Appellate Law, Criminal Defense, Criminal Appeals & Criminal Appellate Review and Post Conviction Relief in Florida Courts, Federal District Courts and the 11th Circuit for Criminal Attorneys, Criminal Lawyers & Appellate Lawyers
The United States Court of Appeals has published a couple of interesting opinions in the last few days. The first, Odulene Dormescar v. U.S. Attorney General, No. 10-15822, concerns the removal of a person convicted of an aggravated felony. The opinion is a bit long (31 pages), but if you are a criminal defense lawyer who deals with immigration issues, it’s probably a good idea to take a few minutes and review the opinion.
The second opinion is also long (over 70 pages), but still quite interesting in that the opinion contains a partial dissent, which is a rarity in the Eleventh Circuit. In AnthonyJohn Ponticelli v. Sec’y, Florida Dept. of Corrections, No. 11-11966, the Eleventh Circuit affirmed the denial of a petition for writ of habeas corpus for death row inmate Ponticelli. For those criminal defense and criminal appeals lawyers who handle habeas petitions in death cases, this might be a good opinion to review. After all, it’s not everyday that you get to read an Eleventh Circuit opinion where at least one of the Judges finds that the Florida Supreme Court misapplied Strickland, and that habeas relief should have been granted. Judge Martin’s partial dissent begins at page 72.
Finally, for those of you who are interested in following the criminal defense bar’s attempts to challenge S.B. 1960, I have heard that the docket for the case in Florida’s Third District Court of Appeal is 3D12-2034. The style of the case is David S. Markus v. Hon. Joel H. Brown.
South Florida criminal defense lawyers who are interested in Florida’s latest legislative reforms to payment for court appointed counsel, otherwise known as S.B. 1960, might like to know that the Broward and Miami Dade Associations of Criminal Defense Lawyers have filed a petition seeking to challenge the constitutionality of S.B. 1960.
According to the petition, Petitioners ask the Fourth DCA to (1) issue a writ of certiorari quashing the 17th Judicial Circuit’s Administrative Order number 2012-45-Gen, which appointed Judge Ilona Holmes as the only Judge to hear requests by General Registry attorneys to exceed the statutory caps; (2) issue a writ of quo warranto determining that Melodee Smith and other members of the Limited Registry are ineligible to hold the office of court-appointed counsel due to the illegality of the Florida statute under which the Limited Registry was established; and, (3) issue a writ of prohibition prohibiting the Seventeenth Judicial Circuit’s Clerk of Court, Howard Forman, from appointing attorneys from the Limited Registry when private court-appointed counsel is required.
This seems like an interesting case to watch. For a link to the case, DelGaizo v. Hon. Peter M. Weinstein et al, No. 4D12-2548, click here.
In a rare move, the United States Court of Appeal for the Eleventh Circuit has voted to rehear a case en banc. The case, Michael Duane Zack III v. Tucker, No. 09-12717, concerns the issue of timeliness of federal habeas claims. In the original opinion, released in January, 2012, the Court held that the District Court erred in applying the statute of limitations separately to each claim in the petition to find that only certain claims were timely filed. I suspect that most criminal defense and criminal appellate lawyers would agree that it seems logical that the timeliness of a federal habeas petition should be viewed as to the whole petition, not claim-by-claim. I certainly hope that the Court does not change its conclusion on rehearing. The order granting rehearing en banc can be viewed here. For those of you who practice in the Southern District of Florida, take note that our own Judge Jordan’s name appears on the order granting rehearing.
This is a follow up to my last post, where I discussed an opinion issued by the United States Supreme Court, Missouri v. Frye, No. 10-444, wherein the Court held that a criminal defense lawyer’s failure to communicate a plea offer may provide a basis for federal habeas relief. In Lafler v. Cooper, No. 10-209, issued the same day as Frye, the Court addressed the issue of what remedies may be available to such a federal habeas petitioner.
Lafler went to trial rather than accept a plea deal. Because Lafler received a more severe sentence at trial, one 3½ times more severe than he likely would have received by pleading guilty, all the parties conceded that Lafler’s decision to reject the plea offer was the result of ineffective assistance during the plea negotiation process. As a result, the specific issue addressed by the Court was “how to apply Strickland’s prejudice test where ineffective assistance results in a rejection of the plea offer and the defendant is convicted at the ensuing trial.” Lafler, slip op. at pgs. 4-7.
Although the District Court ordered specific performance of the original plea agreement as a remedy, the Court held that the correct remedy under the circumstances is to order the State of Michigan to reoffer the plea agreement. If Lafler accepts the offer, the state trial court would then be free to exercise its discretion under the relevant State law to determine whether to vacate the convictions and resentence Lafler pursuant to the plea agreement, to vacate only some of the convictions and resentence Lafler accordingly, or to leave the convictions and sentence from trial undisturbed. As noted by the Court, its decision “leaves open to the trial court how best to exercise that discretion in all the circumstances of the case.” Lafler, slip op. at pg. 16.
In my view, this decision is yet another step by the Court to becoming a kinder, more gentler Court for federal habeas petitioners. For one of my previous posts on the Court’s change, click here. To read more about the oral arguments in the companion cases of Frye and Lafler, click here.
This is one of the craziest things I have seen a Judge do in a long time. And I can say, after having been a prosecutor there, that this kind of stuff only happens in Broward County.
I saw the report on CNN HLN this morning, but NBC Miami has the video here. After Joseph Bray was arrested for domestic violence by Plantation Police, he was brought before Judge John “Jay” Hurley for his first appearance. Although bonds are normally entered at first appearance hearings, Judge Hurley deviated from the standard procedures and instead ordered Mr. Bray, in lieu of bond, to buy his wife, Sonja, a card, followed by dinner at Red Lobster and bowling. Judge Hurley thought the order was appropriate because the domestic violence arrest stemmed from the fact that Mr. Bray forgot to wish Sonja a happy birthday, Mr. Bray’s apparent lack of criminal history, and because Sonja, who is heard on tape, said she wanted Mr. Bray to come home.
I am really torn about this. On the one hand, sometimes Judges need to be free to craft sentences or orders to fit the circumstances of criminal cases. And the criminal defense lawyer in me believes that people charged with a crime should not be punished unnecessarily, especially if there are mitigating circumstances. On the other hand, as a woman, I find it unsettling that a Judge would laugh off the whole incident, and think that dinner and bowling would fix this. Ok, I know that the Judge did mention counseling on the tape also, but come on. Can a card, dinner and bowling really make up for the fact that the man’s hands were wrapped around his wife’s neck? Instead of getting cute, I tend to think that the Judge should have just ordered Mr. Bray to post bond like everyone else.