimately, the Court reversed Marrero’s conviction for felony criminal mischief, and remanded for the trial court to enter a judgment for misdemeanor criminal mischief.

After first reading this opinion, I thought it was rather unremarkable.  In my view, it is so obvious that the State has the burden of proving beyond a reasonable doubt every element of a criminal offense that the Court should hardly have to waste time repeating that proposition.  But then, the more I thought about this case, the more irritated I became.  Why is it that several of Florida’s District Courts of Appeal would discard such a basic principle of our criminal justice system?  Why allow prosecutors to avoid their constitutional duties?  Unfortunately, I don’t have the answers to those questions.  All I can say is that at least the right decision was made for Leonard Marrero, and that the next time this happens to someone else, this Florida criminal appeals attorney will be ready to take up the issue.

Palm Beach County Court Follows Proper Procedure, Dismisses First Degree Murder Charges Pursuant to Florida’s “Stand Your Ground” Statute

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The Sun Sentinel reports that Palm Beach County Circuit Court Judge Oftedal recently granted a motion to dismiss first degree murder charges that had been filed against a 65 year-old individual named Michael Monahan.  Although the Order is not publicly available, the Sun Sentinel reports that Judge Oftedal concluded that the case involved “a clear case of justified force” under Florida’s “Stand your Ground” statute.  As a result of the Order, Monahan was released from jail.

While the Court’s Order may not sit well with the family of the victim, the fact remains that the Court followed the procedure which is required by law.  For starters, let’s consider what the statute actually says.  The Stand Your Ground statute provides,

776.032 Immunity from criminal prosecution and civil action for justifiable use of force.—

(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer.  As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

Basically, section 1 of the statute states that if a person is justified in using force under sections 776.012, 776.013, or 776.031, to defend himself or another, his residence, or a member of his family or household, then that person is generally immune from criminal prosecution.  So, the issue becomes: who determines whether the force used was justified?

In a previous post, I noted that, pursuant to the Florida Supreme Court case of Dennis v. State, 51 So. 3d 456, 457 (Fla. 2010), courts (that is, Judges) are required to make that determination whenever a defendant files a motion to dismiss in reliance on the Stand Your Ground statute, and that the determination is to be made prior to any trial.  The Sun Sentinel report on Michael Monahan’s case shows the practical effect of how the Dennis decision requires courts to handle motions to dismiss filed under the Stand Your Ground Statute.  If a court grants the motion to dismiss, the Defendant goes free.

The Florida Supreme Court only issued the Dennis decision in December of 2010.  Since the statute can be such a strong weapon in the criminal defense arsenal, I think it’s a pretty safe bet that Florida criminal defense attorneys will continue to file motions to dismiss based on the Stand Your Ground statute in cases where their client’s use of force becomes an issue.  Even if a motion to dismiss is denied, the mere filing of the motion should preserve the issue for any appeal down the road.

Several Palm Beach County Judges Find that Florida’s Drug Possession Statute, Section 893.13, is Constitutional

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The Palm Beach Post reports several Judges in the Fifteenth Judicial Circuit in and for Palm Beach County have recently denied motions to dismiss, finding that Florida’s drug possession statute, section 893.13, is constitutional.  According to the report, the Judges who found the statute constitutional are Judges John Kastrenakes, Judge Stephen Rapp, Judge Edward Fine, and Judge Richard Oftedal.

Under the present version of section 893.13, prosecutors are not required to prove that criminal defendants have knowledge of the illicit nature of the drugs.  You may recall from my previous posts on this issue, that Judge Mary Scriven and Judge Milton Hirsch ruled that the elimination of the knowledge requirement rendered the statute unconstitutional.  However, according to the Palm Beach Post report, Judge Katrenakes came to the exact opposite conclusion, and reasoned that the Florida Legislature basically knew what it was doing when it eliminated the knowledge requirement.

The fact that Judges across the State are reaching opposite conclusions as to the constitutionality of section 893.13 can be frustrating for criminal defendants and their attorneys right now.  While one attorney may win a motion to dismiss for his or her client, another attorney may file the exact same motion in another case assigned to a different Judge and lose.  How does that happen?  Well, each Judge has the independence to rule however they fit, until there is a controlling appellate decision.  And since there is no controlling appellate decision at this time, the conflict is likely to continue.

Ultimately, conflict between the Judges will turn out to be a good thing.  Why?  Conflict between the Judges at the trial court level is an indicator that there could be conflict at the next stage: appeals.  And conflict at the appeals stage is a very good thing, because if there is conflict between Florida’s District Courts of Appeal, then the Florida Supreme Court may be forced to take the case to resolve the issue for the entire State.

Dennis v. State, 51 So. 3d 456 (Fla. 2010): Pre-Trial Evidentiary Hearing is Required for Motions to Dismiss Raising Immunity From Prosecution Under Florida’s “Stand Your Ground” Statute, Section 776.032

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In December of 2010, the Florida Supreme Court held that when a Defendant files a motion to dismiss claiming immunity from prosecution under Florida statute section 776.032, otherwise known as Florida’s”Stand Your Ground” statute, the trial court is required to hold a pre-trial evidentiary hearing to “decide the factual question of the applicability of the statutory immunity.”  See Dennis v. State, 51 So. 3d 456, 457 (Fla. 2010).  According to the Court, while a motion to dismiss based on section 776.032 should properly be filed pursuant to Fla. R. Crim. P. 3.190(b), the trial court is still required to hold an evidentiary hearing even if the motion to dismiss is mistakenly filed pursuant to Fla. R. Crim. P. 3.190(c)(4).  Finally, the Court noted that any motions to dismiss mistakenly filed under Rule 3.190(c)(4) should be treated as having been properly filed under Rule 3.190(b).  Where the trial court fails to hold a pre-trial evidentiary hearing, any appeal of the failure to hold the hearing should be analyzed under the “harmless error test” of State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986).  See Dennis, 51 So. 3d 464 (noting that an error is harmless if “the error complained of did not contribute to the verdict or, alternatively stated,  . . . that there is no reasonable possibility that the error contributed to the conviction.”)

This issue continues to be a hot topic.  On August 31, 2011, Florida’s Fourth District Court of Appeal was the latest court to issue an opinion on the issue.  See Govoni v. State, No. 4D09-2371 (remanding case for trial court to conduct evidentiary hearing pursuant to Dennis) (slip opinion).