Category Archives: 5th DCA

Casey Marie Anthony v. State, No. 5D11-2357: Affirmed in Part, Reversed In Part, But Will it Help Her?

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Florida’s 5th DCA recently released its opinion in Casey Marie Anthony v. State, No. 5D11-2357.  In the criminal appeal, the Court reversed two of Anthony’s four misdemeanor convictions for providing false information to police officers, finding that the convictions for all four violate double jeopardy.  See Anthony, slip op., pgs. 11-15.  However, the Court also affirmed the trial court’s denial of Anthony’s motion to suppress the statements made to law enforcement during the investigation, finding that no Miranda warnings were required because Anthony was not in custody for purposes of Miranda.  See Anthony, slip op. pgs. 8-11.  If you happen to have any cases involving Miranda or double jeopardy issues, you should take a few minutes to read the 15 page opinion.

This is a good win for the criminal appeals team.  While the reversal will no doubt be of some help to Anthony, it’s unfortunate that the opinion has gotten little to no press coverage.  So in the end, how does the reversal really help Anthony, practically speaking?  Unless you live under a rock, you know that the press skewered Anthony during the pre-trial and trial proceedings.  But now that the trial is over, who is there to announce the good news that two of her four misdemeanor convictions were reversed?  Nobody.

Regardless of your opinion of the verdict, there is little dispute that Anthony’s case is just the latest example of what is wrong with today’s press coverage of criminal cases.  Now that Anthony has had her day in court, what does she have to show for it?  A bankruptcy petition.

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.

Florida’s 5th DCA: George Zimmerman Trial Judge Should Enter Order of Disqualification

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Although the Court admitted that the case presented a close call, Florida’s Fifth District Court of Appeal ruled today that the trial judge assigned to George Zimmerman’s criminal case should enter an order of disqualification.  Read the opinion in the case, Zimmerman v. State, No. 5D12-3198, here.  Zimmerman’s Petition for Writ of Prohibition, Appendix, and the State’s Response, can be read by clicking here.  Congratulations to Zimmerman’s defense team.  Criminal appeals and criminal defense lawyers know that the courts rarely grant such petitions.

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.

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.

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.