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

Noel v. State, No. 4D10-1765: Florida’s 4th DCA En Banc Opinion Holds That Trial Judge May Consider Defendant’s Ability To Pay Restitution During Initial Sentencing Proceedings

In an opinion that’s created a lot of discussion among criminal defense and criminal appeals attorneys alike, Florida’s 4th DCA has held, in an en banc opinion, that the trial judge may consider a defendant’s ability to pay restitution when fashioning a sentence.  See Noel v. State, 4D10-1765.

Noel was convicted after a jury trial of conspiracy to racketeer and first degree grand theft, arising from a scheme to steal advance fees from victims who sought to obtain funding for their business projects.  Noel, slip. op., pg. 1.  At the sentencing hearing, the court judge asked Noel if he was in a position to make any up front restitution.  Noel stated that he was, and that he could pay between $20,000 to $40,000, “plus other things.”  Slip. op., pg. 2.  The State requested a sentence of 15 years, while the defense requested a sentence at the low end of the guidelines, 3.8 years.  The court sentenced Noel to 10 years in prison followed by 10 years of probation, with the provision that if Noel made restitution of $20,000 within 60 days, his prison sentence would be mitigated to 8 years.  As a condition of probation, the court ordered Noel to pay $650,000 in restitution to the victims, with 15% of his net pay going towards restitution.  Slip op., pg.2.

In the forcefully written opinion, the majority goes to great lengths to distinguish DeLuise v. State, 72 So. 3d 248 (Fla. 4th DCA 2011), where the 4th DCA held–only two years ago–that it is fundamental error for the court to offer to mitigate a lawful sentence in exchange for the defendant paying some restitution for the victims of a crime within 60 days of the sentence.  The court also emphasizes the State’s interest in securing restitution, and declares that the trial judge should always have the ability to  impose a sentence which is more lenient than the statutory maximum” for whatever reason.”   Noel, slip. op., pgs. 2-11.

While many agree that  the judge should have the ability to impose a sentence less than the statutory maximum, the dissenters correctly note that the trial judge cannot simply do so “for whatever reason.”  Rather, the court can only consider a defendant’s ability to pay restitution within the parameters of the United States Constitution.  And, as noted by the dissenters, the net result of the majority opinion is that a defendant who is unable to pay restitution up front may be sentenced to a longer term of incarceration than a defendant who is able to pay restitution.

This is by no means settled.  A review of the 4th DCA docket shows that the Public Defender has filed a motion for rehearing, to which the State of Florida has responded.  We’ll have to wait and see what happens next.

Donawa v. United States Attorney General, No. 12-13526: Eleventh Circuit Holds that Possession of Cannabis With Intent to Sell or Deliver Under Florida Statute 893.13(1)(a)(2) is Not Aggravated Felony For Immigration Purposes

My commitments to local voluntary bar associations have been keeping me busy, but I wanted to take a moment to pass along an opinion that the Eleventh Circuit issued on November 7, 2013.  In Donawa v. Attorney General, No. 12-13526, Donawa appealed an order rendered by the Board of Immigration Appeals which determined that Donawa was not eligible for cancellation of his removal (ie, deportation) because he committed an aggravated felony.  On appeal to the Eleventh Circuit, the Court agreed with Donawa and reversed.  Slip. op., pg. 2.

Obviously, if you defend federal criminal charges, then this 14-page opinion is a must read because of the potential impact on enhancements and penalties under other federal criminal statutes.  However, even if you only practice in State court, you should read it as well, if only for use as possible persuasive authority in other contexts.

The issue addressed by the Court was narrowly framed: whether Donawa’s conviction under section 893.13(1)(a)(2), as amended by section 893.101, is an aggravated felony as a matter of law.  In its analysis, the Court restated the issue as two distinct questions for purposes of the Immigration and Nationality Act, 8 U.S.C. section 1101(a)(43)(B): (1) whether a violation of section 893.13(1)(a)(2) constitutes a “drug trafficking crime” under 18 U.S.C. section 924(c); and, (2) whether a violation of section 893.13(1)(a)(2) falls into the broader category of “illicit trafficking in a controlled substance.”  Slip. op., pgs. 4-5.

In answering the first question in the negative, the Court reasoned that the Florida statute has no mens rea element.  Slip op., pgs. 9-11 (citing State v. Adkins, 96 So. 3d 412 (Fla. 2012)).  The Court declined to answer the second question, whether a violation of section 893.13(1)(a)(2) falls into the broader category of “illicit trafficking in a controlled substance,” because the Board of Immigration Appeals never considered that issue.  Slip op., pg. 13.

The Donawa opinion wraps up with some great language that criminal appeals and criminal defense lawyers will love:

“The BIA erred in finding that, as a matter of law, a violation of Fla. Stat. 893.13(1)(a)(2), as amended by Fla. Stat. 893.101, qualifies as a drug trafficking aggravated felony.  Mr. Donawa and others convicted under this statute may still be able to meet their burden to demonstrate eligibility for cancellation of removal, and should be given a chance to shoulder that burden.  See 8 U.S.C. section 1229a(c)(4)(A) (placing the burden to establish eligibility from relief from removal on the deportable alien.)  Mr. Donawa’s Petition is GRANTED, and we VACATE AND REMAND for further proceedings consistent with this opinion.”

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.”

More Graham Fallout- Juvenile Charged With Attempted Murder Entitled To Bond

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.

2nd DCA Examines Defense of Necessity in DUI Cases, And Florida Supreme Court Reevaluates Cause Challenges

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.


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