Appellate Law, Criminal Defense, Criminal Appeals & Criminal Appellate Review and Post Conviction Relief in Florida Courts, Federal District Courts and the 11th Circuit for Criminal Attorneys, Criminal Lawyers & Appellate Lawyers
I may have used a lot of acronyms in the title, but I bet I’ve got your attention, right? It’s Wednesday, which is opinion day in Florida’s 4th DCA. Although most of the opinions in the criminal appeals were in favor of the State, I came across one that’s worth a quick note.
In Cosme v. State, 4D09-1650 and 4D09-1652, the Court reversed a sentence imposed after the defendant was found guilty of violating his probation. Although Cosme had been given the benefit of a YO sentence when he was originally sentenced, after finding him guilty of the VOP, the trial judge revoked his probation and sentenced him to concurrent life sentences on all 3 counts. In so doing, the trial judge apparently listened to the statement of the ASA, who informed the judge that she could sentence Cosme to the maximum sentence of life, “without the constraints of the criminal punishment code.” Slip op., pg. 1.
After Cosme was sentenced, the ASA prepared a scoresheet, showing that Cosme’s lowest permissible sentence was 12.25 years, and handed it to the trial judge. The judge then told the ASA to note on the scoresheet that the Guidelines weren’t applicable because Cosme was originally sentenced as a YO. The trial judge signed the scoresheet, and the case eventually came up on appeal to the 4th DCA.
Notwithstanding the fact that Cosme and his counsel failed to object, the 4th DCA nevertheless reversed because the trial judge pronounced the sentence before being provided a scoresheet, and because both the ASA and the judge stated that the guidelines were not applicable when in fact they were. Slip op., pg. 2. Although the 4th DCA acknowledged that the 6- year cap doesn’t apply to a YO sentence imposed following a substantive VOP, the Court emphasized that reversal was required in Cosme’s case because the record did not conclusively show that the same sentences would have been imposed had the trial judge considered a correct scoresheet before imposing sentence.
Of note, Cosme’s case originates in Broward County. For those of you who practice in Broward, you may want to be on the lookout for this type of sentencing issue the next time you’re representing someone who had been given a YO sentence and then gets charged with violating his or her probation. If the judge fails to consider a properly completed scoresheet before imposing sentence, you may have a good basis for appeal pursuant to Cosme.
The Florida Supreme Court recently issued an opinion adopting the recommendations of the JQC, and disciplined the Judge Shea, a Circuit Court Judge for the Ninth Judicial Circuit. I thought I’d pass this along because if you are criminal defense attorney who has cases pending before Judge Shea, or if you handle criminal appeals of any of Judge Shea’s cases, you should probably be aware of some of his inappropriate behavior (that is, if you’re not already). In the opinion, Judge Shea stipulated to five charges:
[1.] In the summer of 2007, Assistant State Attorney Sarah Freeman was sitting in the jury box with two other attorneys making notes on her pretrial docket while [Judge Shea addressed] a matter that was not hers. When [Judge Shea] observed her shake her head, [Judge Shea] got up out of [his] seat, stood behind [his] chair and screamed loudly at her for what [he] perceived as disrespectful conduct.
[2.] In 2007, during an off-the-record sidebar argument by Assistant State Attorney Camelia Coward regarding a plea to the bench, [Judge Shea] remarked to the opposing attorney, “Do you know what I do when my wife and I disagree? I just let her talk.” [Judge Shea] continued, “I find that it is best just to let her talk until she’s finished.” [Judge Shea] then indicated that, once she is finished, you can do what you want anyway.
[3.] On August 18, 2009, in State [v.] Habeych Case No. 48-2008-CF-12888-0, [Judge Shea] sentenced Mr. Habeych without his attorney present. This was done over his objection. Mr. Habeych was charged with Trafficking in Hydromorphone, which carries a minimum mandatory sentence. [Judge Shea] imposed the mandatory minimum sentence. [Judge Shea] then told [Mr. Habeych’s] father that if he had any questions that he could go upstairs to the courtroom where the defense lawyer was appearing before another judge.
[4.] In State v. Bullock, Case No. 48-2009-CF-8037-0, [Judge Shea] granted a Judgment of Acquittal on one of the counts of an Information alleging Possession of a Firearm by a Convicted Felon. That count had been severed for a separate trial from another count of the Information charging the defendant with Grand Theft of a Motor Vehicle. At the subsequent trial call, on April 12, 2010, when Assistant State Attorney Stephen Brown announced his intention to proceed on the remaining count, [Judge Shea] mistakenly believed the State did not have a good faith basis to proceed on that charge. [Judge Shea] became visibly angry and reprimanded the attorney in open court by saying his duty was to act in an ethical manner and to follow his oath as an attorney rather than merely follow office policy guidelines of the State Attorney’s Office. [Judge Shea] then ordered him into the jury room where [Judge Shea] continued to berate his ethics. To [Judge Shea’s] credit, when [Judge Shea] realized [his] mistake, [Judge Shea] then apologized.
[5.] These repeated actions constitute conduct unbecoming a judicial officer and lack the dignity appropriate to judicial office, with the effect of bringing the judiciary into disrepute.
I think it goes without saying that the Judge’s behavior is unacceptable, and I’m glad to see that he was disciplined. So, what discipline did the Supremes dish out for the Judge? A public reprimand accompanied by letters of apology and continuing mental health treatment.
I’m not sure if you’re following the George Zimmerman case, but I thought I’d share a report I saw. Apparently, his defense team has decided to forego the pre-trial hearing on the Stand Your Ground defense. If you’re a Florida attorney who handles criminal defense work or criminal appeals, then you probably know that the pre-trial hearing isn’t necessarily required. According to the news reports, the defense team has decided to just to go to trial and perhaps raise it there. I suppose it’s a perfectly sound strategy, but for some reason, it just seems more risky to me. What do you think? (To see my latest post on possible amendments to the Stand Your Ground defense, click here).
Being that it’s Wednesday, I though you might need a little laugh. A CNN Money report had a funny list of quotes from none other than Martha Stewart in her latest round of litigation. I can almost see the smirk on her face as I read some of the lines. . . .
Florida’s white collar criminal defense and criminal appeals attorneys might be interested in a bill that’s currently being considered by the Florida House of Representatives. HB 691, which was taken up by the Criminal Justice Subcommittee as of February 20, 2013, adds some new, and very important language (in bold):
(2)(a) Any person who willfully and without authorization fraudulently uses, or possesses with intent to fraudulently use, personal identification information concerning an individual without first obtaining that individual’s consent, commits the offense of fraudulent use of personal identification information, which is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Unless the person flees or another circumstance makes it impracticable, a law enforcement officer shall, before any arrest for an offense under this subsection, afford the person an opportunity to explain his or her possession or use of personal identification information and how the use or possession is not willful and without authorization. A person may not be convicted of an offense under this subsection if the law enforcement officer did not comply with this procedure, or if it appears at trial that the explanation that the person gave is true and, if believed by the officer at the time, would have indicated that there was no violation.
I don’t know about you, but I find that absolute defense language highlighted above very interesting. A similar version of the bill is currently in the Florida Senate (SB 840). Unfortunately, the Senate version does not contain the highlighted language contained in the House version. I guess we’ll just have to wait and see which version of the amendment, if either, passes.
Finally, a bit of common sense has reached the Florida legislature. According to the Sun Sentinel and WPTV.com, flashing your headlights to alert other drivers of speedtraps will no longer be illegal. I could hardly believe that it was illegal, until I read this article.
If you’re a criminal defense attorney who handles a lot of traffic ticket cases, be sure to check out Fla. Stat. 316.2397(7), effective January 1, 2013, for the change.
Since it’s the holiday season, news in the criminal appeals arena has been a little slow, but I thought I’d pass along a few items.
First, John Goodman’s appeal is proceeding along, with the State of Florida filing its Answer Brief on December 26, 2012. Although the Answer Brief is not available electronically, you can read a summary of the State’s arguments in the Palm Beach Post by clicking here. The 4th DCA docket for the case, 4D12-1930, can be viewed by clicking here. Although Goodman’s attorneys have requested oral argument, the Court has not yet ruled on the request. From my experience, the 4th DCA does not often grant requests for oral argument. However, perhaps the high-profile nature of the case might influence the Court to grant the request.
Next, Broward County is considering changing its name to Lauderdale County. According to the Sun Sentinel, the goal of the change would be to promote tourism. Would a name change really make that much of a difference?
Finally, the bad news. Wyatt Cenac is leaving the Daily Show with Jon Stewart! To view some of the top Wyatt Cenac moments, click here, here, and here.
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.
It’s not exactly CM/ECF yet, but it’s great to see that the Florida Supreme Court has finally issued two new Administrative Orders implementing e-filing on a rolling basis, and requiring mandatory e-service.
Administrative Order number SC11-399 provides that e-filing will become effective and mandatory in the civil, probate, small claims, and family law divisions of the trial courts, as well as for appeals to the circuit courts in these categories of cases, on April 1, 2013, at 12:01 a.m. Next, e-filing will become effective and mandatory for criminal, traffic, and juvenile courts, as well as as for appeals to the circuit court in these categories of cases, on October 1, 2013, at 12:01 a.m. Finally, for appeals to the District Courts of Appeal and Florida Supreme Court, e-filing will become effective and mandatory on October 1, 2012, at 12:01 a.m. However, the trial court clerks will not be required to electronically transmit the record on appeal until January 1, 2013, at 12:01 a.m. Self-represented parties and self-represented nonparties can be excused from the requirements of the Rule.
Administrative Order number SC10-2101 provides, generally, that all documents required or permitted to be served on another party must be served by e-mail. There are exceptions to the Rule for attorneys who demonstrate that he or she has no e-mail account and lacks access to the Internet at the lawyer’s office. The new rule takes effect on July 1, 2012.
It’s just been reported that George Zimmerman’s wife has been arrested and charged with perjury in connection with the testimony she gave at Zimmerman’s bond hearing. For the news reports, click here and here. I suspect that many of South Florida’s criminal defense and criminal appeals attorneys would agree that perjury charges are not often pursued because they can be difficult to prove. However, in some cases, criminal perjury charges may be filed as leverage for plea negotiations. Hopefully, the prosecutors have not charged Zimmerman’s wife for the purpose of extracting a plea out of Zimmerman. We’ll just have to wait and see what happens with Mrs. Zimmerman’s case. For a link to Florida’s criminal perjury statutes, click here.
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.