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: criminal appeals

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.

Noel v. State, No. 4D10-1765: Florida’s 4th DCA En Banc Opinion Holds That Trial Judge May Consider Defendant’s Ability To Pay Restitution During Initial Sentencing Proceedings

In an opinion that’s created a lot of discussion among criminal defense and criminal appeals attorneys alike, Florida’s 4th DCA has held, in an en banc opinion, that the trial judge may consider a defendant’s ability to pay restitution when fashioning a sentence.  See Noel v. State, 4D10-1765.

Noel was convicted after a jury trial of conspiracy to racketeer and first degree grand theft, arising from a scheme to steal advance fees from victims who sought to obtain funding for their business projects.  Noel, slip. op., pg. 1.  At the sentencing hearing, the court judge asked Noel if he was in a position to make any up front restitution.  Noel stated that he was, and that he could pay between $20,000 to $40,000, “plus other things.”  Slip. op., pg. 2.  The State requested a sentence of 15 years, while the defense requested a sentence at the low end of the guidelines, 3.8 years.  The court sentenced Noel to 10 years in prison followed by 10 years of probation, with the provision that if Noel made restitution of $20,000 within 60 days, his prison sentence would be mitigated to 8 years.  As a condition of probation, the court ordered Noel to pay $650,000 in restitution to the victims, with 15% of his net pay going towards restitution.  Slip op., pg.2.

In the forcefully written opinion, the majority goes to great lengths to distinguish DeLuise v. State, 72 So. 3d 248 (Fla. 4th DCA 2011), where the 4th DCA held–only two years ago–that it is fundamental error for the court to offer to mitigate a lawful sentence in exchange for the defendant paying some restitution for the victims of a crime within 60 days of the sentence.  The court also emphasizes the State’s interest in securing restitution, and declares that the trial judge should always have the ability to  impose a sentence which is more lenient than the statutory maximum” for whatever reason.”   Noel, slip. op., pgs. 2-11.

While many agree that  the judge should have the ability to impose a sentence less than the statutory maximum, the dissenters correctly note that the trial judge cannot simply do so “for whatever reason.”  Rather, the court can only consider a defendant’s ability to pay restitution within the parameters of the United States Constitution.  And, as noted by the dissenters, the net result of the majority opinion is that a defendant who is unable to pay restitution up front may be sentenced to a longer term of incarceration than a defendant who is able to pay restitution.

This is by no means settled.  A review of the 4th DCA docket shows that the Public Defender has filed a motion for rehearing, to which the State of Florida has responded.  We’ll have to wait and see what happens next.

2nd DCA Examines Defense of Necessity in DUI Cases, And Florida Supreme Court Reevaluates Cause Challenges

Well, voluntary bar commitments are heating up, which leaves less time for blogging, but I wanted to take a moment to pass along 2 cases worth noting for Florida’s criminal defense and criminal appeals attorneys.

First, DUI practitioners should read Brooks v. State, 2D11-2586, because the Court discusses the defense of necessity in DUI cases.  According to the opinion, Brooks asked the trial court to instruct the jury on the defense because the evidence at trial showed that Brooks was compelled to drive (after some party time with his friends, of course) to save his friend’s ailing cat.   Unfortunately for Mr. Brooks, the Court disagreed.  Since the defense is so unusual, the Court relied on opinions from other jurisdictions.   Brooks, slip op., pgs. 5-6.  Ultimately, the Court stated that the defense of necessity is not available as a defense to DUI in Florida where the asserted emergency involves the threat of harm to an animal instead of a person.

Next is Matarranz v. State, SC11-1617.  You know it’s going to be a long opinion when it opens with a quote from To Kill A Mockingbird, and ends with a quote from Thomas Jefferson.  The short version: the Florida Supreme Court reversed the decision of the Third District, and remanded for a new trial because the trial court erred in denying cause challenges.  In so doing, the Court clarified the law surrounding peremptory challenges and the removal of jurors for cause.  With regard to the State’s preservation argument, the Court found that the issue had been sufficiently preserved because (1) defense counsel moved to strike the juror based on a thorough conversation regarding her ability to be fair and impartial; (2) after the trial court denied the challenge for cause, counsel had to use a peremptory challenge to strike the juror; (3) counsel exhausted all his peremptory challenges; and, (4) counsel thereafter identified and listed additional jurors he would have excused if provided with an additional challenge.  See Matarranz, slip op., pgs. 13-17.

The Court next determined that the trial court reversibly erred by denying counsel’s challenge for cause.  In so doing, the Court specifically observed that it’s OK for counsel to engage potential jurors in conversations regarding their partialities, biases, prejudices, and misconceptions when they result from a lack of familiarity with the judicial system, rather than from immutable opinions and attitudes that arise from personal experiences and firmly held beliefs.  See slip op., pg. 22.  In other words, where counsel has a concern about a potential juror’s misinformation and confusion regarding the law or process, counsel may engage the potential juror in an effort to rehabilitate the potential juror.

Finally, much of the Matarranz opinion consists of the majority opinion’s criticism of Judge LaBarga’s dissent, and the dissent’s criticism of the majority.  If you happen to like to reading such verbal sparring, you’ll certainly enjoy this opinion.  See pgs. 27-33 for the majority’s criticism of Judge Canady’s dissent, and pages 36-40 for the dissent.

Changes at the Eleventh Circuit and 4th DCA

A big change has been announced for the Eleventh Circuit: Judge Rosemary Barkett will be leaving the Court.  According to a press release issued by the Department of State on August 23, 2013, Judge Barkett has been appointed to the Iran-United States Claims Tribunal in The Hague.  She will begin her new position on October 1, 2013.  Although she will no doubt excel in her new position, she will be sorely missed by the federal criminal defense and criminal appeals attorneys throughout the State of Florida and the rest of the Eleventh Circuit.

At least Justice Ruth Bader Ginsburg has no intention of leaving her position at the nation’s highest court.  At the age of 80, she is still running full steam ahead, and sees herself as the leader of the liberal opposition on one of the most activist courts in history.  For the article published in the Washington Post, click here.

Meanwhile, on a more local note, Governor Scott has appointed 2 new Judges to the 4th DCA in the last 5 months.  Judges Forst and Klingensmith were appointed in March and August of this year.  Since I’ve already seen their names in several opinions, they both seem to have hit the ground running.  You can see the official profiles of Judges Forst and Klingensmith here.  Best of luck to them in their new positions.

Eleventh Circuit Circuit Reverses After Appellate Counsel Initially Files Anders Brief

Since the Eleventh Circuit has a new Chief Judge now (Judge Dubina passed the gavel to Judge Carnes as of August 1), I thought I’d take a few minutes to mention two interesting opinions issued by the Eleventh.

(1) United States v. Fries, No. 11-15724.  If you handle federal or state criminal appeals, you’re probably familiar with filing Anders briefs (Anders v. California, 386 U.S. 738 (1967)) when you’ve searched the record, but are unable to discover any appealable issues.  Often, the courts accept Anders briefs without question.  However, in Fries, the Eleventh Circuit declined to accept appellate counsel’s Anders brief, and instead directed counsel to brief two specific issues:

(1) whether the district court effectively removed the burden of proof regarding an element of the 18 U.S.C. § 922(a)(5) offense by instructing the jury that the sale of a firearm to a licensed dealer was an exception to the prohibition on sales to non residents that did not apply in the case; and

(2) whether the evidence was insufficient to convict when no evidence was presented as to whether the buyer of the firearm was a licensed dealer.
In a revised brief, appellate counsel argued that Fries’ conviction for transferring a firearm to an out-of-state resident should be reversed for insufficient evidence because (1) the evidence at trial failed to show that he sold a firearm to a person who was not a licensed firearms dealer; and, (2) in the alternative, he should be granted a new trial because the court’s jury instructions shifted the burden of proof.
The Eleventh Circuit agreed, and reversed for a simple reason:  at trial, the prosecutor failed to establish an essential element required by section 922(a)(5)–that the individual to whom Fries sold the firearm lacked a federal firearms license (“FFL”).  After a bit of help from the Court by declining to accept the Anders brief, this is a good win for the defense.  It’s not very often that the Government commits such an error.  As noted by Judge Carnes in his concurrence, all the prosecutor had to do during the Government’s case in chief was ask a simple question as to whether the ATF agent who purchased the gun from Fries at the Tallahassee Gun and Knife Show had a federal firearms license.
(2) In United States v. Curbelo, No. 10-14665, the Court affirmed Curbelo’s conviction for a count of conspiracy to manufacture and possess marijuana with intent to distribute, and a second count of manufacturing and possessing marijuana with intent to distribute.  According to the opinion, it seems that Mr. Curbelo was employed as a carpenter for a Mr. Diaz, and that when the carpentry work was no longer lucrative enough, Mr. Curbelo decided to join in Mr.  Diaz’s grow-house operations.  Although the case is a fairly routine opinion affirming a conviction, it’s worth a read, if you have time.  Although I won’t discuss each of the five points analyze by the Court, I will note four of them for you here.
  • First, the case illustrates a rule often invoked in criminal (and civil, for that matter) appeals: if you don’t object or make a specific argument below, you’re generally going to be precluded from raising that argument on appeal.  In his brief, Curbelo argued that the DEA obtained GPS tracking data from vehicles driven by Mr. Diaz and another individual named Herman Torres in violation of the Fourth Amendment, as held in United States v. Jones, 132 S.Ct. 945, 948 (2013).  However, the Court refused to entertain such argument because defense counsel never moved to suppress the DEA’s GPS tracking evidence.
  • Second, the Court addressed another topic that often arises in criminal appeals: ineffective assistance of counsel.  Although Curbelo argued that his attorney was ineffective for failing to move to suppress the DEA GPS tracking evidence, the Court refused to consider the claim on the merits because the record was not sufficiently developed.
  • Third, the Court addressed Curbelo’s argument that the evidence was insufficient to support the sentencing enhancement for a conspiracy involving more than 1,000 marijuana plants.  The Court quickly disagreed.  In so doing, the Court noted that because the number of plants was determined by a jury, Alleyne v. United States,133 S.Ct. 2151 (2013), which was decided after the case was briefed and oral argument was held, required affirmance of the sentencing enhancement.
  • Finally, the Court rejected Curbelo’s Confrontation clause argument as to the Government’s use of English-translation transcripts of recorded conversations at trial.  In it’s analysis, the Court focused on Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011) and Crawford v. Washington, 541 U.S. 36 (2004).

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