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: attorney

Florida’s Fourth and Second DCAs Start New Year With Interesting Opinions

The Second and Fourth District Courts of Appeal have started off the New Year with a couple of opinions that Florida’s criminal defense and criminal appeals attorneys should take a minute to read.

In the first opinion, Peterson v. State, No. 2D11-5083, the Court held that a vehicle’s air bag control system report was properly admitted into evidence at trial because the report is not testimonial.  In short, because the Court determined that the report was non-testimonial, the court rejected Peterson’s contention that the admission of the report violated the Confrontation Clause.  In so holding, the Court reasoned that the air bag system report was analogous to a defendant’s driving record.  Slip. op., pgs. 2-5 (citing Card v. State, 927 So. 2d 200 (Fla. 5th DCA 2006) and Pfleiger v. State, 952 So. 2d 1251 (Fla. 4th DCA 2007)).

Next, in Seymour v. State, No. 4D13-4649, the court entertained, and granted, Seymour’s emergency petition for writ of habeas corpus, wherein Seymour asked the Court to reverse the trial court’s decision to deny him bond after an Arthur hearing (State v. Arthur, 390 So. 2d 717, 718 (Fla. 1980)).  The Court granted the petition, and ordered the trial court to set a reasonable bond for Seymour.  This opinion is worth the few minutes it will take to read because opinions on bond issues don’t come up as often as criminal defense attorneys might like.  And, since the Court took the time to review several other bond cases, the Seymour opinion might be a good one to keep handy.

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.”

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’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.

Gil v. State: SC11-1983: Florida Supreme Court Reverses Third DCA and Holds That Double Jeopardy Precludes DWLS and HTO Charges Arising From Same Incident

Florida’s criminal defense and criminal appeals attorneys who handle a lot a traffic offenses will be happy to know that the Florida Supreme Court has reversed the Third DCA in Gil v. State, SC11-1983, on an issue that occurs all too often.  I’m sure you’ve seen it before: just as in Gil, your client gets stopped for one reason or another, and during the stop, the officer determines that your client has been driving on a suspended license.  As in Gil, your client will probably be charged with misdemeanor DWLS, under section 322.34(2).  And if your client really lucky, he or she might also be charged as an Habitual Traffic Offender (HTO) under section 322.34(5).  Is that proper?  Not anymore.  According to the Supreme Court in Gil, because DWLS under section 322.34(2) is a degree variant of HTO under section 322.34(5), the State Attorney can no longer charge your client with offenses under both sections–assuming, of course, that the offenses both arise from the same incident.

Follow

Get every new post delivered to your Inbox.

Join 82 other followers