Tag Archives: Criminal

After Winning a New Trial, Goodman Loses a Lawyer, and Death Row Inmate William Van Poyck Wins A Team of Lawyers

Posted by

Well, after winning a new trial (while the case is on appeal, no less) John Goodman lost a key member of his criminal defense team, Robert Black.  For the articles in the Palm Beach Post and Sun Sentinel, click here and here.  Maybe this means that Goodman and the State have reached a plea agreement?

Meanwhile, the Palm Beach Post also reports that there’s quite a bit of legal havoc in the William Van Poyck death penalty case.  Although I have not yet been able to locate the order issued by the Florida Supreme Court, the Court has apparently pulled a surprise move.  Even as Van Poyck’s June execution date approaches, the Court appears to have appointed a team of lawyers from Palm Beach County to represent Van Poyck.  For the article in the Palm Beach Post, click here.

To me, the Van Poyck case highlights just a fraction of what is wrong with Florida’s death penalty.  If the case is still important enough for the court to appoint new lawyers, even at this late stage, why should the Governor be signing the warrant for Van Poyck’s execution?  And why is it that after years of being unable to reach any sort of agreement with regard to amending the death penalty statute so as to render it constitutional, (why bother with that?), the Florida legislature is able to enact legislation that limits the appeals process, thereby actually speeding up the death penalty executions?

Is Speeding Up Appeals Process for Florida’s Death Row Inmates A Good Thing? Senator Joe Negron Thinks So

Posted by

Well, the week is practically over and I’ve not had as much time for reading opinions as I like, but I came across an interesting article from the Palm Beach Post that I thought deserved mentioning.  According to the report, Florida Senator Joe Negron is sponsoring the “Timely Justice Act of 2013″ in an effort to speed up the appeals process for death-row inmates.   According to Negron, the bill is “designed to streamline litigation and cut out duplicate or baseless appeals filed by prisoners after the state Supreme Court has upheld a murder conviction and death sentence.”

Any Florida criminal attorney (whether you handle trials or appeals) knows that death row appeals can take years to conclude.  And everyone who’s familiar with the system also knows there will always be baseless appeals filed by certain individuals.  But in my view, to try to legislate the time for the appeals process seems misdirected.  After all, we read stories every day about inmates who are exonerated after spending years on death row.  Why cut off their time for appealing their conviction with another arbitrary deadline?  Instead, the legislature should focus on other things of greater constitutional concern–for example, amending the death penalty statute to require a unanimous recommendation by the jury before the death penalty could be imposed.  As noted in the Palm Beach Post report, Florida is the ONLY state that does not require a unanimous jury recommendation.  Or perhaps the legislature could spend their time on something even more important, like repealing the death penalty altogether.  Isn’t it time Florida joined the other civilized States in the U.S.?

You can view the text of the bill, and other information about the bill (SB 1750), here.

This is News??

Posted by

Have any of you read the latest copy of the Florida Bar news (February 15)?  The title for one of the articles on the front page reads, “Study Suggests Conflict Attorneys Are Underpaid.”  Shocking!  (You can check out my previous post showing exactly how underpaid criminal conflict attorneys are by clicking here).

Sarcasm aside, I am hopeful that this article means that there may be some movement on this issue in the Florida legislature in the future.  I know, I know, it may be too much to hope for, but you never know . . . Wouldn’t it be great for Florida’s criminal defense and criminal appeals attorneys to be able to earn a realistic fee for accepting appointments in criminal cases again?

Florida Supreme Court Affirms Conviction Despite Improper Comments from Prosecutor, and Fourth DCA Reverses One of its Own on Issue of Pre-Trial DNA Testing Procedures

Posted by

The Florida Supreme Court and Fourth DCA have both issued interesting opinions in the last week, so I though I’d pass them along.

First, in Gary Fontaine Bell v. State, SC10-916, the Court examined a series of statements made by the prosecutor.  Although the analysis of each statement is a bit tedious, the case is good to read because it illustrates an important lesson for criminal defense and criminal appeals attorneys alike: to preserve an issue for appeal, you have to object, and renew your objections at the appropriate time.  In Bell, athough the court found that several statements were improper, the Supreme Court nevertheless affirmed Bell’s conviction for lewd and lascivious molestation on a victim under 12 by a person 18 or older because Bell failed to preserve the issues for appeal, and because the comments did not constitute fundamental error.  See Bell, SC10-916, slip op., pgs. 16-18.  The statements examined by the Court include:

(1) During closing argument, with regard to the age of the victim, the prosecutor stated, “so without any evidence contradicting [the State’s evidence,] the State has proven to you beyond a reasonable doubt the first element of the charge.”  The Court found this statement did not constitute an improper comment on Bell’s right to remain silent because the statement concerned an issue that witnesses other than Bell could have refuted.  Also, the Court found no improper burden shifting.  See Bell, SC10-916, slip op., pgs. 2, 11-12.

(2) During voir dire, the prosecutor asked questions including “[n]ow, would anyone just right off the bat tell me that if all I have is a [sic] word of a child to evaluate as the evidence, that that’s not enough; I would need more?”; “[w]ithout hearing any other thing about the case, could you tell me right now that the testimony of a child alone would be insufficient for you?”; and, “if you heard the testimony of a child telling what happened and there were no other eyewitnesses, would that not be enough for you under any circumstances?”  After determining that Bell failed to preserve the issues for appellate review because he failed to renew his objection prior to the jury being sworn, the Court also found that the statements did not comment on Bell’s right to remain silent.  See Bell, SC10-916, slip op., pgs. 3-4, 19-20.

(3) During the initial portion of closing argument, the prosecutor stated “so without any evidence contradicting that the State has proven to you beyond a reasonable doubt the first element of the charge;” “in cases like this, it is always a one-person’s word against another;” “it is the word of [the victim] against the plea of not guilty that Gary Bell has entered;” “[s]o if you are looking for a reason to not believe [the victim] there isn’t one.  Because there is no evidence that she would have made this up at this particular time under these particular circumstances;” and, “[t]his is also a very important day for [the victim], her family and the people of the State of Florida who I represent.”  The Court found such statements either impermissibly commented on Bell’s right to remain silent, or otherwise implied that Bell had a burden of proof.  See Bell, SC10-916, slip op., pgs. 5, 6, 7, 13, 14.

(4) In the rebuttal portion of closing argument, the prosecutor stated, “Well, did you hear any testimony, any evidence that supports that statement?”  The Court found that such statement was proper, as it was an invited response.  See Bell, SC10-916, slip op. pgs. 8, 16.

Finally, in Esdras Cardona v. State, 4D09-3636, the Fourth District held that the trial court erred in not holding an evidentiary hearing before ordering specific procedures for DNA testing.  The most interesting thing of the opinion?  The trial judge who was reversed is Judge Gerber-who now sits on the Fourth DCA.

Happy reading!

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

Posted by

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.

United States v. Hall, No. 11-14698: Eleventh Circuit Reverses 4-Level Enhancment For Fraudulent Use of Identifying Information to Obtain Credit Cards

Posted by

I had to do a double-take when I read the opening paragraph of United States v. Erica Hall, No. 11-14698:

Hall pled guilty to conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349 (Count 1); conspiracy to commit identity theft and access device fraud, in violation of 18 U.S.C. § 371 (Count 2); wrongfully obtaining and transferring individually identifiable health information for personal gain, in violation of 42 U.S.C. § 1320d-6(a)(2) (Count 3).  When imposing Hall’s sentence, the district court applied a four-level enhancement under U.S.S.G. § 2B1.1(b)(2)(B) because it found that the offense involved more than 50 but less than 250 victims.  In objecting to the enhancement, Hall argued that the mere transfer or sale of identifying information unlawfully or without authority does not equate to the actual use of identifying information for a fraudulent purpose.  Therefore, because the conspirators actually used only identifying information for 12 out of 141 individuals to obtain fraudulent credit cards, Hall argued that the two-level enhancement under U.S.S.G. § 2B1.1(b)(2)(A) was more appropriate because it applies to more than 10, but less than 50, victims.  The district court rejected Hall’s argument, but we do not.  Accordingly, we vacate Hall’s sentence and remand for resentencing.

Wow.  Those are words not often found in an Eleventh Circuit opinion.  No doubt that Hall’s appellate counsel and other criminal defense lawyers practicing in the Southern District of Florida will be pleased.

In another case, Norman Mearle Grim, Jr.  v. Fla. Sec’y, Dept. of Corrs., No. 11-11890, the Eleventh Circuit reverted to its usual self and denied a death-row inmate’s habeas petition.  In the opinion, the Court again rejected a constitutional claim based on Ring v. Arizona, 536 U.S. 584 (2002).  In support, the Court pointed to a recently issued decision, Evans v. Sec’y, Fla. Dep’t of Corrs., 699 F.3d 1249, 1264 (11th Cir. 2012), where the Court held that Florida’s death penalty statute is constitutional.  For my previous post on the Evans case, click here.

Florida Supreme Court Finds Noise Control Statute, Section 316.3045, Is Unconstitutional, and Low Pay for Florida’s Criminal Conflict Attorneys Getting Statewide Attention

Posted by

Criminal defense attorneys who handle cases involving traffic stops may want to take a few minutes to read an opinion released by the Florida Supreme Court today.  In State v. Catalano, No. SC11-1166, the Florida Supreme Court found that the noise control statute, section 316.3045, Fla. Stat., is unconstitutional.  After engaging in a classic constitutional law/First Amendment analysis, the Court concluded that the statute is unconstitutionally overbroad and an impermissible content-based restriction, and that severance of section 316.3045(3) is not an appropriate remedy to preserve the constitutionality of the statute.

Obviously, if you’ve got a client who’s been charged with a violation of this statute, you should consider filing a motion to dismiss based on Catalano.  However, even if you’ve got  a client who’s charged with only a violation of a similar local ordinance, you might want study the Catalano opinion to determine whether you can move to dismiss the charge, based on an analogy to Catalano.  Before you do so, be sure to determine whether the local ordinance in your case is structured similarly to section 316.3045.

On another note, for those of you who handle appointments in criminal cases, you’re no doubt aware of the State’s changes to the payment structure which went into effect in July of 2012 when the Florida Legislature passed SB 1960.  (If not, you can read my previous post summarizing the changes here).  Well, if you do handle criminal appointments for either trials or appeals, I came across a thorough and well written article in the December 15, 2012, edition of Florida Bar News today that you may want to read.  Hopefully, the publication of the article means that the issue is gaining statewide attention.   Greater attention can only help the plight of Florida’s criminal conflict counsel.

Pagan v. State, No. 2D11-3804: Florida’s Second DCA Issues Opinion Touching On Issue of Plea Bargain Waivers of Claims of Ineffective Assistance of Counsel

Posted by

On November 14, 2012, the Second DCA issued an opinion in Pagan v. State, No. 2D11-3804, wherein the court held that the trial court erred in summarily denying Pagan’s Rule 3.170(l) motion to withdraw his plea based on misleading advice of counsel.  According to the opinion, after Pagan was sentenced to 30 years for his involvement in the death of a child, Pagan moved to withdraw his plea.  The trial court appointed conflict free counsel to represent Pagan, and a hearing was set.  Just before the hearing commenced, the State offered Pagan a reduced sentence of 15 years in exchange for Pagan’s waiver of any right to seek collateral relief.  The court gave Pagan time to consult with his attorney, after which Pagan accepted the State’s offer.  The court resentenced him to the lesser term, remarking to Pagan that “you would be agreeing that you will withdraw this motion to withdraw your plea and you will also be agreeing that you will not file any further post-conviction motions attempting to reduce this sentence that I am about to impose.”  Later the court added: “And just to reiterate part of the deal is you will not be filing any more post-conviction motions.  This—this is it. You filed it.  It worked for you.”  After resentencing, Pagan filed several Rule 3.850 motions, alleging that he received ineffective assistance in connection with the State’s offer to resolve his rule 3.170(l) motion.  Predictably, the trial court denied each of his motions.  On appeal, the Second District reversed.

In support of its holding, the Court first noted that a Rule 3.170(l) motion is not a postconviction matter, and that a defendant is entitled to effective assistance of counsel in connection with such motion.  See Pagan, slip op., pg. 3.  The Court also observed that “a defendant can waive his right to collaterally attack his judgment and sentence when the waiver is expressly stated in the plea agreement and he knowingly and voluntarily agrees to the waiver.”  See Pagan, slip op., pg. 4 (citing Stahl v. State, 972 So. 2d 1013, 1015 (Fla. 2d DCA 2008); Williams v. United States, 396 F.3d 1340, 1342 (11th Cir. 2005)). However, “ineffective assistance of counsel claims attacking the advice received from counsel in entering into the plea and waiver cannot be waived.”  See Id.

While the opinion seems to have reached the right result by holding that Pagan did not waive his claim of ineffective assistance of counsel, it is troubling that the court’s opinion closed with a cautionary note:

We remand to the circuit court to conduct an evidentiary hearing on
Pagan’s allegations of ineffective assistance in connection with the agreement to
resolve his rule 3.170(l) motion. We caution that Pagan may subject himself to a worse
result if he goes forward with this process, but that is his decision to make.

Pagan, slip op. pg. 4.

I also find it troubling that the Court failed to address the obvious ethical issue presented by the opinion: whether a defendant can be offered a plea bargain that requires him or her to waive future claims of ineffective assistance of counsel (or prosecutorial misconduct)?  Florida’s criminal appeals and criminal defense attorneys may remember that this past August, the Professional Ethics Committee of the Florida Bar issued Proposed Ethics Advisory Opinion 12-1, which states that plea bargains which require defendants to waive future claims of prosecutorial misconduct or ineffective assistance of counsel violate Bar rules.

To view a few of the articles that appeared in the Florida Bar News regarding the Advisory Opinion, click here and here.  Although the Advisory Opinion has not yet been adopted by the Florida Bar Board of Governors, if there is no appeal of the proposed opinion, the Advisory Opinion will become final.

Florida Supreme Court Amends Rules of Criminal Procedure

Posted by

In case you haven’t noticed, the Florida Supreme Court amended the Rules of Criminal Procedure today, October 18, 2012.  You can view the amendments by clicking here.  The amendments aren’t too long to read through– only 17 pages, so you may want to take a look.  Otherwise, the highlights are as follows:

Rule 3.191(h) (Speedy Trial):  Amended to clarify when a notice of expiration of time for speedy trial is timely filed and served.  By striking the phrase “on or”
from the portion of the rule providing “on or after the expiration of the periods of time for trial provided in this rule,” the rule clarifies that only after the expiration of time for speedy trial is a notification of such an event timely filed.

Rule 3.220(h)(1) (Discovery Depositions):  Amended to reflect that upon application, either a pro se litigant or an attorney for either party may have the court or clerk issue subpoenas.

Rule 3.410 (Jury Request to Review Evidence or for Additional Instructions):  Amended in two respects.  (1) The Rule now permits the playback of digital recordings of trial testimony.  (2) The rule is amended to allow the trial court, in its discretion, to respond in writing to a juror’s question rather than bringing the jury back into the courtroom in order for the trial judge to orally respond to the question.  (Cautionary note to criminal trial attorneys regarding this amendment: if the Judge in your case decides to answer the juror’s question in writing, be sure to make a record of the Judge’s written answer for any appeal.  I suggest either asking the Judge to read his or her written answer into the record before the written answer is given to the juror, or– even better–ask the Judge for a copy of the written answer to be entered into the record as a defense exhibit.  You never know when an issue could pop up in a future appeal!)

Rule 3.800(a) (Correction, Reduction, and Modification of Sentences—Correction):  Amended to clarify that a defendant may seek correction of an allegedly erroneous sexual predator designation under the rule, but only when it is apparent from the face of the record that the defendant did not meet the criteria for designation as a sexual predator.  This amendment is consistent with the Court’s ruling in Saintelien v. State, 990 So. 2d 494, 497 (Fla. 2008).

United States v. Griffin, No. 11-15558: Eleventh Circuit Considers Whether Unrelated Police Questioning Posed During Terry Stop Violate the Fourth Amendment

Posted by

In reviewing recent Eleventh Circuit opinions, I came across United States v. Griffin, No. 11-15558, an opinion where the Court considered the issue of whether unrelated police questions posed during a valid Terry stop violate the 4th Amendment.  The answer?  Not necessarily.  As noted at page 13 of the slip opinion, such questions would not violate the 4th Amendment unless they “measurably extend the duration of the stop.”  Like other Circuits, the court refused to adopt  bright-line “no prolongation rule,” and instead stated that the analysis should focus on whether the time it took the officer to ask the questions, and for Griffin to answer them, measurably extended or prolonged the duration of the stop so as to render the stop unreasonable under the 4th Amendment.  Griffin, slip op., pg. 14.  In conducting this analysis, the Court stated that one should assess the length of the stop as a whole, considering all the facts and circumstances.  Griffin, slip op., pg. 14.  If you are a criminal defense attorney who deals with Fourth Amendment issues a lot, then this would be a good opinion for you to read.

The opinion was authored by Judge Adalberto Jordan, who formerly presided in the United States District Court for the Southern District of Florida.  (You can read my post about his elevation to the Circuit Court here).  I have not yet read any other opinions authored by Judge Jordan, but I hope that the Griffin opinion is a sign of things to come.  If you are an attorney who handles criminal appeals, you may appreciate several things about the Griffin opinion.  At 19 pages long, the opinion is relatively short, by Eleventh Circuit standards.  Also, the opinion is written in a direct manner, flows logically, and contains nothing which might make anyone think that the Court had given anything less than full consideration to the positions of each of the parties.  Isn’t that what the best appellate opinions do?  I don’t know about you, but I look forward to reading more opinions by Judge Jordan!