Tag Archives: Appeal

Florida Supreme Court Affirms Conviction Despite Improper Comments from Prosecutor, and Fourth DCA Reverses One of its Own on Issue of Pre-Trial DNA Testing Procedures

Posted by

The Florida Supreme Court and Fourth DCA have both issued interesting opinions in the last week, so I though I’d pass them along.

First, in Gary Fontaine Bell v. State, SC10-916, the Court examined a series of statements made by the prosecutor.  Although the analysis of each statement is a bit tedious, the case is good to read because it illustrates an important lesson for criminal defense and criminal appeals attorneys alike: to preserve an issue for appeal, you have to object, and renew your objections at the appropriate time.  In Bell, athough the court found that several statements were improper, the Supreme Court nevertheless affirmed Bell’s conviction for lewd and lascivious molestation on a victim under 12 by a person 18 or older because Bell failed to preserve the issues for appeal, and because the comments did not constitute fundamental error.  See Bell, SC10-916, slip op., pgs. 16-18.  The statements examined by the Court include:

(1) During closing argument, with regard to the age of the victim, the prosecutor stated, “so without any evidence contradicting [the State’s evidence,] the State has proven to you beyond a reasonable doubt the first element of the charge.”  The Court found this statement did not constitute an improper comment on Bell’s right to remain silent because the statement concerned an issue that witnesses other than Bell could have refuted.  Also, the Court found no improper burden shifting.  See Bell, SC10-916, slip op., pgs. 2, 11-12.

(2) During voir dire, the prosecutor asked questions including “[n]ow, would anyone just right off the bat tell me that if all I have is a [sic] word of a child to evaluate as the evidence, that that’s not enough; I would need more?”; “[w]ithout hearing any other thing about the case, could you tell me right now that the testimony of a child alone would be insufficient for you?”; and, “if you heard the testimony of a child telling what happened and there were no other eyewitnesses, would that not be enough for you under any circumstances?”  After determining that Bell failed to preserve the issues for appellate review because he failed to renew his objection prior to the jury being sworn, the Court also found that the statements did not comment on Bell’s right to remain silent.  See Bell, SC10-916, slip op., pgs. 3-4, 19-20.

(3) During the initial portion of closing argument, the prosecutor stated “so without any evidence contradicting that the State has proven to you beyond a reasonable doubt the first element of the charge;” “in cases like this, it is always a one-person’s word against another;” “it is the word of [the victim] against the plea of not guilty that Gary Bell has entered;” “[s]o if you are looking for a reason to not believe [the victim] there isn’t one.  Because there is no evidence that she would have made this up at this particular time under these particular circumstances;” and, “[t]his is also a very important day for [the victim], her family and the people of the State of Florida who I represent.”  The Court found such statements either impermissibly commented on Bell’s right to remain silent, or otherwise implied that Bell had a burden of proof.  See Bell, SC10-916, slip op., pgs. 5, 6, 7, 13, 14.

(4) In the rebuttal portion of closing argument, the prosecutor stated, “Well, did you hear any testimony, any evidence that supports that statement?”  The Court found that such statement was proper, as it was an invited response.  See Bell, SC10-916, slip op. pgs. 8, 16.

Finally, in Esdras Cardona v. State, 4D09-3636, the Fourth District held that the trial court erred in not holding an evidentiary hearing before ordering specific procedures for DNA testing.  The most interesting thing of the opinion?  The trial judge who was reversed is Judge Gerber-who now sits on the Fourth DCA.

Happy reading!

Florida Supreme Court Amends Rules of Criminal Procedure

Posted by

In case you haven’t noticed, the Florida Supreme Court amended the Rules of Criminal Procedure today, October 18, 2012.  You can view the amendments by clicking here.  The amendments aren’t too long to read through– only 17 pages, so you may want to take a look.  Otherwise, the highlights are as follows:

Rule 3.191(h) (Speedy Trial):  Amended to clarify when a notice of expiration of time for speedy trial is timely filed and served.  By striking the phrase “on or”
from the portion of the rule providing “on or after the expiration of the periods of time for trial provided in this rule,” the rule clarifies that only after the expiration of time for speedy trial is a notification of such an event timely filed.

Rule 3.220(h)(1) (Discovery Depositions):  Amended to reflect that upon application, either a pro se litigant or an attorney for either party may have the court or clerk issue subpoenas.

Rule 3.410 (Jury Request to Review Evidence or for Additional Instructions):  Amended in two respects.  (1) The Rule now permits the playback of digital recordings of trial testimony.  (2) The rule is amended to allow the trial court, in its discretion, to respond in writing to a juror’s question rather than bringing the jury back into the courtroom in order for the trial judge to orally respond to the question.  (Cautionary note to criminal trial attorneys regarding this amendment: if the Judge in your case decides to answer the juror’s question in writing, be sure to make a record of the Judge’s written answer for any appeal.  I suggest either asking the Judge to read his or her written answer into the record before the written answer is given to the juror, or– even better–ask the Judge for a copy of the written answer to be entered into the record as a defense exhibit.  You never know when an issue could pop up in a future appeal!)

Rule 3.800(a) (Correction, Reduction, and Modification of Sentences—Correction):  Amended to clarify that a defendant may seek correction of an allegedly erroneous sexual predator designation under the rule, but only when it is apparent from the face of the record that the defendant did not meet the criteria for designation as a sexual predator.  This amendment is consistent with the Court’s ruling in Saintelien v. State, 990 So. 2d 494, 497 (Fla. 2008).

Florida’s 5th DCA: George Zimmerman Trial Judge Should Enter Order of Disqualification

Posted by

Although the Court admitted that the case presented a close call, Florida’s Fifth District Court of Appeal ruled today that the trial judge assigned to George Zimmerman’s criminal case should enter an order of disqualification.  Read the opinion in the case, Zimmerman v. State, No. 5D12-3198, here.  Zimmerman’s Petition for Writ of Prohibition, Appendix, and the State’s Response, can be read by clicking here.  Congratulations to Zimmerman’s defense team.  Criminal appeals and criminal defense lawyers know that the courts rarely grant such petitions.

State v. James Robert Owens, No. 5D11-4257: Florida’s 5th District Court of Appeal Holds That In Moving For Downward Departure Sentence, Criminal Defendants No Longer Have Burden Of Showing That Needed Treatment Is Unavailable In Department of Corrections

Posted by

On August 24, 2012, Florida’s Fifth District Court of Appeal released an en banc opinion that will no doubt be welcomed by criminal defense and criminal appeals lawyers across the State of Florida.  In State v. James Robert Owens, No. 5D11-4257, the Court expressly receded from previous decisions which had required a criminal defendant, when moving for a downward departure, to show that the needed treatment was not available in DOC.  In so doing, the Court quoted at length a concurring opinion by Judge Warner of the Fourth District Court of Appeal in State v. Hunter, 65 So. 3d 1123, 1125-1126 (Fla. 4th DCA 2011), which was adopted by the Fourth DCA in State v. Chubbuck, 83 So. 3d 918 (Fla. 4th DCA 2012) (en banc).  The Fifth DCA also certified conflict with cases from the First, Second, and Third District Courts of Appeal.

Although this will be a good case to monitor as it goes to the Florida Supreme Court, what should Florida’s criminal defense attorneys do with the latest opinion by the Fifth DCA?  Well, if you’re lucky enough to handle cases that are within the jurisdiction of either the Fourth or Fifth DCA, then you can rest easy knowing that you have one less burden to prove in moving for a downward departure.  Be sure to cite Owens and Hunter/Chubbuck in your motion for downward departure.  If the trial court denies your motion, you will have a good basis for appeal.  If your cases are within the jurisdiction of the First, Second, or Third DCA, you should still file a motion for downward departure where warranted.  In the motion, you should cite the controlling cases out of your DCA, but you can also cite Owens and Hunter/Chubbuck in support of your position.  If the trial court denies your motion, you’ll be in a better position if you decide to appeal.

Florida Bar News Features Article on Low Pay For Court Appointed Attorneys in Criminal Trials and Appeals

Posted by

Criminal defense lawyers who accept court appointments to represent the indigent for trial and appeal have long been underpaid.  In a recent post, I discussed Florida’s latest legislative maneuver to decrease the amount of pay for court-appointed attorneys yet again.  Well, now, the Florida Bar News has published an article discussing how low the pay rates really are, and how it affects the criminal justice system overall.  To read the article, click here.   Although the article is very informative, it’s too bad it couldn’t have been published while the issue was pending in the Florida legislature.

Florida Legislature Votes to Change How Court Appointed Attorneys Are Paid-Again

Posted by

The word is spreading fast among South Florida’s criminal defense lawyers.  In a last minute legislative maneuver, the Florida legislature passed SB 1960, a bill which takes effect July 1, 2012.  The bill changes the way court appointed attorneys are paid in Florida-again-by creating two registries: a “general registry,” and a “limited registry.”  If you are an attorney that is currently on a court-appointment wheel, you may soon be getting an e-mail from your judicial circuit administrator asking you if you want to be listed on the general registry, or the limited registry.  According to the language of SB 1960, attorneys on the limited registry will be limited to a statutory cap on their attorney’s fees.  The caps, as outlined in soon-to-be-effective section 27.5304, entitled “Private court-appointed counsel; compensation,” provides the following caps on fees:

(1) For misdemeanors and juveniles represented at the trial level: $1,000

(2) For noncapital, nonlife felonies represented at the trial level: $2,500.

(3) For life felonies represented at the trial level: $3,000

(4) For capital cases represented at the trial level: $15,000.  The Bill defines a “capital case” as “any offense for which the potential sentence is death and the 280 state has not waived seeking the death penalty.”

(5) For representation on appeal: $2,000.

See SB 1960, section 27.5304(5).  Attorneys will only be permitted to exceed the statutory cap upon the filing, and granting, of a motion. See SB 1960, section 27.5304(12).

A word of caution to criminal defense attorneys who opt to be listed on the “general registry:” pursuant to SB 1960, section 27.40, if your circuit creates a “limited registry,” the court will have to make appointments from the “limited registry” first, and then only from the “general registry” if there are “no attorneys available to accept the appointment on the limited registry.”  See SB 1960, section 27.40(3).

If you are an attorney who takes appointments to criminal cases, you might want to take a few moments and read the bill in its entirety.




			

	
		
	


				
					


		

		
Practical Tips for Federal Court-Part II


				

			Posted by 		

		
			


		

		
Just a few more tips for those of you who might find yourselves in Federal court, especially in the Southern District of Florida . . .


1.  You probably know that everything in Federal court gets filed electronically on CM/ECF.  To avoid getting too many nasty-grams from the Clerk’s office for improper filing, it’s probably a good idea to visit the Clerk’s website and download a copy of the Administrative Procedures governing CM/ECF.


2.  If you’re a civil attorney whose case gets assigned to a Judge that runs a “rocket docket,” you should consider consenting to the jurisdiction of a United States Magistrate Judge.  Most often, you’ll have the ability to special set your hearings and trials, and you might get a bit more time to work the case up effectively.  To consent to the jurisdiction of one of the Magistrate Judges (notice that I am NOT referring to them as “magistrates”–that term is for state court only), you can obtain the proper consent form from the Local Rules.  Both sides need to agree, as do the clients.


3.  If you’re a criminal defense attorney who handles a lot of sentencing hearings, you might want to reconsider sending in all those letters extolling the virtues of your client.  Several Judges who were at the Federal Bench Bar conference in West Palm Beach on April 27, 2012, actually said that they are not really persuaded by the letters.  Rather, the Judges would find it more helpful for criminal defense attorneys to focus the court’s attention on the sentencing factors listed in 18 U.S.C. section 3553(a).  As required by United States v. Booker, 543 U.S. 220 (2005), the Judges said they really try to focus on determining a sentence that is “sufficient and not greater than necessary.”  However, if you do find it necessary to submit letters, some of the Judges said that any person submitting a letter should not also be called as a witness.  As for the length of the hearings, the Judges also said that most sentencing hearings should be completed in about 30 minutes.  Finally, several of the Judges said that since Booker, they might be more apt to go along with a sentencing variance, as opposed to an outright departure, since departures are more vulnerable to reversal on appeal.


4.  Finally, whenever you are in the Federal courthouse, as in any courthouse, be nice to everyone.  Negative comments about lawyers spread quickly.  Deputy Marshals will gossip just as much as the CRDs, Clerks’ staff, and chambers staff.  Be nice to everyone there, and they will be nice to you (well, for the most part . . .)

			

	
		
	


				
					


		

		
Criminal Defense Lawyers Thinking Outside the Box and Suggestions for the United States Supreme Court


				

			Posted by 		

		
			


		

		
Well, it is now Friday afternoon in South Florida, so I thought I would pass along some short thoughts for the weekend.


1.) Sanders v. State, No. 4D10-3865, is, in my opinion, a great example of a criminal defense lawyer thinking outside the box.  After the trial court denied the defense motion to dismiss, on appeal, the 4th District Court of Appeal reversed.  In short, the Court agreed with the defense that the grand theft charges should have been dismissed because the theft was committed while the plane was in flight, before touching down in Florida.  I am sure that this argument would have driven me crazy back when I was a prosecutor, but now, I think it’s pretty clever!


2.) Lately, some high-profile people, such as Erwin Chemerinsky, Dean of University of California, Irvine School of Law (and well-known Supreme Court lecturer), have been calling for the Supreme Court to make itself more accessible to the common people.  Some of Dean Chemerinsky’s suggestions include allowing television cameras into the courtroom to broadcast oral arguments, letting the public know in advance which decisions it will be releasing, hiring a “clear writer” to reduce each decision down to a single paragraph that would accompany a ruling, and explaining why certiorari was denied.  In another report on CNN, Joe Mathewson, a former attorney and Supreme Court reporter for the Wall Street Journal, also calls for the installation of cameras in the courtroom in time for the oral arguments scheduled in the case where the Court will decide the constitutionality of President Obama’s new healthcare law.  The case, Dept. of Health & Human Srvcs. v. Florida, No. SC11-398, is set for oral argument on Monday, March 26, 2012.

			

	
		
	


				
					


		

		
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?


				

			Posted by 		

		
			


		

		
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.

			

	
		
	


				
					


		

		
Palm Beach County Court Follows Proper Procedure, Dismisses First Degree Murder Charges Pursuant to Florida’s “Stand Your Ground” Statute


				

			Posted by 		

		
			


		

		
The Sun Sentinel reports that Palm Beach County Circuit Court Judge Oftedal recently granted a motion to dismiss first degree murder charges that had been filed against a 65 year-old individual named Michael Monahan.  Although the Order is not publicly available, the Sun Sentinel reports that Judge Oftedal concluded that the case involved “a clear case of justified force” under Florida’s “Stand your Ground” statute.  As a result of the Order, Monahan was released from jail.


While the Court’s Order may not sit well with the family of the victim, the fact remains that the Court followed the procedure which is required by law.  For starters, let’s consider what the statute actually says.  The Stand Your Ground statute provides,


776.032 Immunity from criminal prosecution and civil action for justifiable use of force.—


(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer.  As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.


(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.


(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).




Basically, section 1 of the statute states that if a person is justified in using force under sections 776.012, 776.013, or 776.031, to defend himself or another, his residence, or a member of his family or household, then that person is generally immune from criminal prosecution.  So, the issue becomes: who determines whether the force used was justified?


In a previous post, I noted that, pursuant to the Florida Supreme Court case of Dennis v. State, 51 So. 3d 456, 457 (Fla. 2010), courts (that is, Judges) are required to make that determination whenever a defendant files a motion to dismiss in reliance on the Stand Your Ground statute, and that the determination is to be made prior to any trial.  The Sun Sentinel report on Michael Monahan’s case shows the practical effect of how the Dennis decision requires courts to handle motions to dismiss filed under the Stand Your Ground Statute.  If a court grants the motion to dismiss, the Defendant goes free.


The Florida Supreme Court only issued the Dennis decision in December of 2010.  Since the statute can be such a strong weapon in the criminal defense arsenal, I think it’s a pretty safe bet that Florida criminal defense attorneys will continue to file motions to dismiss based on the Stand Your Ground statute in cases where their client’s use of force becomes an issue.  Even if a motion to dismiss is denied, the mere filing of the motion should preserve the issue for any appeal down the road.