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: defense

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’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.

Eleventh Circuit Circuit Reverses After Appellate Counsel Initially Files Anders Brief

Since the Eleventh Circuit has a new Chief Judge now (Judge Dubina passed the gavel to Judge Carnes as of August 1), I thought I’d take a few minutes to mention two interesting opinions issued by the Eleventh.

(1) United States v. Fries, No. 11-15724.  If you handle federal or state criminal appeals, you’re probably familiar with filing Anders briefs (Anders v. California, 386 U.S. 738 (1967)) when you’ve searched the record, but are unable to discover any appealable issues.  Often, the courts accept Anders briefs without question.  However, in Fries, the Eleventh Circuit declined to accept appellate counsel’s Anders brief, and instead directed counsel to brief two specific issues:

(1) whether the district court effectively removed the burden of proof regarding an element of the 18 U.S.C. § 922(a)(5) offense by instructing the jury that the sale of a firearm to a licensed dealer was an exception to the prohibition on sales to non residents that did not apply in the case; and

(2) whether the evidence was insufficient to convict when no evidence was presented as to whether the buyer of the firearm was a licensed dealer.
In a revised brief, appellate counsel argued that Fries’ conviction for transferring a firearm to an out-of-state resident should be reversed for insufficient evidence because (1) the evidence at trial failed to show that he sold a firearm to a person who was not a licensed firearms dealer; and, (2) in the alternative, he should be granted a new trial because the court’s jury instructions shifted the burden of proof.
The Eleventh Circuit agreed, and reversed for a simple reason:  at trial, the prosecutor failed to establish an essential element required by section 922(a)(5)–that the individual to whom Fries sold the firearm lacked a federal firearms license (“FFL”).  After a bit of help from the Court by declining to accept the Anders brief, this is a good win for the defense.  It’s not very often that the Government commits such an error.  As noted by Judge Carnes in his concurrence, all the prosecutor had to do during the Government’s case in chief was ask a simple question as to whether the ATF agent who purchased the gun from Fries at the Tallahassee Gun and Knife Show had a federal firearms license.
(2) In United States v. Curbelo, No. 10-14665, the Court affirmed Curbelo’s conviction for a count of conspiracy to manufacture and possess marijuana with intent to distribute, and a second count of manufacturing and possessing marijuana with intent to distribute.  According to the opinion, it seems that Mr. Curbelo was employed as a carpenter for a Mr. Diaz, and that when the carpentry work was no longer lucrative enough, Mr. Curbelo decided to join in Mr.  Diaz’s grow-house operations.  Although the case is a fairly routine opinion affirming a conviction, it’s worth a read, if you have time.  Although I won’t discuss each of the five points analyze by the Court, I will note four of them for you here.
  • First, the case illustrates a rule often invoked in criminal (and civil, for that matter) appeals: if you don’t object or make a specific argument below, you’re generally going to be precluded from raising that argument on appeal.  In his brief, Curbelo argued that the DEA obtained GPS tracking data from vehicles driven by Mr. Diaz and another individual named Herman Torres in violation of the Fourth Amendment, as held in United States v. Jones, 132 S.Ct. 945, 948 (2013).  However, the Court refused to entertain such argument because defense counsel never moved to suppress the DEA’s GPS tracking evidence.
  • Second, the Court addressed another topic that often arises in criminal appeals: ineffective assistance of counsel.  Although Curbelo argued that his attorney was ineffective for failing to move to suppress the DEA GPS tracking evidence, the Court refused to consider the claim on the merits because the record was not sufficiently developed.
  • Third, the Court addressed Curbelo’s argument that the evidence was insufficient to support the sentencing enhancement for a conspiracy involving more than 1,000 marijuana plants.  The Court quickly disagreed.  In so doing, the Court noted that because the number of plants was determined by a jury, Alleyne v. United States,133 S.Ct. 2151 (2013), which was decided after the case was briefed and oral argument was held, required affirmance of the sentencing enhancement.
  • Finally, the Court rejected Curbelo’s Confrontation clause argument as to the Government’s use of English-translation transcripts of recorded conversations at trial.  In it’s analysis, the Court focused on Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011) and Crawford v. Washington, 541 U.S. 36 (2004).

Florida Supreme Court Holds that Public Defender May Decline Future Appointments Based On Office Wide Problems Which Impact Effective Representation

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!

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

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?

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