Florida Criminal Appeals Attorney Law

Appellate Law, Criminal Defense and Appeals and Post Conviction Relief in Florida Courts, Federal District Courts and the 11th Circuit

Category: U.S. Supreme Court

United States Supreme Court Hears Oral Argument in Kaley v. United States, 12-464: Government’s Use of Pre-Trial Asset Seizure and the Right to Counsel of Choice

Federal criminal trial and criminal appeals attorneys who follow this blog might remember that the US Supreme Court accepted cert in the case of Kaley v. United States, No. 12-464, a federal criminal case which arose from our very own Southern District of Florida.  (You can read my previous post here.)

Well, on October 16, 2013, the Court heard oral argument in the case, and if the Court’s questions posed during oral argument are any indicator, the case may be too close to call.  You can read the transcripts of the argument by clicking here.  If you prefer the audio recording, click here.

I don’t know about you, but I find this case extremely compelling because it so heavily impacts a defendant’s right to counsel of choice.  That the Government is permitted, by statute, to freeze the assets of a criminal defendant pre-trial, based only on a grand jury indictment, and that the defendant is not permitted to challenge to the evidentiary basis for Government’s asset freeze, is just astounding.  We’ll just have to wait and see what the Court decides, but when the opinion is issued, I know I’ll be looking for the magic word “reversed.”

Florida Supreme Court Hears Oral Argument In Case Involving Application of Graham

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.

Florida’s 4th DCA Applies New Analytical Framework for Claims of Assistance of Counsel

You may recall from two of my posts a few months ago that in Lafler v. Cooper, No. 10-209, and Missouri v. Frye, No. 10-444, the United States Supreme Court revised the analytical framework to be used for claims of ineffective assistance of counsel for failure to communicate plea offers.  (To see those posts, click here and here).  Well, Florida’s 4th DCA has now issued an opinion, Gribble v. State, 4D11-4352, addressing both of those US Supreme Court decisions, as well as the Florida Supreme Court decision of Alcorn v. State, 38 Fla. L. Weekly S397 (Fla. June 13, 2013).

In Gribble, the defendant appealed the summary denial of his 3.850 motion, wherein he alleged that his criminal defense attorney was ineffective for misadvising him of the maximum sentence he faced.  Based on counsel’s misadvice, Gribble rejected a plea offer.  After trial, he was convicted of driving on a suspended license, and the State requested habitualization.  The court sentenced Gribble to 8 years’ imprisonment, which is 3 years more than he was advised he could get.  According to Gribble, had counsel advised him that he could get 10 years as an habitual offender on the DWLS count, he would have taken the State’s 5 year plea offer.

On appeal, although the State conceded deficient performance by counsel, the State (predictably) argued that Gribble failed to prove that he was prejudiced because he was sentenced to only 8 years, which is less than the potential 10 years he faced.  However, the Court rejected the State’s argument, and noted that the correct analysis of the prejudice prong under Lafler, Frye, and Alcorn requires an examination of “whether the defendant has shown a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time, not whether he received the same sentence as what he was incorrectly advised.”  Gribble, slip op., pg. 2.  The court reversed the trial court’s summary denial of Gribble’s 3.850 motion, and remanded for an evidentiary hearing pursuant to Alcorn, Lafler, and Frye.

Changes at the Eleventh Circuit and 4th DCA

A big change has been announced for the Eleventh Circuit: Judge Rosemary Barkett will be leaving the Court.  According to a press release issued by the Department of State on August 23, 2013, Judge Barkett has been appointed to the Iran-United States Claims Tribunal in The Hague.  She will begin her new position on October 1, 2013.  Although she will no doubt excel in her new position, she will be sorely missed by the federal criminal defense and criminal appeals attorneys throughout the State of Florida and the rest of the Eleventh Circuit.

At least Justice Ruth Bader Ginsburg has no intention of leaving her position at the nation’s highest court.  At the age of 80, she is still running full steam ahead, and sees herself as the leader of the liberal opposition on one of the most activist courts in history.  For the article published in the Washington Post, click here.

Meanwhile, on a more local note, Governor Scott has appointed 2 new Judges to the 4th DCA in the last 5 months.  Judges Forst and Klingensmith were appointed in March and August of this year.  Since I’ve already seen their names in several opinions, they both seem to have hit the ground running.  You can see the official profiles of Judges Forst and Klingensmith here.  Best of luck to them in their new positions.

Florida’s Fourth DCA Reverses Dismissal of Charges Against Public Official, And The Court Still Struggles With Retroactivity of Padilla in Postconviction Cases

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.

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