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

More Graham Fallout- Juvenile Charged With Attempted Murder Entitled To Bond

Florida’s criminal appeals and criminal defense attorneys who represent juvenile offenders should be aware of an opinion released by the Florida Supreme Court on October 10, 2013.  In Treacy v. Lamberti, SC12-647, the court reversed the 4th DCA’s denial of Treacy’s petition for writ of habeas corpus.  In his petition, Treacy argued that since he could not be punished to life imprisonment for the offense charged, attempted murder, in light of Graham v. Florida, 560 U.S. 48 (2010), he was entitled to bond.   The 4th DCA rejected his contentions not once, but twice.  Only on appeal to the Florida Supreme Court did Treacy finally win the relief he sought- the right to be entitled to bond.   This is a fairly straightforward opinion, so there’s not much for me to do other than pass it along, and urge you to keep this opinion handy for future reference.

Florida Supreme Court Issues Opinions Discussing Jury Instruction Pursuant to Section 812.025

The Florida Supreme Court has been back in session for a few weeks now, and it has recently issued 2 opinions on the proper application of section 812.025: Blackmon v. State, No. SC11-903, and Williams v. State, No. SC11-1543.

If you’ve been a criminal trial lawyer for any period of time, hopefully you’re familiar with section 812.025, which precludes a jury from finding a defendant guilty of both “theft and dealing in stolen property in connection with one scheme or course of conduct.”  Blackmon and Williams are almost the same procedurally: both were charged with counts of theft and dealing in stolen property, and both were convicted of both counts after trial.  The distinguishing factor is that in Blackmon, the trial court failed to instruct the jury on section 812.025 (Blackmon neither requested the instruction, nor objected to the court’s failure to so instruct the jury), while in Williams, the defendant’s request for the section 812.025 instruction was denied.

Both cases wound their way to the Florida Supreme Court.  In Blackmon, after discussing the various approaches employed by the District Courts of Appeal, the Supreme Court held (1) the trial court should have instructed the jury on section 812.025; (2) section 812.025 precludes a court from adjudicating the defendant guilty of both dealing in stolen property and theft; and, (3) although the trial court erred in failing to instruct the jury in accord with section 812.025, the error was not fundamental, and a new trial was not required.

In Williams, after being convicted of both the theft and dealing in stolen property counts, the court dismissed the theft count, and adjudicated him on the dealing in stolen property count.  On appeal, the Supreme Court answered two rephrased certified questions: (1) whether a trial court must instruct the jury pursuant to section 812.025 when both theft and dealing in stolen property charges are submitted to the jury; and, (2) whether the trial court’s denial of an instruction pursuant to section 812.025 requires the defendant to be given a new trial if the defendant is convicted of both theft and dealing in stolen property.  In answering both questions in the affirmative, the Court went on to hold that (1) a trial court must instruct the jury pursuant to section 812.025 when both theft and dealing in stolen property counts are submitted to the jury; (2) the trial court erred in denying the defendant’s request for the section 812.025 instruction; and, (3) the trial court’s error in failing to instruct the jury pursuant to section 812.025 was not harmless, and a new trial was required.

The lesson here: when you and your client go to trial on charges of theft and dealing in stolen property, you should request the jury to be instructed pursuant to section 812.025.  If you fail to do so, and the trial court fails to give the instruction, your client may not win a new trial on appeal.

Florida’s 4th DCA Applies New Analytical Framework for Claims of Assistance of Counsel

You may recall from two of my posts a few months ago that in Lafler v. Cooper, No. 10-209, and Missouri v. Frye, No. 10-444, the United States Supreme Court revised the analytical framework to be used for claims of ineffective assistance of counsel for failure to communicate plea offers.  (To see those posts, click here and here).  Well, Florida’s 4th DCA has now issued an opinion, Gribble v. State, 4D11-4352, addressing both of those US Supreme Court decisions, as well as the Florida Supreme Court decision of Alcorn v. State, 38 Fla. L. Weekly S397 (Fla. June 13, 2013).

In Gribble, the defendant appealed the summary denial of his 3.850 motion, wherein he alleged that his criminal defense attorney was ineffective for misadvising him of the maximum sentence he faced.  Based on counsel’s misadvice, Gribble rejected a plea offer.  After trial, he was convicted of driving on a suspended license, and the State requested habitualization.  The court sentenced Gribble to 8 years’ imprisonment, which is 3 years more than he was advised he could get.  According to Gribble, had counsel advised him that he could get 10 years as an habitual offender on the DWLS count, he would have taken the State’s 5 year plea offer.

On appeal, although the State conceded deficient performance by counsel, the State (predictably) argued that Gribble failed to prove that he was prejudiced because he was sentenced to only 8 years, which is less than the potential 10 years he faced.  However, the Court rejected the State’s argument, and noted that the correct analysis of the prejudice prong under Lafler, Frye, and Alcorn requires an examination of “whether the defendant has shown a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time, not whether he received the same sentence as what he was incorrectly advised.”  Gribble, slip op., pg. 2.  The court reversed the trial court’s summary denial of Gribble’s 3.850 motion, and remanded for an evidentiary hearing pursuant to Alcorn, Lafler, and Frye.

E-Filing in Florida’s Appellate Courts: A Work in Progress

Can you guess which of Florida’s appellate courts is not like the others?  If you handle criminal appeals on a regular basis, then you know that four out of five of Florida’s District Courts of Appeal are on eDCA, the electronic filing system begun by the 1st DCA a while ago: the First, Third, Fourth and Fifth DCA.  But one of them stands alone: the Second DCA.   While the other DCA’s opted to follow the course of the First DCA, and begin their foray into e-filing on eDCA, the Second is the only DCA to skip eDCA, and commence its foray into e-filing by jumping directly onto Florida’s Statewide e-filing Portal.  (the Florida Supreme Court did this as well a few months ago).  Today marked the first day of voluntary filing with the 2nd DCA through the Portal.

Have any of you tried filing with the 2d DCA through the Portal?  I did.  It leaves a lot to be desired.  Don’t get me wrong, e-filing definitely beats having to send  your briefs, motions, and responses via FedEx, followed by a courtesy copy by e-mail, but for some reason, the Portal does not seem to provide access to the court docket.  To see the appellate docket, you still need to go to the “online dockets” link from the Portal website, or at any of the DCA webpages, and those dockets are not real-time.  So in other words, you can submit something electronically, but it still won’t show up on the docket for several days.  The other thing I don’t like is that when you’re filing through the Portal, you don’t get a time-stamped copy to reflect the time and date of your e-filing.  Similar to the Federal CM/ECF system, the e-DCA system provides both of those functions.

If you are lucky enough to be in Federal court, then you get the ease of working with CM/ECF.  In my view, CM/ECF is the best e-filing system there is because you get a real-time docket, time/date stamps on your e-filed pleadings, electronic confirmation of your successful filing, and automatic e-service of your pleadings on the other parties in the case (except pro se parties).  E-DCA is a close second.  Although e-DCA lacks electronic service, e-DCA at least provides you an e-mail alert that a pleading or order was filed in the case, and a link to view the document.  Plus, e-DCA provides you with a real-time docket, time/date stamps on your e-filed pleadings, and electronic confirmation of your successful filing.

E-filing in Florida’s State courts is a work in progress.  In the coming months, the First, Third, Fourth and Fifth DCA will all have to make the transition to the Statewide Portal, as will the rest of Florida’s trial courts.   Hopefully, the Portal we have today is a work in progress, too.

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.

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