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.
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.
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.
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.
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.
Ok, so here’s the breakdown of the Supreme Court’s decision in Maryland v. King, No. 12-207. The Court was split 5-4. In the majority are Justices Kennedy, Roberts, Thomas, Breyer, and Alito. The dissenting opinion was authored by (who else?) Scalia. He was joined by Justices Ginsburg, Sotomayor, and Kagan. I don’t know about you, but that seems like a rather odd lineup.
Now for the substance of the opinion. After discussing the technical aspects of the Maryland DNA Collection Act, the evolution of DNA technology in the criminal justice system, and the Federal national DNA database known as CODIS, the Court noted that the cornerstone of Fourth Amendment analysis of governmental intrusions is reasonableness. See Maryland v. King, No. 12-207, slip op. pg. 8. After weighing privacy interests v. law enforcement interests, the Court, as you know by now, sided with law enforcement. Rather than go through the opinion in an objective manner, I’d like to point out some passages that I find rather unsettling.
First, in an effort to describe the critical role DNA plays in the identification of arrestees, the Court made the following observations: (1) arrestees often conceal their true identity; (2) people detained for minor offenses often turn out to be the most devious of and dangerous criminals; (3) only hours after the Oklahoma City bombing, Timothy McVeigh was stopped for driving without a license plate; (4) police stopped serial killer Joel Rifkin for the same reason; (5) one of the terrorists involved in the September 11 hijacking was stopped and ticketed for speeding two days before the hijacking. See King, slip op., pg. 13.
In another disturbing passage, the Court discussed how an arrestee’s past conduct is essential to an assessment of the danger he poses to the public, and that such information will be used by courts to determine whether to release arrestees on bail. See King, slip. op, pg. 15. Specifically, the Court notes that knowing that the defendant is wanted for a violent offense based on DNA identification is especially probative of the court’s consideration of the danger the defendant poses to the community. See King, slip op., pg. 15. Interestingly, the Court cited to the Federal Bail Reform Act, 18 U.S.C. 3142, as being similar to the Maryland Act. See id. If you’re a Florida criminal defense attorney who appears regularly in Federal court, then you already know that the Bail Reform Act is significantly different from bail in Florida’s state courts. (While criminal defendants charged in Florida state court enjoy a constitutional right to bail, there is no such right under the Federal Act.) The Court also noted that even if an arrestee is released on bail, development of the DNA identification which reveals a defendant’s unknown violent past can and should be used to revoke his conditional release. See id. at pg. 17.
I don’t know about you, but the above sections seem to reflect an intent to incarcerate someone out of fear of what may happen in the future, as opposed to the offense for which he or she has actually been convicted. However, this mentality runs contrary to the cornerstone of the United States criminal justice system: that every person is presumed innocent.
While you should take a few minutes to review the opinion for yourself, the best part of the opinion is no doubt the dissent authored by Justice Scalia. After reading Scalia’s persuasive commentary, it’s hard to imagine how 5 Justices of the United States Supreme Court were able to reach the decision they did.
The Florida Supreme Court issued a pretty interesting opinion right before the Memorial Day weekend–Public Defender, Eleventh Judicial Circuit of Florida v. State, No. SC09-1181. I remember reading news reports about this case back in 2008 or 2009, and it seemed like a pretty big deal that the Public Defender for Miami Dade County was actually so overloaded that the entire office was filing motions in numerous non-capital felony criminal cases seeking to decline future appointments, arguing that excessive caseloads prevented the office from providing effective representation. Well, although the opinion left the most interesting matter unresolved (i.e., the question of whether to grant or deny the PD’s motion), the Court did nevertheless hold that the Public Defender could file such aggregate motions where there is an office-wide problem as to effective representation, and that motions to withdraw could be granted pursuant to Florida section 27.5303 so long as the PD shows that there is a substantial risk that the representation of one or more clients will be materially limited by representation to another client. See Public Defender, slip op., pgs. 25-35. However, because the case had been pending in the Supreme Court so long, the Court remanded the matter back to the trial court for a determination of whether the conditions underlying the PD’s motions to decline future appointments still exist.
What is the impact of this case? Well, if the trial court determines that the conditions at the Miami Dade Public Defender’s office are unchanged, and that the Public Defender’s motions should be granted, then that means the cases will have to be handled by other court-appointed counsel. In other words, more work (and fees) for other court-appointed criminal defense attorneys! Now, if we could just get the Florida Legislature to repeal the fee caps imposed last year for criminal defense and criminal appeals lawyers . . .
I hope you had a great Memorial Day weekend!
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?
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.
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?