Tag Archives: criminal defense attorney

Congratulations to Raag Singhal on his Appointment to the Circuit Court Bench of Broward County

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When I learned that Raag Singhal was appointed to the Broward Circuit Court bench last month, I thought to myself, “now that’s going to be one great judge.”  I remember having some cases with Raag when I was a prosecutor in Broward County, and I have to say that he was always a pleasure to deal with.  He was everything prosecutors want an opposing criminal defense lawyer to be: professional, courteous, reasonable, thoughtful, and just an all-around great guy.  I have no doubt that Judge Singhal will display all those attributes as he presides over the many cases that will be assigned to him.  Congratulations, Judge Singhal!

For those of you who are interested, Judge Singhal’s investiture will be held at 1:15 pm on January 20, 2012, in the Jury Assembly Room of the Broward County Courthouse.  A link to the Broward County Barrister, which contains the announcement for Judge Singhal’s investiture on page 31, can be found here.

How Florida’s Convicted Felons Can Apply to Restore Their Civil Rights

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In March of 2011, the media quietly reported that the newly-elected Governor of Florida, Rick Scott, and his Cabinet changed the rules governing the application process for restoration of civil rights.  According to the report, the public and press was given little to no notice of the change in the rules, and little public comment was permitted before the Cabinet unanimously voted the changes into effect.  The most dramatic effect of the change: instead of being granted an automatic restoration of their civil rights, those convicted of non-violent crimes now have to wait for five years before being permitted to apply.  Those convicted of violent crimes, such as murder or DUI manslaughter, must wait seven years and will be required to attend a hearing to have their civil rights restored.  Florida’s newly-elected Attorney General, Pam Bondi, is reported to have suggested the change.  Florida’s new rules became some of the harshest in the nation.

Now, merely 8 months later, Governor Scott is reported to be reconsidering changing the rules yet again.  Scott announced his plans to reconsider the rules before meeting with members of the Florida Legislative Black Caucus in Tallahassee.  Although the report states that Scott’s motivation to reconsider changing the rules was the result of his meeting a felon who told him of his problems renting an apartment and finding a new job, the report also suggests that Scott’s change of opinion may have more to do with getting the votes he’ll need to secure his re-election than helping Florida’s convicted felons.  When the changes in the rules were announced, many people in Tallahassee were not happy with the new Governor, including the Florida Legislative Black Caucus.  And remember how he promised to get Florida “back to work”?  Well, being a convicted felon often leads to being unemployable.  A convicted felon cannot vote or hold certain occupational licenses, and sometimes, even if a job doesn’t require a license, employers don’t want to hire convicted felons who haven’t succeeded in getting their rights restored.  So, making it harder for a convicted felon to restore his or her civil rights in turn makes it harder for convicted felons to find work.  (Assuming there are jobs out there to be had!)

It will be interesting to see if the rules will be changed yet again.  But for now, the rules are generally as follows:

(1) Wait the required time period, either 5 or 7 years, depending on the nature of the crime committed, to apply to have rights restored.

(2) To apply for a pardon, you must wait 10 years.  To apply for authority to possess or own a firearm, you must wait 8 years.  No waivers will be permitted.

(3) Before applying, you must have successfully completed all aspects of your sentence, including fines, restitution, community service, and probation.

(4) Before applying, you cannot have been re-arrested during the waiting period.  You must be crime-free and arrest-free for the entire waiting period.

(5) Civil rights will not be automatically restored for any convicted felon.

(6) When applying, some applicants can apply for review “with a hearing,” and others will be required to apply for review “with a hearing.”

(7) If the Parole Board denies restoration of rights “without a hearing,” you may reapply for restoration “with a hearing.”  However, if the board grants or denies any form of clemency, you cannot apply for further clemency for at least 2 years.

(8) People convicted of a specific list of offenses may only apply for restoration of their rights “with a hearing.”  The list of offenses requiring a hearing is quite long, but generally includes sexual offenses, all drug trafficking offenses, all first and second degree drug offenses, possession of a firearm by a convicted felon, RICO, public corruption crimes, DUI manslaughter, DUI Serious Bodily Injury, leaving the Scene of Accident involving Injury or Death, and violent offenses.

(9) To apply, you’ll need to get a certified copy of your conviction, complete the required application, and send it in, making sure to keep a copy of everything for your own files because nothing will be returned to you.  (The ACLU website has an application here, but since it’s hard to tell if the application is current, you may want to use the Florida Parole Commission’s application here, instead.)  Follow all instructions.  As part of your application, it may help to include letters of recommendation from members in your community, such as any employers, leaders of your church, or leaders of any community organizations that you are involved with.  Letters from your own family members may not be given as much weight.

(10) After applying, be prepared to wait months before hearing back.  If your request requires a hearing, you will be scheduled to meet with an Examiner of the Florida Parole Commission for an interview.  The examiner may also contact people who sent letters of recommendation on your behalf, employers, or other individuals who may have information about you.

(11) If your case required a hearing, and your application is granted, an Executive Order will be prepared, signed by the Clemency Board members, and a copy mailed to you.  If your application did not require a hearing, you’ll be sent a Certificate of Restoration of Civil Rights in the mail.

Criminal defense attorneys and others wanting to learn more about how to restore civil rights in Florida can go to the website for the Florida Parole Commission or the Florida ACLU.  The Florida Parole Commission’s contact information is here.

Florida Supreme Court Opinions Released October 27, 2011:Jury Instruction Errors, An Evidentiary Hearing on Possible Brady and Giglio Violations, and No More Filings Allowed for a Frequent Filer

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This week has just flown by.  Since I am a bit pressed for time, I decided to make a quick report of a few of the opinions released by the Florida Supreme Court on October 27, 2011.

1.)  The Court reversed six cases based on jury instruction issues.  In each of the cases, the Court remanded the cases back to the District Courts of Appeal for consideration and application of the recent opinion of State v. Montgomery, 39 So. 3d 252 (Fla. 2010) (holding that because Montgomery, who had been convicted of second-degree murder, was entitled to an accurate jury instruction on the necessarily lesser included offense of manslaughter by act, the use of the then-standard jury instruction on manslaughter by act constituted fundamental reversible error because it erroneously required the jury to find that Montgomery intentionally caused the death of the victim).  The cases reversed include Zeigler v. State, No. SC09-2082, Valdes-Pino v. State, No. SC10-63, Burgos v. State, No. SC10-78, Bonilla v. State, No. SC10-141, Solano v. State, No. SC10-1350, and Francis v. State, No. SC10-1881.

2.) In Mungin v. State, No. SC09-2018, a death penalty case, the Court reversed a trial court’s order which had summarily denied a successive motion for postconviction relief.  In a 22 page opinion, the Court remanded Mungin’s Giglio and Brady claims back to the postconviction court for an evidentiary hearing.  Although the opinion is fact driven, it is still worth reading for the Court’s discussion and application of Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972).

3.) Finally, in James v. Tucker, No. SC11-745, the Court banned Mr. James from filing any more pleadings attacking his conviction unless they are signed by a member in good standing of the Florida Bar.  Apparently, Mr. James has become what some criminal defense attorneys refer to as a “frequent filer,” and the Court said “enough is enough.”

Shelton update: Florida Supreme Court Accepts Jurisidiction to Review Constitutionality of Florida’s Drug Possession Statute, Section 893.13, in State v. Luke Jarrod Adkins, SC11-1878

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A quick update on the hot topic that began this last July: Shelton and the constitutionality of Florida’s drug possession statute.  On October 12, 2011, the Florida Supreme Court issued an Order indicating that it will accept jurisdiction to review the constitutionality of Florida’s Drug Possession statute, section 893.13.  As practically every Florida criminal defense attorney knows by now, the Shelton opinion held that the statute is unconstitutional.  Initial, Answer and Reply Briefs are due in the Supreme Court by November 2, November 16, and November 23, 2011, and oral argument is set for December 8, 2011.  You can see the Florida Supreme Court docket for State v. Luke Jarrod Adkins, SC 11-1878, here.  You can see my previous posts on the issue here, here, here, and here.

Florida’s Fourth DCA Reverses Conviction for Second Degree Murder, Addresses Stand Your Ground and Duty to Retreat: Dorsey v. State, 4D09-1940

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Florida’s criminal defense attorneys know that jury instructions are often the basis for an appeal and reversal.  Dorsey v. State, 4D09-1940, issued on October 18, 2011, is the latest jury instruction opinion issued by the Fourth DCA.

Dorsey had been convicted of second degree murder and weapons charges after he shot and killed two individuals in a fight at a keg party.  Concluding that the evidence would only support a conviction for manslaughter, the Court noted that it would ordinarily reverse and remand for the entry of a judgment of conviction for manslaughter.  However, based on an error in the jury instructions, a retrial on the charge of manslaughter was required.

As can be seen from the opinion, the Court was presented with the issue of how Florida’s Stand Your Ground statute should apply in conjunction with the jury instruction on justifiable use of deadly force when the defendant is engaged in an unlawful activity at the time of the use of deadly force.  In Dorsey’s case, because he was a convicted felon in possession of a firearm at the time he shot the two victims, defense counsel requested that the Court not instruct the jury on today’s standard instruction based on the Stand Your Ground statute.  The trial court disagreed, and defense counsel then requested that the court instruct the jury based on the pre-2005 standard jury instruction on the justifiable use of deadly force.  The trial court refused the request, and gave the standard jury instructions.  In finding that the trial court erred, the Court noted that today’s standard jury instructions simply did not  address the  situation where a defendant is engaged in unlawful activity at the time the deadly force is used.  As a result, the Court held that based on the unique circumstances of the case, the trial court should have given today’s standard jury instruction based on the Stand Your Ground law, as well as the pre-2005 instruction because the pre-2005 instruction properly addressed the duty to retreat in situations where the defendant was engaged in unlawful activity.  In the alternative, the trial court could have simply omitted today’s instruction based on the Stand Your Ground statute, and instructed the jury on the pre-2005  instruction alone.  The Court also reaffirmed the principle that where deadly force is used while a defendant is engaged in unlawful activity, or is attacked at a place where he did not have the right to be, the common law duty to retreat still applies.

Some Encouraging News for Florida Criminal Defense Attorneys

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As I was reading the latest edition of the Florida Bar News, dated October 15, 2011, I came across two points of encouraging news that I wanted to pass along on this rainy day in South Florida.

The first report states that the Florida Bar’s Professional Ethics Committee has voted to consider issuing an advisory opinion saying that it would be unethical for prosecutors to ask, as part of a plea bargain, that criminal defendants waive future claims of prosecutorial misconduct, and for criminal defense attorneys to advise their clients to waive any claim of ineffective assistance of counsel.  From my experience, the practice of requiring waivers as part of the plea bargaining process is more prevalent in Federal court than in State court.  While I served as a Law Clerk in the Southern District of Florida, I was amazed to see that so many plea offers contained waivers of such basic rights to due process.  While I am glad to see that the issue is being given serious consideration, I find it really sad that the practice of requiring Florida’s criminal defendants to waive some of their basic rights to due process can only be stopped by the issuance of a formal ethics opinion.

In a second report, the economics behind Florida’s death penalty are discussed.  According to the Florida legislators who back HB 4051, it is actually more expensive to carry out the death penalty than to house prisoners for life.  If passed, HB 4051 would eliminate Florida’s death penalty.  (Note: a previous Senate Bill, SB 1898, died in committee in May of 2011).

Finally, in a third report, the Florida Bar’s Criminal Law Section has decided to begin a review of Florida’s death penalty procedures.   Those who read my blog are familiar with my thoughts on the issue, so I won’t say anything more than “It’s about time!”  Since I’m a skeptic when it comes to government, I’m not going to sit here and expect major changes overnight, but at least someone in Tallahassee, apart from the Florida Supreme Court dissenting Justices, is starting to take a look at the serious problems with Florida’s death penalty procedures.


United States Court of Appeals for the Eleventh Circuit to Rehear Cases Relating to the Fair Sentencing Act en Banc

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In an important move, the United States Court of Appeals for the Eleventh Circuit issued two Orders on October 4, 2011, indicating that it will rehear two federal drug cases, United States v. Carmelina Vera Rojas, No. 10-14662, and United States v. Charles Levern Hudson, No. 10-14428, en banc.

The cases concern the application of the Fair Sentencing Act to federal drug offenses.  In the original Rojas opinion, found at 645 F.3d 1234 (11th Cir. 2011), the Eleventh Circuit held that the Fair Sentencing Act of 2010 (“FSA”), PL111-220, applies to defendants who committed crack cocaine offenses before August 3, 2010, the date of its enactment, but who are sentenced thereafter.  In the original Hudson opinion, the Court reaffirmed its holding that the FSA does not apply retroactively to offenses that were committed before the effective date of the Act.

United States Attorney General Eric Holder has reportedly flip-flopped on his position regarding application of the FSA.  At one time, he had instructed Federal prosecutors to argue that the revised FSA’s minimum mandatory sentences, which had been designed to alleviate sentencing disparity between offenses relating to crack and powder cocaine, was not applicable to defendants’ cases if they committed their offenses before the day the law went into effect, August 3, 2010, even if they had not yet been sentenced.   Then, in July of 2011, Holder issued a statement indicating that the FSA should be applied to all sentencings that occured on or after August 3, 2010, regardless of when the criminal episode took place.

Caught in the middle of this flip-flop are Carmelina Vera Rojas and Charles Levern Hudson.  As noted in the original opinion, 645 F.3d 1234, Rojas pleaded guilty to one count of conspiring to possess with the intent to distribute 50 grams or more of cocaine base (crack cocaine), and two counts of distributing 5 grams or more of cocaine base (crack cocaine).  Her case was reportedly set for sentencing on the day that the FSA was signed, but the District Court ordered legal briefing on whether the FSA would apply to her case.  Ultimately,  the District Court agreed with the prosecutors that the FSA did not apply, and sentenced her to 10 years in prison.  Had the District Court applied the FSA, Rojas could have been sentenced to 5 years.  As for Hudson, the Eleventh Circuit affirmed his sentence, which was based on the higher statutory mandatory minimums that were in effect in 2007, rather than the lower sentences under the FSA.  In short, neither Rojas nor Hudson were permitted to enjoy the benefits that the FSA was intended to give.

One final note: after the Rojas opinion originally appeared on the Eleventh Circuit website, it strangely disappeared, then reappeared again.  If you have time and want to read about the disappearance of reappearance of the opinion on the Eleventh Circuit site, click here.

Florida criminal defense attorneys who handle drug cases in Federal court will have to keep a close eye on these cases.

The Florida Innocence Commission Reviews Phenomenon of Mistaken Identification in Criminal Cases

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The Florida Innocence Commission, whose purpose is to conduct a comprehensive study of the causes of wrongful conviction, was created by Florida Supreme Court Administrative Order AOSC10-39, issued on July 2, 2010.  For those Florida criminal defense attorneys who are interested in the hot topic of eyewitness mistaken identification, or “misidentification,” which is the term used by some Courts, a copy of the Commission’s June 2011 Report should provide some interesting and insightful reading.

First, by way of background, you may wish to review one of my previous posts on the topic of eyewitness mistaken identification in Florida, Texas, and other states here.

I strongly urge Florida’s criminal defense attorneys to read the Commissions’ June 2011 report.  Not only does it summarize the testimony of one of our country’s top experts in the area of eyewitness mistaken identification, Professor Gary L. Wells of Iowa State University, but the report also provides valuable insight into the legislative process and current police agency standards for police lineups.  Although the Commission voted in May of 2011 that Florida law enforcement agencies should adopt uniform Standards for Florida State and Local Law Enforcement Agencies in Dealing with Photographic or Live Lineups in Eyewitness Identification, and Commentary and Instructions, as well as to request consideration of revising Florida’s current jury instructions to account for cases of eyewitness mistaken identification, it should be noted that not everyone in the State of Florida is in favor of mandating the implementation of uniform, statewide procedures to govern the administration of police lineups.  Who could possibly oppose uniform standards?  Why, various law enforcement agencies themselves, and the Florida Prosecuting Attorneys Association.  You can read all about it in the Commission’s report.

The Commission’s next hearing on this topic, and others, will be held on Monday October 12, 2011, at Orlando’s Rosen Hotel.  Members of Florida’s Association of Criminal Defense Lawyers are encouraged to attend if they are able.

United States Supreme Court Begins Oral Arguments Today, October 4, 2011

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Well, it’s October, and although there is a chill in the air in some parts of the country, there are still warm breezes here in South Florida.  October also means the beginning of the new term for the United States Supreme Court.  In a recent post, I discussed some of the interesting cases that the United States Supreme Court has agreed to review during this new term, which began yesterday, October 3, 2011.  Today, October 4, 2011, the High Court begins hearing oral arguments.  For all the criminal defense attorneys and Supreme Court watchers who are interested, the Court has set oral argument in the cases I mentioned, as follows:

MAPLES V. THOMAS, INTERIM COMMISSIONER, No. 10-63:  Today, October 4, 2011.  Issue: procedural default; habeas petition.  See the docket here.

LAFLER V. COOPER, No. 10-209:  October 31, 2011.  Issue: ineffective assistance of counsel during plea.  See the docket here.

MISSOURI V. FRYE, No. 10-444:  October 31, 2011.  Issue: ineffective assistance of counsel during plea.  See the docket here.

GREENE V. FISHER, No. 10-637:  October 11, 2011.  Issue: timeliness of habeas petition.  See the docket here.

MESSERSCHMIDT V. MILLENDER, No. 10-704: December 5, 2011.  Issue: 4th amendment; police execution of warrant later deemed invalid.  See the docket here.

GONZALEZ V. THALER, No. 10-895:  November 2, 2011.  Issue: timeliness of a habeas petition.  See the docket here.

FLORENCE V. BOARD OF CHOSEN FREEHOLDERS, No. 10-945:  October 12, 2011.  Issue: 4th Amendment; strip searches at jail.  See the docket here.

UNITED STATES V. JONES, No. 10-1259: November 8, 2011.  Issue: 4th Amendment; warrantless use of a tracking device.  See the docket here.

Teen Charged for Fixing his Bike?!

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This has got to be one of the dumbest criminal cases I have ever heard of.  The Palm Beach Post reports that a kid in the Florida panhandle needed to fix his bike, but he had no tools.  So, he thought he’d go to his local Sears store to use some tools there.  A clerk saw him, told him to leave, but the kid was so desperate to fix his bike, he returned a bit later to finish the repairs.  Can you believe the store clerk called the cops and the kid got charged with theft, trespassing, and resisting an officer without violence?  Ok, I agree with the store that the kid shouldn’t have been using the Sears tools department for his personal garage, but does that mean he deserved to be charged with 3 crimes?  This case is as bad as the cases I saw in Broward where the homeless people were actually arrested and brought to jail for being in possession of a stolen milk crate.  (I am not kidding, folks).   All I can say is that things must be really slow in the Florida panhandle!  Let’s hope a criminal defense attorney up there can step in and get those charges dismissed ASAP.