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

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Florida’s 4th DCA Certifies Question to Florida Supreme Court: Whether State Must Prove Actual Knowledge of Crash Under Fla. Stat. 316.027

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.

Judge Who is Facebook Friends with the Prosecutor Should Have Recused

Just a quick note to mention that in Domville v. State, No. 4D12-556, Florida’s Fourth District Court of Appeal recently held that a Judge who is Facebook friends with the prosecutor should have recused himself.  This is an opinion that Florida’s criminal defense and criminal appeals attorneys may want to keep handy.  And if you haven’t googled the Judges on your cases to see if they have a Facebook page, you should do so now . . .

United States Seeks to Limit Guantanamo Detainees’ Access to Lawyers

Skimming through the news reports today, I came across this article on CNN.com that criminal defense and criminal appeals attorneys might want to read.

According to the article, the U.S. Department of Justice has recently taken the position that only the Government can decide when Guantanamo detainees should have regular access to their attorneys.  At issue is whether a 2008 Supreme Court decision, Boumediene v. Bush, gives federal courts the ultimate power to control habeas petitions from enemy combatants in U.S. military custody.  While pro bono lawyers argue that they should have regular access to their imprisoned clients, even if there is no active habeas challenge pending in court, or any pending charges, the Justice Department disagrees.

The Justice Department acknowledges that it has already started restricting when Guantanamo prisoners can challenge their detention in the United States District Court for the District of Columbia.  However, the Justice Department has proposed even further changes to the current rules governing attorney access.  Under the proposed changes, the Navy base Commander at Guantanamo would have sole veto power over attorney access, as well as access to classified material, including information provided directly by the detainees from interrogations.  Some chilling words from the Government’s pleadings:

The dispute thus before the Court, though important, is quite narrow . . .The only question presented is whether detainees who have neither current nor impending habeas petitions are entitled to” challenge continued access to counsel. The answer to that question is ‘no.’

If this language is not scary enough, the Justice Department has argued that although it does not seek to restrict lawyers who have an active legal appeal, the rights of detainees shrink once they have filed their first habeas challenge.  According to the report, the military wants lawyers to agree to the new conditions in order to have continued access to their clients and to any classified information the military would deem to release.  Wow.

The Judge to whom all the Guantamo cases are assigned, Chief Judge Royce Lamberth of will preside over a hearing on the issue on August 17, 2012.

Some Good Opinions Released by Florida’s 4th DCA on July 25, 2012

Criminal defense and appeals attorneys will be glad to see a couple of good opinions released by the 4th DCA this week.

The most noteworthy case is probably Bruce v. State, 4D09-2620, where the Court reversed a conviction for 3 counts of involuntary manslaughter because the police obtained Bruce’s confession in violation of his due process rights as guaranteed by the Florida Constitution (article I, section 9).  The opinion contains a good discussion of due process rights of criminal suspects under both the United States and Florida Constitutions with regard to interrogations, Miranda, and law enforcement’s duties to notify a suspect that his attorney is at the station and available to speak with him.  The lesson of this case: because  the Florida Constitution may be construed to provide greater protections to criminal suspects and defendants than the United States Constitution, don’t forget to invoke the Florida Constitution the next time you draft a motion to suppress.

The next case is Petit v. State, 4D09-4253, where, on motion for clarification, the Court affirmed the admission into evidence at trial (1) a witness’ prior testimony which had been given at a bond hearing; and (2) tape recordings of four 911 calls between two witnesses and 911 dispatchers.  With regard to the bond hearing testimony, the Court held that the witness’ prior bond hearing testimony was admissible at trial because the witness was unavailable to testify, and because the bond hearing provided Petit with the opportunity for cross examination.  Slip op., pgs. 2-8.  Next, the Court held that the 911 calls were admissible because they  were non-testimonial within the meaning of Crawford v. Washington, 541 U.S. 36 (2004), Davis v. Washington, 547 U.S. 813 (2006), and Michigan v. Bryant, 131 S.Ct. 1143, –U.S.– (2011).  Slip op., pgs. 8-11.

Although the case is instructive because it contains a lengthy analysis of Crawford, the opinion appears to help the State more than the defense.  This case has potential application to many criminal cases, but domestic violence and battery cases may be the most common.  In deciding that the witness’ prior bond hearing testimony was admissible at trial, the Court reasoned that the witness was unavailable.  However, the witness was not just unavailable–he was actually refusing to testify.  The Court acknowledged as much, but then stated, almost casually, that as long as the State made a “good faith effort” to procure the witness for trial, then that was enough.  Slip op., pg. 4 (citing State v. Johnson, 982 So. 2d 672, 681 (Fla. 2008).  Based on this part of the opinion, it seems like the State will have no problem going forward with cases that involve reluctant witnesses.

The last opinion, Althouse v. Palm Beach County Sheriff’s Office, 4D10-2221, is a good case for criminal defense attorneys because the Court held that the Sheriff’s Office would be required to pay litigation costs incurred by Althouse as a result of his filing a public records request seeking information as to the recruitment and use of confidential informants.  The next time you decide to file a public records request with the Sheriff’s Office, hopefully they will comply in a timely manner.  But if they jerk you around like the Sheriff’s Office did to Mr. Althouse, be sure to have this case on hand!

Florida Supreme Court Justices and Fourth DCA Judges Facing Merit Retention Vote In November 2012

All of Florida’s attorneys–not just criminal trial and appellate attorneys–have been hearing for a while now that several of the Justices on the Florida Supreme Court are under attack.  Supreme Court Justices Pariente, Quince, and Lewis are all up for merit retention votes in November 2012.  Judges Carole Taylor and Burton Conner from the Fourth District Court of Appeal in West Palm Beach are also up for merit retention votes in November.  According to the reports being circulated among the members of the Florida and Palm Beach County Bars, political groups, PACs, have been formed to raise massive amounts of money in anticipation of the November elections.  According to the reports, the organizers of the PACs are not based in Florida.

Why all the fuss, you ask?  Several years ago, something similar happened in another State (a mid-western State, I believe).  A large PAC was formed, and the PAC raised massive amounts of money to run political attack ads against several of the State Supreme Court justices.  The justices who were attacked all lost re-election.

Florida’s Supreme Court Justices are in a tough spot.  Although they are elected officials, they are precluded from actually going out and running a formal campaign.  They are also precluded from saying many things that a traditional candidate would say.  In other words, they can be attacked, but cannot fight back.  That’s where we come in.   If you are Florida lawyer, you know that the merit retention vote is about one question: whether the Justice or Judge should retain his or her judicial position based on his or her ability to render decisions on a fair and impartial basis, not whether you as a lawyer agree with those decisions.  As a citizen of the State of Florida, everyone has the responsibility to make an informed choice at the election booths in November.  In addition to reading about your local candidates, you should take a few minutes to read about Florida’s merit retention system here.


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