Category Archives: Fla. Supreme Court

Still Waiting for Florida Supreme Court to Issue Opinions in State v. Hernandez and State v. Adkins

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It’s been quite a while, but still no word from the Court on two important criminal appeals cases.  If you recall, Hernandez concerns the issue of advising criminal defendants of the immigration consequences of their pleas, in light of the United States  Supreme Court decision, Padilla v. Kentucky.  Adkins involves the constitutionality of Florida’s drug possession statute, section 893.13.  The longer the wait, the more cases pile up in the courts, both at the trial and appellate levels.  The docket for State v. Hernandez, SC11-1357, and State v. Adkins, SC11-1878, can both be viewed at the Florida Supreme Court website.

The wait continues. . .

Florida Supreme Court Issues Opinions on Fellow Officer Rule, Administrative Suspension of Drivers Licenses in DUI cases, and Certiorari Review: State v. Bowers, No. SC09-1971, and Nader v. Florida Dep’t of Highway Safety and Motor Vehicles, No. SC09-1533

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Last week, the Florida Supreme Court issued two opinions which are important for different reasons.  The first, State v. Bowers, No. SC09-1971, is a real victory for criminal defense lawyers all over the State.  The second, Nader v. Florida Dep’t of Highway Safety and Motor Vehicles, No. SC09-1533, has important implications for appellate lawyers, both criminal and civil.

If you handle a lot of suppression hearings in traffic stop cases, you’re probably familiar with the fact that sometimes, the officer who stopped your client may not appear for the hearing.  If that happened, prosecutors might previously have relied on the fellow officer rule to elicit testimony from another officer who was on scene to testify at the hearing as to the basis for the traffic stop.  (I remember having to do that fairly often when I was a prosecutor in Broward.)  Now, as a result of State v. Bowers, prosecutors won’t be permitted to use the fellow officer rule as a way to circumvent hearsay rules in suppression hearings anymore.  It’s not a difficult or long opinion to read, so I won’t bother to rehash it here.  The bulk of the opinion focuses on the rationale underlying the fellow officer rule, as well as the proper purpose of the rule.

Attorneys who handle criminal appeals should take a minute to read Justice Lewis’ dissent in Bowers.  In my opinion, he makes a valid point: that the Second District Court of Appeal erred by dispensing with the applicable rules of procedure, and granted certiorari review in Bowers merely because it disagreed with the Fourth District Court of Appeal’s Ferrer opinion.  Justice Lewis stated:

The decision below is the equivalent of a canary in a coal mine, marking the beginning of the end of the constitutionally mandated limitations imposed on the jurisdiction of our district courts.  As discussed in my dissent to this Court‟s majority opinion in Nader v. Florida Department of Highway Safety and Motor Vehicles, No. SC09-1533 (Fla. Feb. 23, 2012), this case is an example of district courts doing precisely what the majority in Nader cautions against: “grant[ing] relief merely because [the district court] disagrees with the precedent from another district court.” Nader, slip op. at 22.  Here, the Second District acknowledges its disagreement with another district court, using that disagreement as its sole basis for granting second-tier certiorari review.  See Bowers, 23 So. 3d at 771 (“We recognize that by relying on [Ferrer v. State, 785 So. 2d 709 (Fla. 4th DCA 2001)], the circuit court applied existing precedent from another district.  Nevertheless, we grant certiorari relief on the basis that Ferrer misapplied the fellow officer rule and should be rejected.  See Dep’t of Highway Safety & Motor Vehicles v. Nader, 4 So. 3d 705 (Fla. 2d DCA 2009) (emphasis supplied).  This case, like Nader, “will destabilize Florida’s delicate judicial ladder, opening the flood gates of second appeals to our already overworked and overburdened district courts of appeal as described by those appellate courts.”  Nader, slip op. at 29 (Lewis, J., dissenting).

Bowers, SC09-1971, slip op. at pg. 15-16 (Lewis, J., dissenting).  Justice Lewis also complains that the Bowers majority failed to recognize such jurisdictional issue.

Don’t get me wrong.  I agree with the overall result of Bowers: that the fellow officer rule should not be used to circumvent hearsay rules at suppression hearings where the basis for the initial traffic stop is at issue (as opposed to probable cause for the subsequent arrest).  However, I feel just as strongly that the rules of procedure should not be disregarded by any court for mere political reasons.

Nader v. Florida Dep’t of Highway Safety and Motor Vehicles, No. SC09-1533, the opinion to which Justice Lewis refers, was issued the same day as Bowers, and has important implications for lawyers who handle appeals.  In Nader, the Court answered two certified questions:

1. DOES A LAW ENFORCEMENT OFFICER‟S REQUEST THAT A DRIVER SUBMIT TO A BREATH, BLOOD, OR URINE TEST, UNDER CIRCUMSTANCES IN WHICH THE BREATH-ALCOHOL TEST IS THE ONLY REQUIRED TEST, VIOLATE THE IMPLIED CONSENT PROVISIONS OF SECTION 316.1932(1)(A)(1)(a) SUCH THAT THE DEPARTMENT MAY NOT SUSPEND THE DRIVER‟S LICENSE FOR REFUSING TO TAKE ANY TEST?

2. MAY A DISTRICT COURT GRANT COMMON LAW CERTIORARI RELIEF FROM A CIRCUIT COURT’S OPINION REVIEWING AN ADMINISTRATIVE ORDER WHEN THE CIRCUIT COURT APPLIED PRECEDENT FROM ANOTHER DISTRICT COURT BUT THE REVIEWING DISTRICT COURT CONCLUDES THAT THE PRECEDENT MISINTERPRETS CLEARLY ESTABLISHED STATUTORY LAW?

Nader, SC09-1533, slip op. at pg. 2.  The Court answered the first question in the negative (ie, the Court held that the Department properly suspended Nader’s driver’s license because there was no violation of the implied consent law), but answered the second question in the affirmative (ie, the Court held that the Second DCA properly granted certiorari review).

If you handle a lot of DUI cases or administrative suspension cases, you should take a few minutes to read the first portion of Nader, as the Court recites many of the statutory provisions relating to the implied consent warning, as well as the administrative suspension of a driver’s license in refusal cases.  However, appellate attorneys, both criminal and civil, should read the second half of Nader, as the Court discusses various aspects of certiorari review.  As with the Nader opinion, Justice Lewis again criticizes the majority with a strong dissent on the issue of second-tier certiorari review.

Florida Supreme Court Still Hasn’t Issued an Opinion in State v. Adkins, No. SC11-1878 (Constitutionality of Florida’s Drug Possession Statute)

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For those of you who are waiting on the Florida Supreme Court to issue an opinion in the case involving the constitutionality of Florida section 893.13 (the drug possession statute), I just wanted to let you know that the Court has yet to issue an opinion.  Oral argument was held in December, and still no word.  The docket for State v. Adkins, No. SC11- 1878 can be viewed here.

Florida Supreme Court Issues Amended Jury Instructions

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Florida’s criminal defense lawyers may wish to take a moment to review the latest round of Standard Jury Instruction amendments issued by the Florida Supreme Court for criminal cases.  Dated February 9, 2012, the amended instructions address questions by the jury (number 2.13); Williams rule evidence (number 3.8(a)); the rules for deliberation (number 3.10); trespass (numbers 13.3, 13.4); organized fraud (number 14.8); contributing to the dependency of a child-impregnating a person under age 16 by a person 21 or older (number 16.4(a)); and, promoting or performing obscene acts (number 24.6).

The criminal defense attorneys of South Florida may wish to take particular note of the changes to the boating under the influence instructions.  Instructions numbered 28.14, 28.15, 28.16, and 28.17, which address general boating under the influence, boating under the influence causing property damage or injury, felony boating under the influence, and boating under the influence causing serious bodily injury, have all been amended.

I suppose the criminal defense attorneys in the Florida panhandle may want to take a look at the amended instruction on taking wild deer or turkey with a gun and light (number 29.14).  I can’t say I’ve ever even heard of that one!

Happy Valentine’s Day, South Florida!

I’ve Been Published . . . But I’m Still Waiting for Opinions on Constitutionality of Florida’s Drug Possession and Death Penalty Statutes

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Just a note to say that South Florida’s criminal defense lawyers are still in the “wait and see” mode for opinions to issue in two important cases.  First is State v. Adkins, SC 11-1878.  There, the Florida Supreme Court is considering the constitutionality of Florida’s drug possession statute, section 893.13.  According to the Florida Supreme Court docket, the last significant activity was oral argument and the filing of an amicus brief by the Florida Association of Criminal Defense Lawyers (FACDL, for short) last December.  If you’d like to read my comments on the oral argument, you can view them here.  Some of my other posts on the case can be seen here, here, and here.

Next is Evans v. Tucker, (originally filed as Evans v. McNeil), where the federal appeals court, the United States Court of Appeals for the Eleventh Circuit, may be addressing the constitutionality of Florida’s death penalty scheme.  (I say “may” because the parties’ briefs are not publicly available).  Although the public can access opinions released by the Court, the Eleventh Circuit court docket is not electronically available to the public, so information on that case is much more limited.  And, since a notice of appeal was filed in October of 2011, it may still be several months until an opinion issues.  If you care to monitor the Eleventh Circuit’s opinions as they are issued, you can click here.  (You can either look for the case style, Evans v. Tucker, or the lower court case number, 08-14402-Civ-JEM).  For some of my previous posts on the Evans case, click here and here.

A final note: if you are an attorney who is a member of FACDL, and you’re interested in these cases, you may want to check out an article I wrote in the Winter 2011 edition of the FACDL magazine, Florida Defender.  The article is printed at page 34 of Volume 23, No. 3.  You can also view it from my website by clicking here. (My article has been reprinted with the permission of the Florida Association of Criminal Defense Lawyers.)

Advising People of the Immigration or Deportation Consequences of Their Guilty Pleas: Will the Florida Supreme Court Accept Jurisdiction to Decide if Padilla v. Kentucky, 130 S.Ct. 1473 (2010), Applies Retroactively?

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In 2010, the United States Supreme Court decided Padilla v. Kentucky, 130 S.Ct. 1473 (2010), wherein the Court held that Padilla’s criminal defense lawyer provided ineffective assistance of counsel by failing to advise Padilla that his plea to charges of drug distribution would subject him to automatic deportation under 8 U.S.C. section 1227(a)(2)(B)(i).  The Court further held that in order to render effective assistance of counsel, a criminal defense attorney must advise his or her client whether a plea carries a risk of deportation.  See Padilla, 130 S.Ct. at 1486.

The issues surrounding pleas and immigration consequences are not new to Florida’s trial or appellate courts.  In 2006, four years prior to Padilla, the Florida Supreme Court held that claims of ineffective assistance of counsel based on counsel’s failure to warn of the immigration consequences of a plea must be filed within 2 years of the date that the judgment and sentence (or order withholding adjudication of guilt) become final.  See State v. Green, 944 So. 2d 208, 217-218 (Fla. 2006).  Since Padilla, the issues surrounding immigration or deportation consequences of pleas have remained on the forefront, and one of the latest issues is the retroactivity of Padilla.   In April of 2011, the Third District Court of Appeal issued a decision in Hernandez v. State, 61 So. 3d 1144 (2011), wherein the Court certified the question of the retroactivity of Padilla to be of great public importance.  Although the State of Florida and Hernandez filed their jurisdictional briefs with the Florida Supreme Court in September of 2011, the Court has yet to issue an opinion.  At the end of 2011, the Fourth District Court of Appeal held that Padilla does not apply retroactively.  See Rodriguez v. State, No. 4D10-2016, 2011 WL 5964343 (Fla. 4th DCA Nov. 30, 2011).  Since the issue of retroactivity has yet to be decided, I suppose that Florida’s criminal defense bar, and criminal defendants alike, will have to continue to wait to see what path the Court will choose.  The docket in Hernandez v. State, No. SC11-1357, can be viewed here.

Does the Florida Supreme Court Opinion in Del Valle v. State, SC08-2001, Have Any Implications for State v. Adkins, SC11-1878?

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On December 15, 2011, the Florida Supreme Court released an interesting opinion in Del Valle v. State, SC08-2001, wherein the Court  addressed revocations of probation for failing to pay restitution which is imposed as a term of probation.  Reading through the majority opinion shows that the majority was extremely concerned with the principle that people should not be imprisoned based on a mere inability to pay.  After examining the constitutionality of the restitution section at issue, section 948.06(5), the Court held that (1) before revoking probation for a failure to pay restitution, a trial court must inquire into a defendant’s ability to pay, and must make an explicit finding, based on the greater weight of the evidence, that the failure to pay was willful; (2) after the State introduces evidence of willfulness, including the defendant’s ability to pay, the burden shifts back to the defendant to prove an inability to pay; and, (3) it is unconstitutional to require the defendant to prove his or her inability to pay by clear and convincing evidence.

The Del Valle opinion is a good opinion to read for a few reasons.  First, the majority announced a change with regard to the operation of section 948.06(5), by striking down the clear and convincing standard.  (Note, however, that the majority opinion appears to have failed to specifically state what standard is to be applied.  I suppose the standard might be the preponderance of the evidence, as that is the standard that is lower than clear and convincing.)

Second, the dissenting opinions of Chief Justice Canady and Justice Lewis persuasively point out the analytical deficiencies of the majority opinion.  After I read their dissenting opinions, I re-read the majority opinion, and I have to say that the dissenting Justices made a few well-reasoned points.  (I’ll let you form your own opinions on the merits of their positions, though . . .)

Third, at page 25 of the majority opinion, the Court made a statement which caused me to want to review, for a second time, the oral argument recorded in State v. Adkins, SC11-1878.  Keep in mind that in Del Valle, the Court considered at length the element of willfulness of failing to pay restitution under section 948.06(5), and who should carry the burden of demonstrating willfulness as between the State and a criminal defendant.  In such discussion, the  Court made the following statement:

The absence of any recognition or mention of the element of willfulness as a first step in section 948.06(5) could alone render the statute unconstitutional.

Del Valle, SC08-2001, at pg. 25.  After reading such statement several times, I realized that this premise is really the crux of the issue in State v. Adkins, SC11-1878.  (For those of you who are not well versed on the issues, in Adkins, the criminal defense side is arguing that the drug possession statute, section 893.13, is unconstitutional because the statute lacks the element of knowledge (mens rea)).  For a few moments, my mind started to race.  I thought, “Wow!  Does this mean the Florida Supreme Court might actually be inclined to find that section 893.13 is unconstitutional because it lacks knowledge as an element of the crime?”

I immediately went back to review the archived oral argument, thinking that I might be on to something.  I was wrong.  After listening to the entire oral argument for a second time, I am still unable to decide which way I think the Court will go.  During the State of Florida’s portion of the oral argument, the Assistant Attorney General  was peppered with questions from Justices Pariente, Quince, Perry, Labarga, and Chief Justice Canady.  The questions focused on the issues of (1) who has to prove knowledge under section 893.13; (2) does the statute require the State to prove that the defendant had knowledge of the illicit nature of the substance; (3) does the availability of an affirmative defense cure any constitutional deficiencies of section 893.13; and, (4) what other statutes, either in Florida, or in other states, lack the element of knowledge?  However, when counsel for Adkins took the podium, other interesting points were made by Justices Pariente, Lewis, Quince, and Labarga, as well as Chief Justice Canady.  Such points included (1) whether possession of an illegal substance could ever be legal (implying that the knowledge element was perhaps not so important as Adkins would have the Court find); (2) whether people in possession of illegal substances generally know that the substances are illegal anyway; (3) is there really a problem with criminalizing the mere possession of an illegal substance, when the substance is illegal anyway; (4) are there any cases where a truly innocent person has ever been convicted under section 893.13; and, (5) practically speaking, how would the State of Florida ever be able to prove that a defendant had knowledge of the illicit nature of the substance?

I have to admit, those are some interesting, thought-provoking questions.  However, there are 3 portions of the oral argument which stand out most in my mind.  They are: (1) during the State of Florida’s argument, Justice Perry directly asked the Assistant Attorney General why shouldn’t the burden be on the State to prove that the defendant had knowledge of the illicit nature of the substance; (2) during the defense side of the argument, Justice Lewis stated to counsel for Adkins that he is not so sure that Adkins is able to sustain a facially-based challenge to the constitutionality of the statute, and that perhaps the better approach would have been for the defense to raise an “as applied” challenge; and, (3) during the defense side of the argument, after counsel for Adkins argued that section 893.13 is unconstitutional because it lacks a mens rea element, Chief Justice Canady forcefully interrupted, asking “where is that written?!,”  and then continued his disagreement with Adkins’ position, noting that the Legislature is free to define the elements of a statutory offense.

Going back to my original question, the title of this post, does the Florida Supreme Court opinion in Del Valle v. State, SC08-2001, have any implications for the Adkins case?  Initially, I thought that yes, the Del Valle opinion did, and that perhaps the implication was that the majority of the Justices might be leaning in favor of Adkins (i.e., declaring section 893.13 unconstitutional).  However, after listening to the Adkins oral argument again, and considering the questions posed to the defense, I am not so sure that’s the case.  The only thing of which I am sure is that whatever opinion is issued in Adkins, it will not be unanimous, and that it will likely contain one, if not more than one, dissenting opinion.

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.

Notes on Oral Argument in State v. Adkins, SC11-1878

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For those of you who were not able to take the time to listen to the live oral argument in the Florida Supreme Court in State v. Adkins, SC11-1878, on December 6, 2011, you can listen to the archived oral argument by clicking here.

I also came across a few highlights I wanted to pass along.  A December 6, 2011, news release on the website for the National Association of Criminal Defense Lawyers states in relevant part,

In today’s argument in Adkins, the attorney for the State of Florida concluded her remarks with a final appeal to the justices to appreciate the importance of this statutory “tool” provided by the legislature in the context of drug offenses because “this is a war.”

“Of course, there is no drug war exception to the constitutional guarantee of due process, nor should there be,” explained NACDL Executive Director Norman L. Reimer. “And there can be no due process under Florida’s felony drug statute so long as its premise remains that an accused is presumed guilty until proven innocent. That approach poses a grave and unprecedented threat to liberty.”

Additional commentary on the oral arguments can also be found on the website for Families Against Mandatory Minimums, by clicking here.  I’ll quote the relevant portion for you:

Florida argued first. Justice Barbara Pariente immediately began asking the state’s attorney about the breadth of the current law, using hypothetical situations about innocent behavior that would be considered criminal conduct under it.  During the defense presentation, Chief Justice Charles Canady argued that the statute is reasonable in the vast majority of cases.  He pointed out that defendants can raise lack of knowledge as an affirmative defense, which should be sufficient to protect the truly innocent. Justice Jorge Labarga noted that the affirmative defense isn’t much help in practice because juries are still instructed to “presume” a defendant knowingly possessed an illegal substance.

The defense attorney urged that the availability of the affirmative defense is not sufficient to make the statute constitutional. He argued that because it requires a defendant to produce evidence of innocence, rather than requiring the state to provide evidence of guilt, it unconstitutionally denies a defendant’s Fifth Amendment right against self-incrimination. Finally, the defense argued that the statute as written requires citizens to examine every substance they possess to ensure that the substance is illegal. That requirement, he argued, is unreasonably burdensome and therefore unconstitutional.

In response, Florida’s attorney stated that “every citizen has been drafted” into the “war on drugs,” and the requirement that everyone know they aren’t in possession of illegal drugs is not an unreasonable burden.

I agree with the assessment of Greg Newburn, Florida Project Director Families Against Mandatory Minimums: there is simply no way to predict which way the Florida Supreme Court will go on this.  Since this case was fast tracked for oral argument, hopefully an opinion may come sooner rather than later.  However, if the Justices are divided, as they often are in important criminal cases, it may take more time than Florida’s criminal defense attorneys would like.

Florida Supreme Court to Hear Oral Argument in State v. Adkins, SC11-1878, on December 6, 2011

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Just a head’s up to all the South Florida criminal defense attorneys who are following the hot topic of the constitutionality of Florida’s drug possession statute, section 893.13: the Florida Supreme Court will hear oral argument in the case of State v. Adkins, SC11-1878, at 9:00 am on December 6, 2011.  For those who would like to watch the oral argument live, you may view it online by clicking here.