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: civil

Dinkines v. State, No. 4D12-1845: Good Example of Preserving Objections For Appeal

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.

Habeas Corpus Relief in Federal Court

Persons convicted in State court proceedings have several options available to them after they are convicted.  These options include (1) filing a direct appeal in a court of appeal; (2) filing a postconviction motion in the trial court, such as a motion to withdraw a plea, or a motion to vacate, set aside, or correct the sentence; and, (3) filing a petition for writ of habeas corpus in Federal court.  Persons convicted in Federal court also have the same types of options.

Habeas corpus proceedings are quasi-civil in nature.  Although the conviction being attacked is criminal, and the caselaw surrounding habeas issues can overlap into the criminal arena, the proceedings occur in a civil context, and many of the procedural rules are civil in nature.  As a result, although the Government or the State may have had to carry the burden in the criminal phase of the proceedings, the burden often shifts to the petitioner during habeas proceedings.

For those wishing to consider filing a petition for writ of habeas corpus, the United States Code contains numerous statutes and rules that should be consulted beforehand.  These sections can be found at 28 U.S.C. secs. 2241-2266.  Generally, while persons attacking State court convictions file petitions under section 2254, persons attacking Federal court convictions file motions under section 2255.  Some of the topics addressed by the statutory sections include (1) the Court’s power to grant the writ and requirements of petitions (secs. 2241 and 2242); (2) procedural matters, such as compiling the record, evidence, and hearings (secs. 2243 and 2245-2250); (3) indigent petitioners (sec. 2250); (4) the one year statute of limitations (sec. 2244(d)(1)); (5) successive petitions (sec. 2244); (6) stays of state court proceedings (sec. 2251); (7) the role of the Attorney General in proceedings attacking state court convictions (sec. 2252); and, (8) appeals of decisions on petitions and certificates of appealability (sec. 2253).  In addition, counsel should note that there are specific Rules governing habeas proceedings under both sections 2254 and 2255.   Rules 1-12 Governing 2254 Cases and Rules 1-12 Governing 2255 Proceedings can be found in the United States Code immediately following the statutory sections.  A form petition for filing under section 2254 and a form motion for filing under section 2255 can also be found immediately after Rule 12 of the 2254 and 2255 Rules.

Persons convicted of capital crimes or their attorneys should consult the Special Habeas Corpus Procedures in Capital Cases, found at 28 U.S.C. secs. 2261-2266.

Relationship between State and Federal Courts in Florida

As I mentioned in my previous post, the State and Federal courts generally operate independent of each other.  However, there are occasions where the courts operate in a more related fashion.

For example, in the civil context, where a plaintiff may choose to commence litigation in State court, the defendant may choose to remove the action to Federal court, so long as the conditions for Federal jurisdiction are met, including diversity of the parties and amount in controversy, or federal question jurisdiction.  See 28 U.S.C. sec. 1331, 1332, 1441, 1446.  Or, where a plaintiff may choose to commence litigation in Federal court, the defendant may choose to remand, or return, the case back to State court.  See 28 U.S.C. sec. 1441.

Before removing a civil matter to Federal court, or remanding the matter back to State court, counsel and the parties may wish to consider several factors, including (1) the costs of litigation in each forum; (2) the complexity of the claims; (3) whether federal claims are involved; and, (4) the need for a timely resolution of the case.

In the criminal context, individuals who are arrested by State agencies, including local police departments and sheriff’s offices, are generally prosecuted in a Florida state court.  However, if a violation of a Federal criminal statute is intertwined with the State criminal offense, the State offense may be prosecuted in Federal court.  Defendants who have been prosecuted in State court may seek to have the Federal courts review the constitutionality of their State convictions pursuant to the writ of habeas corpus.  See 28 U.S.C. sec. 2254.  In Florida, rulings rendered by the United States District Court may be appealed to the United States Court of Appeals for the Eleventh Circuit and to the United States Supreme Court.


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