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

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.

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 Supreme Court Issues Opinions Discussing Jury Instruction Pursuant to Section 812.025

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.

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.

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