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.
Can you guess which of Florida’s appellate courts is not like the others? If you handle criminal appeals on a regular basis, then you know that four out of five of Florida’s District Courts of Appeal are on eDCA, the electronic filing system begun by the 1st DCA a while ago: the First, Third, Fourth and Fifth DCA. But one of them stands alone: the Second DCA. While the other DCA’s opted to follow the course of the First DCA, and begin their foray into e-filing on eDCA, the Second is the only DCA to skip eDCA, and commence its foray into e-filing by jumping directly onto Florida’s Statewide e-filing Portal. (the Florida Supreme Court did this as well a few months ago). Today marked the first day of voluntary filing with the 2nd DCA through the Portal.
Have any of you tried filing with the 2d DCA through the Portal? I did. It leaves a lot to be desired. Don’t get me wrong, e-filing definitely beats having to send your briefs, motions, and responses via FedEx, followed by a courtesy copy by e-mail, but for some reason, the Portal does not seem to provide access to the court docket. To see the appellate docket, you still need to go to the “online dockets” link from the Portal website, or at any of the DCA webpages, and those dockets are not real-time. So in other words, you can submit something electronically, but it still won’t show up on the docket for several days. The other thing I don’t like is that when you’re filing through the Portal, you don’t get a time-stamped copy to reflect the time and date of your e-filing. Similar to the Federal CM/ECF system, the e-DCA system provides both of those functions.
If you are lucky enough to be in Federal court, then you get the ease of working with CM/ECF. In my view, CM/ECF is the best e-filing system there is because you get a real-time docket, time/date stamps on your e-filed pleadings, electronic confirmation of your successful filing, and automatic e-service of your pleadings on the other parties in the case (except pro se parties). E-DCA is a close second. Although e-DCA lacks electronic service, e-DCA at least provides you an e-mail alert that a pleading or order was filed in the case, and a link to view the document. Plus, e-DCA provides you with a real-time docket, time/date stamps on your e-filed pleadings, and electronic confirmation of your successful filing.
E-filing in Florida’s State courts is a work in progress. In the coming months, the First, Third, Fourth and Fifth DCA will all have to make the transition to the Statewide Portal, as will the rest of Florida’s trial courts. Hopefully, the Portal we have today is a work in progress, too.
The Florida Supreme Court is in recess until August 29, 2013, but I came across a good opinion issued by the Fourth DCA that I wanted to pass along because it provides a good example of preserving objections for purposes of appeal. If you’re an attorney that handles appeals, criminal or civil, then you know that preservation of issues for appeal can sometimes be crucial. For those of you who don’t handle appeals, preservation basically comes down to this: if you want to make an argument on appeal, you must have first objected and/or made that same argument to the trial court. If you haven’t objected, or if you haven’t presented that argument to the trial court, then the appellate court may decline to entertain that argument on appeal.
In Dinkines v. State, 4D12-1845, a case which originated in Broward County, Dinkines was charged with dealing in stolen property and false verification of ownership or false identification given to a pawnbroker. After a jury trial, Dinkines was convicted of the false verification of ownership, but was acquitted of dealing in stolen property. Even though Dinkines scored any non-state prison sanction, the trial court sentenced Dinkines to three years in Florida State Prison.
According to the opinion, at the sentencing hearing, defense counsel did everything he or she could have to preserve the issue for appeal: (1) counsel filed a rule 3.800(b)(1) motion to correct sentencing error; and, (2) at the hearing on the motion to correct, counsel argued that the trial court erred by basing its sentence on argument of the prosecutor at the sentencing hearing, rather than on evidence or testimony. Even after the trial court remained steadfast in his opinion, defense counsel continued to press the court, arguing that Dinkines had been acquitted of dealing in stolen property, that she was only convicted of the false verification charge, and that Dinkines had not been charged with burglary or any other crime. Unfortunately for Dinkines, the trial court was unpersuaded by defense counsel’s argument, and entered a written order containing findings of fact in support of the 3 year prison sentence.
On appeal, the Fourth DCA agreed with the arguments of Dinkines’ counsel, and reversed. Apart from the preservation aspect of the opinion, you might want to take a few minutes to read the Fourth DCA opinion because the Court took the time to pinpoint several problematic aspects of the trial court’s sentencing considerations, including the fact that the court referred to Dinkines as a “thief,” criticized her for failing to demonstrate remorse, and sentenced her based on argument of the prosecutor which was not substantiated by the trial. Let’s hope that when the trial court resentences Dinkines on remand, that the court does so based on the evidence contained in the record, not on his personal opinions.
The Florida Supreme Court issued a pretty interesting opinion right before the Memorial Day weekend–Public Defender, Eleventh Judicial Circuit of Florida v. State, No. SC09-1181. I remember reading news reports about this case back in 2008 or 2009, and it seemed like a pretty big deal that the Public Defender for Miami Dade County was actually so overloaded that the entire office was filing motions in numerous non-capital felony criminal cases seeking to decline future appointments, arguing that excessive caseloads prevented the office from providing effective representation. Well, although the opinion left the most interesting matter unresolved (i.e., the question of whether to grant or deny the PD’s motion), the Court did nevertheless hold that the Public Defender could file such aggregate motions where there is an office-wide problem as to effective representation, and that motions to withdraw could be granted pursuant to Florida section 27.5303 so long as the PD shows that there is a substantial risk that the representation of one or more clients will be materially limited by representation to another client. See Public Defender, slip op., pgs. 25-35. However, because the case had been pending in the Supreme Court so long, the Court remanded the matter back to the trial court for a determination of whether the conditions underlying the PD’s motions to decline future appointments still exist.
What is the impact of this case? Well, if the trial court determines that the conditions at the Miami Dade Public Defender’s office are unchanged, and that the Public Defender’s motions should be granted, then that means the cases will have to be handled by other court-appointed counsel. In other words, more work (and fees) for other court-appointed criminal defense attorneys! Now, if we could just get the Florida Legislature to repeal the fee caps imposed last year for criminal defense and criminal appeals lawyers . . .
I hope you had a great Memorial Day weekend!
Well, after winning a new trial (while the case is on appeal, no less) John Goodman lost a key member of his criminal defense team, Robert Black. For the articles in the Palm Beach Post and Sun Sentinel, click here and here. Maybe this means that Goodman and the State have reached a plea agreement?
Meanwhile, the Palm Beach Post also reports that there’s quite a bit of legal havoc in the William Van Poyck death penalty case. Although I have not yet been able to locate the order issued by the Florida Supreme Court, the Court has apparently pulled a surprise move. Even as Van Poyck’s June execution date approaches, the Court appears to have appointed a team of lawyers from Palm Beach County to represent Van Poyck. For the article in the Palm Beach Post, click here.
To me, the Van Poyck case highlights just a fraction of what is wrong with Florida’s death penalty. If the case is still important enough for the court to appoint new lawyers, even at this late stage, why should the Governor be signing the warrant for Van Poyck’s execution? And why is it that after years of being unable to reach any sort of agreement with regard to amending the death penalty statute so as to render it constitutional, (why bother with that?), the Florida legislature is able to enact legislation that limits the appeals process, thereby actually speeding up the death penalty executions?
Well, the week is practically over and I’ve not had as much time for reading opinions as I like, but I came across an interesting article from the Palm Beach Post that I thought deserved mentioning. According to the report, Florida Senator Joe Negron is sponsoring the “Timely Justice Act of 2013″ in an effort to speed up the appeals process for death-row inmates. According to Negron, the bill is “designed to streamline litigation and cut out duplicate or baseless appeals filed by prisoners after the state Supreme Court has upheld a murder conviction and death sentence.”
Any Florida criminal attorney (whether you handle trials or appeals) knows that death row appeals can take years to conclude. And everyone who’s familiar with the system also knows there will always be baseless appeals filed by certain individuals. But in my view, to try to legislate the time for the appeals process seems misdirected. After all, we read stories every day about inmates who are exonerated after spending years on death row. Why cut off their time for appealing their conviction with another arbitrary deadline? Instead, the legislature should focus on other things of greater constitutional concern–for example, amending the death penalty statute to require a unanimous recommendation by the jury before the death penalty could be imposed. As noted in the Palm Beach Post report, Florida is the ONLY state that does not require a unanimous jury recommendation. Or perhaps the legislature could spend their time on something even more important, like repealing the death penalty altogether. Isn’t it time Florida joined the other civilized States in the U.S.?
You can view the text of the bill, and other information about the bill (SB 1750), here.
Have any of you read the latest copy of the Florida Bar news (February 15)? The title for one of the articles on the front page reads, “Study Suggests Conflict Attorneys Are Underpaid.” Shocking! (You can check out my previous post showing exactly how underpaid criminal conflict attorneys are by clicking here).
Sarcasm aside, I am hopeful that this article means that there may be some movement on this issue in the Florida legislature in the future. I know, I know, it may be too much to hope for, but you never know . . . Wouldn’t it be great for Florida’s criminal defense and criminal appeals attorneys to be able to earn a realistic fee for accepting appointments in criminal cases again?
The week’s flown by, but I wanted to mention quickly that in Zacariah Dorsett v. State, No. 4D11-1530, Florida’s 4th District Court of Appeal has reversed a conviction for Leaving the Scene of a Crash Involving Injury, and certified a question of great public importance: “In a prosecution for violation of section 316.027, Florida Statutes (2006), should the standard jury instruction require actual knowledge of the crash?”
Dorsett was charged with Leaving the Scene of a Crash Involving Injury after Dorsett struck a teenager who fell from his skateboard. Unfortunately for both Dorsett and the teen, Dorsett dragged the teen an unstated distance along the road before being stopped by police. At trial, although several witnesses testified as to their views of the accident, Dorsett testified that he was unaware of the crash. The trial court rejected Dorsett’s request for a special jury instruction. On appeal, although the 4th DCA did not fault the trial court for instructing the jury according to the standard instructions, the court reversed, and requested the Florida Supreme Court to specifically “focus on the knowledge requirement as it relates to the accident itself,” in light of a prior decision, State v. Mancuso, 652 So. 2d 370 (Fla. 1995).
Although Dorsett’s conviction has been reversed, the litigation may not be over just yet. Florida’s criminal defense attorneys and criminal appeals attorneys will have to stay tuned to see if the Florida Supreme Court decides to accept jurisdiction.
The Palm Beach Post reports that the teen, now 21 years old, has survived the accident, but requires constant attention from a caregiver.
Criminal defense attorneys who handle cases involving traffic stops may want to take a few minutes to read an opinion released by the Florida Supreme Court today. In State v. Catalano, No. SC11-1166, the Florida Supreme Court found that the noise control statute, section 316.3045, Fla. Stat., is unconstitutional. After engaging in a classic constitutional law/First Amendment analysis, the Court concluded that the statute is unconstitutionally overbroad and an impermissible content-based restriction, and that severance of section 316.3045(3) is not an appropriate remedy to preserve the constitutionality of the statute.
Obviously, if you’ve got a client who’s been charged with a violation of this statute, you should consider filing a motion to dismiss based on Catalano. However, even if you’ve got a client who’s charged with only a violation of a similar local ordinance, you might want study the Catalano opinion to determine whether you can move to dismiss the charge, based on an analogy to Catalano. Before you do so, be sure to determine whether the local ordinance in your case is structured similarly to section 316.3045.
On another note, for those of you who handle appointments in criminal cases, you’re no doubt aware of the State’s changes to the payment structure which went into effect in July of 2012 when the Florida Legislature passed SB 1960. (If not, you can read my previous post summarizing the changes here). Well, if you do handle criminal appointments for either trials or appeals, I came across a thorough and well written article in the December 15, 2012, edition of Florida Bar News today that you may want to read. Hopefully, the publication of the article means that the issue is gaining statewide attention. Greater attention can only help the plight of Florida’s criminal conflict counsel.
On November 14, 2012, the Second DCA issued an opinion in Pagan v. State, No. 2D11-3804, wherein the court held that the trial court erred in summarily denying Pagan’s Rule 3.170(l) motion to withdraw his plea based on misleading advice of counsel. According to the opinion, after Pagan was sentenced to 30 years for his involvement in the death of a child, Pagan moved to withdraw his plea. The trial court appointed conflict free counsel to represent Pagan, and a hearing was set. Just before the hearing commenced, the State offered Pagan a reduced sentence of 15 years in exchange for Pagan’s waiver of any right to seek collateral relief. The court gave Pagan time to consult with his attorney, after which Pagan accepted the State’s offer. The court resentenced him to the lesser term, remarking to Pagan that “you would be agreeing that you will withdraw this motion to withdraw your plea and you will also be agreeing that you will not file any further post-conviction motions attempting to reduce this sentence that I am about to impose.” Later the court added: “And just to reiterate part of the deal is you will not be filing any more post-conviction motions. This—this is it. You filed it. It worked for you.” After resentencing, Pagan filed several Rule 3.850 motions, alleging that he received ineffective assistance in connection with the State’s offer to resolve his rule 3.170(l) motion. Predictably, the trial court denied each of his motions. On appeal, the Second District reversed.
In support of its holding, the Court first noted that a Rule 3.170(l) motion is not a postconviction matter, and that a defendant is entitled to effective assistance of counsel in connection with such motion. See Pagan, slip op., pg. 3. The Court also observed that “a defendant can waive his right to collaterally attack his judgment and sentence when the waiver is expressly stated in the plea agreement and he knowingly and voluntarily agrees to the waiver.” See Pagan, slip op., pg. 4 (citing Stahl v. State, 972 So. 2d 1013, 1015 (Fla. 2d DCA 2008); Williams v. United States, 396 F.3d 1340, 1342 (11th Cir. 2005)). However, “ineffective assistance of counsel claims attacking the advice received from counsel in entering into the plea and waiver cannot be waived.” See Id.
While the opinion seems to have reached the right result by holding that Pagan did not waive his claim of ineffective assistance of counsel, it is troubling that the court’s opinion closed with a cautionary note:
We remand to the circuit court to conduct an evidentiary hearing on
Pagan’s allegations of ineffective assistance in connection with the agreement to
resolve his rule 3.170(l) motion. We caution that Pagan may subject himself to a worse
result if he goes forward with this process, but that is his decision to make.
Pagan, slip op. pg. 4.
I also find it troubling that the Court failed to address the obvious ethical issue presented by the opinion: whether a defendant can be offered a plea bargain that requires him or her to waive future claims of ineffective assistance of counsel (or prosecutorial misconduct)? Florida’s criminal appeals and criminal defense attorneys may remember that this past August, the Professional Ethics Committee of the Florida Bar issued Proposed Ethics Advisory Opinion 12-1, which states that plea bargains which require defendants to waive future claims of prosecutorial misconduct or ineffective assistance of counsel violate Bar rules.
To view a few of the articles that appeared in the Florida Bar News regarding the Advisory Opinion, click here and here. Although the Advisory Opinion has not yet been adopted by the Florida Bar Board of Governors, if there is no appeal of the proposed opinion, the Advisory Opinion will become final.