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

Tag: Appeal

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.

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

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

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

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.


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