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.
Well, voluntary bar commitments are heating up, which leaves less time for blogging, but I wanted to take a moment to pass along 2 cases worth noting for Florida’s criminal defense and criminal appeals attorneys.
First, DUI practitioners should read Brooks v. State, 2D11-2586, because the Court discusses the defense of necessity in DUI cases. According to the opinion, Brooks asked the trial court to instruct the jury on the defense because the evidence at trial showed that Brooks was compelled to drive (after some party time with his friends, of course) to save his friend’s ailing cat. Unfortunately for Mr. Brooks, the Court disagreed. Since the defense is so unusual, the Court relied on opinions from other jurisdictions. Brooks, slip op., pgs. 5-6. Ultimately, the Court stated that the defense of necessity is not available as a defense to DUI in Florida where the asserted emergency involves the threat of harm to an animal instead of a person.
Next is Matarranz v. State, SC11-1617. You know it’s going to be a long opinion when it opens with a quote from To Kill A Mockingbird, and ends with a quote from Thomas Jefferson. The short version: the Florida Supreme Court reversed the decision of the Third District, and remanded for a new trial because the trial court erred in denying cause challenges. In so doing, the Court clarified the law surrounding peremptory challenges and the removal of jurors for cause. With regard to the State’s preservation argument, the Court found that the issue had been sufficiently preserved because (1) defense counsel moved to strike the juror based on a thorough conversation regarding her ability to be fair and impartial; (2) after the trial court denied the challenge for cause, counsel had to use a peremptory challenge to strike the juror; (3) counsel exhausted all his peremptory challenges; and, (4) counsel thereafter identified and listed additional jurors he would have excused if provided with an additional challenge. See Matarranz, slip op., pgs. 13-17.
The Court next determined that the trial court reversibly erred by denying counsel’s challenge for cause. In so doing, the Court specifically observed that it’s OK for counsel to engage potential jurors in conversations regarding their partialities, biases, prejudices, and misconceptions when they result from a lack of familiarity with the judicial system, rather than from immutable opinions and attitudes that arise from personal experiences and firmly held beliefs. See slip op., pg. 22. In other words, where counsel has a concern about a potential juror’s misinformation and confusion regarding the law or process, counsel may engage the potential juror in an effort to rehabilitate the potential juror.
Finally, much of the Matarranz opinion consists of the majority opinion’s criticism of Judge LaBarga’s dissent, and the dissent’s criticism of the majority. If you happen to like to reading such verbal sparring, you’ll certainly enjoy this opinion. See pgs. 27-33 for the majority’s criticism of Judge Canady’s dissent, and pages 36-40 for the dissent.
I’ve been pretty busy lately, but I wanted to take a moment to let you know that on September 17, 2013, the Florida Supreme Court held oral argument in a very important criminal appeal, Henry v. State, No. SC12-578. The issue is whether sentencing a juvenile to a sentence which is a de facto life sentence violates the Eighth Amendment, in light of Graham v. Florida, 560 U.S. 48 (2010). The Florida Supreme Court Gavel to Gavel Video Portal page summarized the facts as follows:
Mr. Henry was convicted of sexual battery, kidnapping, robbery, carjacking and burglary. The crimes were committed when he was 17. He was tried as an adult and sentenced as a sexual predator to life in prison plus 60 years. While his appeal was pending, the U.S. Supreme Court ruled that juveniles sentenced for crimes other than homicide could not be denied the opportunity for parole. The trial court resentenced Mr. Henry to 90 years in prison. The Fifth District Court of Appeal affirmed the sentence.
I don’t know about you, but I find this issue extremely interesting. If you represent juveniles in criminal court, you really should take the time to view the recording of the oral argument by clicking here. Be sure to enter the case number in the lower right corner, under the “Search by Term” box. (For those of you who would rather have the Cliff’s Notes version, the majority of the Justices appeared to side with the attorney appearing for Mr. Henry, and the argument questions centered on the remedy, the lack of the possibility of parole, and what constitutes “meaningful review” under Graham). You can monitor the status of the docket by clicking here.
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.
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.
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.
Florida’s criminal defense and criminal appeals attorneys who handle a lot a traffic offenses will be happy to know that the Florida Supreme Court has reversed the Third DCA in Gil v. State, SC11-1983, on an issue that occurs all too often. I’m sure you’ve seen it before: just as in Gil, your client gets stopped for one reason or another, and during the stop, the officer determines that your client has been driving on a suspended license. As in Gil, your client will probably be charged with misdemeanor DWLS, under section 322.34(2). And if your client really lucky, he or she might also be charged as an Habitual Traffic Offender (HTO) under section 322.34(5). Is that proper? Not anymore. According to the Supreme Court in Gil, because DWLS under section 322.34(2) is a degree variant of HTO under section 322.34(5), the State Attorney can no longer charge your client with offenses under both sections–assuming, of course, that the offenses both arise from the same incident.
The Florida Supreme Court issued a pretty interesting opinion right before the Memorial Day weekend–Public Defender, Eleventh Judicial Circuit of Florida v. State, No. SC09-1181. I remember reading news reports about this case back in 2008 or 2009, and it seemed like a pretty big deal that the Public Defender for Miami Dade County was actually so overloaded that the entire office was filing motions in numerous non-capital felony criminal cases seeking to decline future appointments, arguing that excessive caseloads prevented the office from providing effective representation. Well, although the opinion left the most interesting matter unresolved (i.e., the question of whether to grant or deny the PD’s motion), the Court did nevertheless hold that the Public Defender could file such aggregate motions where there is an office-wide problem as to effective representation, and that motions to withdraw could be granted pursuant to Florida section 27.5303 so long as the PD shows that there is a substantial risk that the representation of one or more clients will be materially limited by representation to another client. See Public Defender, slip op., pgs. 25-35. However, because the case had been pending in the Supreme Court so long, the Court remanded the matter back to the trial court for a determination of whether the conditions underlying the PD’s motions to decline future appointments still exist.
What is the impact of this case? Well, if the trial court determines that the conditions at the Miami Dade Public Defender’s office are unchanged, and that the Public Defender’s motions should be granted, then that means the cases will have to be handled by other court-appointed counsel. In other words, more work (and fees) for other court-appointed criminal defense attorneys! Now, if we could just get the Florida Legislature to repeal the fee caps imposed last year for criminal defense and criminal appeals lawyers . . .
I hope you had a great Memorial Day weekend!
Florida’s criminal defense and criminal appeals attorneys who are interested in the developments of the Van Poyck death penalty case may want to know that I found the Supreme Court order requiring Van Poyck’s prior counsel to remain on the case. If you want to read it, click here. In response to the Order, two of Van Poyck’s previous attorneys have just filed a Motion to Vacate and Alternative Motion for Rehearing of the Supreme Court order.
If you have time and are interested in all the procedural drama, feel free to view the other orders and motions in the case by clicking 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?