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
Here’s an opinion which might interest South Florida’s criminal defense bar. Today, May 30, 2013, the Florida Supreme Court has disbarred a former Fort Lauderdale Police Officer named Daniel Mark Zavadil. In Florida Board of Bar Examiners re: Daniel Mark Zavidil, No. SC11-1694, Zavadil applied to the Bar in 2007. Zavadil, slip op. pg. 1. Although he passed the bar exam, the background investigation revealed information from his days as a police officer which required further inquiry. He attended an investigative hearing in 2009, submitted a 21 page brief on legal ethics, and was admitted in 2010. However, the investigation continued, and the Bar held another formal hearing in 2011. Zavadil, slip op., pg. 2. Based on the testimony and argument presented at the formal hearing, the Board of Bar Examiners recommended disbarment of Zavadil. Id. at pg. 8. The Court adopted the recommendation and has disbarred him for 18 months. Id. at pgs. 14-15.
What did Zavadil do that merited disbarment? In short, he failed to disclose in his bar application several events which occurred while he was a Fort Lauderdale PD officer which reflected on his truthfulness and candor, and failed to testify truthfully and candidly in his defense. See id at pgs. 13-14. According to the opinion, Zavadil failed to disclose: (1) the fact that his supervisor filed a complaint against him for “discrepancies, omissions, and misinformation in Zavadil’s reports, as well as a pattern of ‘misrepresenting the facts in order to shift responsibility for [his] identified deficiencies;’” (2) that on November 18, 2008, he received a letter from the Chief of Police, notifying him that he would be suspended for three days, effective in January 2009; (3) that the suspension was rescinded by the City of Fort Lauderdale after Zavadil filed a complaint for injunctive relief in the circuit court; and, (4) the fact that in 2009, Zavadil was relieved from patrol duty, with pay, effective immediately. Slip op., pgs. 3-6. The Board of Bar Examiners also found Zavadil’s testimony was “lacking in candor, misleading, and evasive.” See id at pg. 8.
Zavadil’s Florida Bar profile already reflects his disbarment.
The stars must be aligned just right, because for the first time in a long time, the US Supreme Court, Eleventh Circuit, and Florida Supreme Court all recently issued opinions favorable to criminal defendants. It’s like a hat trick for criminal defense and criminal appeals lawyers!
In Millbroook v. United States, 11-10362, Millbrook, a federal prisoner in the custody of the Bureau of Prisons, filed an action against the United States after he was sexually assaulted and verbally threatened while in custody. Although the District Court granted summary judgment in favor of the United States, and the Third Circuit affirmed, the United States Supreme Court reversed, and held that Millbrook’s lawsuit was not barred by the “law enforcement proviso” of the Federal Tort Claims Act (FTCA). In so holding, the Court relied on the plain text of the section and determined that Congress intended immunity determinations to be based on a federal officer’s legal authority, not on a particular exercise of that authority. SeeMillbrook, 11-20362, slip op., pg. 6.Based on the plain text of the statute, the Court rejected the Government’s argument that an officer’s intentional tort must occur in the course of executing a search seizing evidence, or making an arrest in order to expose the Government to liability. See id.
In United States v. Hinds, No. 11-16048, Hinds was convicted of conspiring to possess with intent to distribute 50 grams or more of cocaine base (crack cocaine). On direct appeal, the Eleventh Circuit agreed with Hinds that his sentence should be vacated because the amount attributed to him was too speculative. On remand, the District Court failed to give Hinds the benefit of the Fair Sentencing Act (FSA), so Hinds appealed, and won again. In holding that Hinds should have been given the benefit of the FSA, the Court noted, in footnote 2, that the Government conceded that Hinds should have been given the benefit of the FSA when he appeared on remand. Too bad Hinds had to appeal twice to get the benefit of the FSA.
Finally, in State v. Larry Phillips, No SC11-411, the Florida Supreme Court found that Phillips, who had been committed under the Jimmy Ryce Act, was eligible for immediate release because the State waited to file its commitment petition after Phillips’ criminal sentence had expired.
This has been a busy week for the Florida Supreme Court. The day before the election, on November 5, 2012, a Petition for Quo Warranto was filed seeking to have Justices Quince, Lewis, and Pariente disqualified from the ballot. To read the petition in Jones v. Dentzner, No. SC12-2297, click here. On November 8, 2012, the Supreme Court transferred the matter to the Circuit Court of the Second Judicial Circuit (Leon County). For the docket, click here.
On November 6, 2012, the Supreme Court accepted jurisdiction in two cases challenging the constitutionality of red light cameras. See Masone v. City of Aventura, No. SC12-644 and City of Orlando v. Udowychenko, No. SC12-1471. This case may have implications for criminal defense attorneys who handle DUI cases, and for criminal appeals attorneys as well.
Finally, Palm Beach County criminal defense attorneys and prosecutors alike may be interested to know that the JQC has filed formal charges against County Court Judge Barry M. Cohen. To read the petition, click here.
I haven’t had time to read the opinion, as it was just released yesterday, July 12, 2012. The only thing I can say right now is I’m disappointed, but not at all surprised. Check out the opinion at the Florida Supreme Court website, http://www.floridasupremecourt.org, or by clicking here.
For those of you who are waiting on the Florida Supreme Court to issue an opinion in the case involving the constitutionality of Florida section 893.13 (the drug possession statute), I just wanted to let you know that the Court has yet to issue an opinion. Oral argument was held in December, and still no word. The docket for State v. Adkins, No. SC11- 1878 can be viewed here.
Florida’s criminal defense lawyers may wish to take a moment to review the latest round of Standard Jury Instruction amendments issued by the Florida Supreme Court for criminal cases. Dated February 9, 2012, the amended instructions address questions by the jury (number 2.13); Williams rule evidence (number 3.8(a)); the rules for deliberation (number 3.10); trespass (numbers 13.3, 13.4); organized fraud (number 14.8); contributing to the dependency of a child-impregnating a person under age 16 by a person 21 or older (number 16.4(a)); and, promoting or performing obscene acts (number 24.6).
The criminal defense attorneys of South Florida may wish to take particular note of the changes to the boating under the influence instructions. Instructions numbered 28.14, 28.15, 28.16, and 28.17, which address general boating under the influence, boating under the influence causing property damage or injury, felony boating under the influence, and boating under the influence causing serious bodily injury, have all been amended.
I suppose the criminal defense attorneys in the Florida panhandle may want to take a look at the amended instruction on taking wild deer or turkey with a gun and light (number 29.14). I can’t say I’ve ever even heard of that one!
In December of 2010, the Florida Supreme Court held that when a Defendant files a motion to dismiss claiming immunity from prosecution under Florida statute section 776.032, otherwise known as Florida’s”Stand Your Ground” statute, the trial court is required to hold a pre-trial evidentiary hearing to “decide the factual question of the applicability of the statutory immunity.” See Dennis v. State, 51 So. 3d 456, 457 (Fla. 2010). According to the Court, while a motion to dismiss based on section 776.032 should properly be filed pursuant to Fla. R. Crim. P. 3.190(b), the trial court is still required to hold an evidentiary hearing even if the motion to dismiss is mistakenly filed pursuant to Fla. R. Crim. P. 3.190(c)(4). Finally, the Court noted that any motions to dismiss mistakenly filed under Rule 3.190(c)(4) should be treated as having been properly filed under Rule 3.190(b). Where the trial court fails to hold a pre-trial evidentiary hearing, any appeal of the failure to hold the hearing should be analyzed under the “harmless error test” of State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). See Dennis, 51 So. 3d 464 (noting that an error is harmless if “the error complained of did not contribute to the verdict or, alternatively stated, . . . that there is no reasonable possibility that the error contributed to the conviction.”)
This issue continues to be a hot topic. On August 31, 2011, Florida’s Fourth District Court of Appeal was the latest court to issue an opinion on the issue. See Govoni v. State, No. 4D09-2371 (remanding case for trial court to conduct evidentiary hearing pursuant to Dennis) (slip opinion).
In an opinion issued on August 16, 2011, the Florida Supreme Court ruled that Florida Governor Rick Scott exceeded the scope of his executive powers when he issued Executive Orders numbered 11-01 and 11-72. In the Executive Orders, the Governor (1) suspended the rulemaking authority of various Florida governmental agencies; (2) decreed that none of the agencies would be permitted to exercise their rulemaking authority except at the direction of one of his newly created offices, the Office of Fiscal Accountability and Regulatory Reform (OFARR); and, (3) decreed that all of the agencies had to submit proposals of any new rules to OFARR.
I should warn you that the opinion, which has the effect of granting a petition for writ of quo warranto, is a rather dry discussion of the doctrine of separation of powers and legislative rulemaking authority. Nevertheless, the Court’s criticism of the dissenting opinions makes the read a bit more entertaining. I suggest you turn to page 22 of the opinion, where the Court attacked the reasoning of the dissenters and, at the same time, insulted the Governor by referring to him as “the Governor all-powerful . . .” Ouch!
Some people who have been reading this blog know that I have been waiting for the decision in Evans v. McNeil, 08-14402-CIV-JEM, to make its way to the Eleventh Circuit. (For a quick reminder, see some of my other posts on the case here). Why do I care so much? A recent article in the Florida Bar News highlights the importance of the Evans case nicely.
First, as I mentioned in my July 6 post, Evans is the first time that a court has ever declared Florida’s death penalty scheme unconstitutional. It’s not like the Florida courts have not had the opportunity to declare it unconstitutional before. As noted in the article published in the Florida Bar News, Justices on the Florida Supreme Court have been openly expressing their dissatisfaction with the death penalty scheme, and calling it into question in light of Ring v. Arizona, for years. Just read of some of the concurring and dissenting opinions authored by Justices Pariente or Wells in any one of the many death penalty cases decided since Ring. But for some unknown reason, the Florida Supreme Court has failed to actually take the step of declaring the death penalty scheme unconstitutional.
And, making matters worse, is the Florida Legislature, refusing to act despite being given numerous chances to do so. Why not just amend the death penalty statute to ensure compliance with Ring, especially after repeated requests by Justices on the Florida Supreme Court? Why ignore the Justices’ recommendations for further study of death penalty issues? Instead of keeping and using the only fact finding body it had in existence on the issue, the Commission on Capital Cases, the Florida Legislature recently opted to cease funding the Commission in budget negotiations. Ironically, the first death warrant signed by Governor Rick Scott was signed on the last day of the Commission’s existence.
At present, we have three branches of government that are working in an entirely circuitous fashion, getting nowhere fast. The Governor continues to sign death warrants, stating that Judge Martinez’s decision in Evans is not binding. The Justices call on the Legislature to amend the death penalty statute, but refuse to declare it unconstitutional. And then we have the Legislature, a group of people who refuse to do anything except keep their heads buried in the sand. The article in the Florida Bar News states that Florida is an outlier state because it is now the only state that allows the death penalty to be imposed even though during the penalty phase, the jury may decide to impose the death penalty based on a mere majority (but not unanimous) vote.
I don’t know about you, but I don’t really think that being an outlier state on this issue is a good thing. Since nobody in the State can seem to fix the problems with the death penalty, it’s about time that someone from outside the State stepped in to do it for us.
A United States District Court Judge for the Southern District of Florida, Judge Jose Martinez, recently granted a 2254 petition for writ of habeas corpus in Evans v. McNeil, 08-14402-CIV-JEM, concluding that Florida’s death penalty procedure violates the United States Supreme Court case of Ring v. Arizona. In Ring, the Court struck down Arizona’s death penalty scheme because jurors were not required to agree on aggravating factors, which violated the Sixth Amendment. In Florida, the death penalty is handed down in a 2 step process. First, the jury may recommend the death penalty if 6 of the 12 jurors agree. (I am not the only attorney to recognize how ironic it is that to be convicted of even a misdemeanor crime, the jury verdict must be unanimous, but to be sentenced to death, only 6 of the 12 must agree). In the second step, after the jury makes its recommendation, the Judge conducts a sentencing hearing where he or she uses the jury recommendation in reaching the actual sentencing decision. According to Judge Martinez’s opinion, the Florida scheme violates Ring because (1) the jury is not required to unanimously agree on the factors in support of the death penalty; (2) the jury never makes any specific findings of fact in support of their recommendation; and, (3) in the sentencing phase, the Judge takes evidence alone, without a jury, and neither the defendant, nor any reviewing court, has any way of knowing whether the Judge imposed the death penalty based on the same, or different factors, than were relied on by the jury. According to Judge Martinez, such a process cannot be reconciled with Ring.
No doubt, Judge Martinez’s Order will be appealed, and criminal lawyers across the State will be watching. A flurry of appeals will likely be filed by death row inmates themselves. Perhaps the Florida Legislature could just save everyone some time and effort, and create a new scheme to cure the constitutional deficiencies. Somehow, I suspect that won’t happen. The Florida Supreme Court already asked the Legislature to fix the sentencing scheme, and the Legislature failed to act. Even if the Legislature did act, I doubt they could pass anything. If Florida’s legislators cannot even agree on simple legislation, how could anyone expect them to agree on something as important as the death penalty?