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

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The 4th DCA and the 4th of July

Between working to get ahead before traveling, and then working to catch up after traveling, there has not been much time for blogging.  But I wanted to take a minute to pass along a couple of opinions issued by the Fourth DCA around the 4th of July holiday.

(1) If you are a Florida criminal defense or criminal appeals attorney who handles mental health cases, take note.  In Julius Smith v. State, No. 4D12-3603, the Fourth reversed the order of a magistrate which adopted a mental health treatment plan because there was not competent substantial evidence showing that Smith’s multidisciplinary team had discussed and approved of the treatment plan, as required by Troutman v. State, 112 So. 3d 638 (Fla. 4th DCA 2013).

(2) In Jakaris Taylor v. State, No. 4D09-4703,  and 4D11-4559, the Court certified conflict with Thomas v. State, 78 So. 3d 644 (Fla. 1st DCA 2011), on an issue arising out of Graham v. Florida, 560 U.S. 48 (2010).  The question certified is whether Graham applies to lengthy term-of-years sentences that amount to life sentences.  In a second certified question, the Court also asked at what point does a term-of-years sentence become a de facto life sentence.  This will be an interesting issue to watch as it makes its way up to the Florida Supreme Court, and to see if the Court decides to exercise conflict jurisdiction.

(3) Finally, in Robert Howard Wright v. State, No. 4D11-2771, the Fourth reversed a conviction based on a determination of legally inconsistent verdicts.  This is a good opinion for criminal appeals and criminal defense lawyers.  If you ever get into a case involving inconsistent verdicts, you should take a minute to read the opinion.

Florida v. Harris, SC11-817: United States Supreme Court Reverses Florida Supreme Court in Case Involving Drug Detection Dog at Traffic Stop

For those Florida criminal defense attorneys who handle a lot of drug cases, here is an opinion worth reading.  In a relatively short (14 page) opinion, the United States Supreme Court unanimously reversed the Florida Supreme Court in Florida v. Harris, No. SC11-817.  Generally, the overall holding is favorable to the State because the Court held that the State is NOT required to “present an exhaustive set of records, including a log of the dog’s performance in the field, to establish the dog’s reliability,” Harris, slip op., pg. 1, as the Florida Supreme Court had required.   However, in so holding, the US Supreme Court really slapped down the Florida Supreme Court.  For some reason, I really love to see the Florida Supreme Court get reversed.

In its analysis, the Court reasoned that the hypertechnical requirements of the Florida Supreme Court opinion were completely contrary to the common-sense  approach to a determination of probable cause, which should be based on the totality of the circumstances.  Harris, slip op., pg. 4.  The Court stated,

. . . The Florida Supreme Court flouted this established approach to determining probable cause.  To assess the reliability of a drug-detection dog, the court created a strict evidentiary checklist, whose every item the State must tick off.  Most prominently, an alert cannot establish probable cause under the Florida court’s decision unless the State introduces comprehensive documentation of the dog’s prior “hits” and “misses” in the field. (One wonders how the court would apply its test to a rookie dog.)  No matter how much other proof the State offers of the dog’s reliability, the absent field performance records will preclude a finding of probable cause.  That is the antithesis of a totality-of-the-circumstances analysis.  It is, indeed, the very thing we criticized in [Illinois v.] Gates when we overhauled our method for assessing the trustworthiness of an informant’s tip.  A gap as to any one matter, we explained, should not sink the State’s case; rather, that“deficiency . . . may be compensated for, in determining the overall reliability of a tip, by a strong showing as to . . . other indicia of reliability.” Id., at 233.  So too here, a finding of a drug-detection dog’s reliability cannot depend on the State’s satisfaction of multiple, independent evidentiary requirements.  No more for dogs than for human informants is such an inflexible checklist the way to prove reliability, and thus establish probable cause.
Making matters worse, the decision below treats records of a dog’s field performance as the gold standard in evidence, when in most cases they have relatively limited import.  Errors may abound in such records.  If a dog on patrol fails to alert to a car containing drugs, the mistake usually will go undetected because the officer will not initiate a search.  Field data thus may not capture a dog’s false negatives.  Conversely (and more relevant here), if the dog alerts to a car in which the officer finds no narcotics, the dog may not have made a mistake at all.  The dog may have detected substances that were too well hidden or present in quantities too small for the officer to locate.  Or the dog may have smelled the residual odor of drugs previously in the vehicle or on the driver’s person.  Field data thus may markedly overstate a dog’s real false positives.  By contrast, those inaccuracies—in either direction—do not taint records of a dog’s performance in standard training and certification settings.  There, the designers of an assessment know where drugs are hidden and where they are not—and so where a dog should alert and where he should not.  The better measure of a dog’s reliability thus comes away from the field, in controlled testing environments.

Harris, slip op. pgs. 5-8.

Now, I admit that the above language is pretty helpful to the State.  However, the Court continued, provided some helpful ammunition to the criminal defense and criminal appeals lawyers out there, too.  The Court noted that a defendant should have the opportunity to “challenge such evidence of a dog’s reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses.”  Harris, slip op., pg. 8.  For example, a defendant “may contest the adequacy of a certification or training program, perhaps asserting that its standards are too lax or its methods faulty.”  Id.  In addition, a defendant may “examine how the dog (or handler) performed in the assessments made in those settings.”  Id.  After all, “evidence of the dog’s (or handler’s) history in the field, although susceptible to the kind of misinterpretation we have discussed, may sometimes be relevant.”  Id.  Finally, the Court noted that even if a dog is presumed generally reliable, “circumstances surrounding a particular alert may undermine the case for probable cause—if, say, the officer cued the dog (consciously or not), or if the team was working under unfamiliar conditions.”  Id. at pg. 9.

Unfortunately for Harris, his trial attorney failed to challenge any aspect of the drug dog’s training in the trial court.  See Id. at pg. 10.  As a result, the Court refused to consider his arguments raised in that regard for the first time on appeal.  See Id. 

Apart from the discussion of probable cause, this opinion also has good lesson for all the criminal defense attorneys out there: don’t forget to object and/or challenge the State’s evidence at every opportunity.  Even if you don’t know how useful or successful your challenges will be, once a case goes up on appeal, anything, and everything, may be fair game.  Failing to challenge evidence at the trial level (or failing to object) often precludes the right to appellate review, as noted by the Court in Harris.

Florida Criminal Defense Lawyers’ Challenges To S.B. 1960 Moving Ahead, and Brief Filed in Ulloa v. CMI, Inc., No. SC11-2291

South Florida’s criminal defense and criminal appeals lawyers who take court-appointed criminal cases and appeals may be interested to know that the case filed by Brent DelGaizo to challenge the constitutionality of S.B. 1960 is moving forward.  On August 7, 2012, Florida’s Fourth District Court of Appeal, located in West Palm Beach, issued an order directing the Chief Judge for the Seventeenth Judicial Circuit (Broward County) to respond to Del Gaizo’s arguments raised in his petition for writ of certiorari.  The response is due August 27, 2012.  To see the docket for DelGaizo v. Chief Judge, Seventeenth Judicial Circuit, case number 4D12-2548, click here.  If the link malfunctions, just go to the 4th DCA’s search page, and enter the case number, 4D12-2548.

The Miami Chapter of the Florida Association of Criminal Defense Lawyers (FACDL-Miami) has likewise filed a challenge to S.B. 1960 in Florida’s Third District Court of Appeal, located in Miami.  Amazingly, an organization of Florida prosecutors has even recently voted in favor of filing an amicus brief in support of FACDL-Miami’s petition to the Third DCA.  This is great news, and only serves to reinforce that the challenges to S.B. 1960 are about more than just money.

I’ll be sure to keep you posted.  To read my previous posts on S.B. 1960, click here, here and here.

Meanwhile, in Ulloa v. CMI, Inc., No. SC11-2291, Ulloa filed his jurisdictional brief today.  To read the brief, click here.  To read my previous post on this case, click here.  Since the case is relatively new, a decision should not be expected for some time.

Some Cases to Watch in the Florida Supreme Court

Well, the week has already flown by and I’ve not had a chance to post anything.  Nevertheless, I thought I’d take a moment to mention a few cases that are pending in the Florida Supreme Court that might be of interest to the criminal defense and  criminal appeals lawyers in the State of Florida.

(1) City of Orlando v. Udowychenko et al., No. SC12-1471:  Although this is a civil case, it is important for criminal defense lawyers, since this is a case that appears to address a municipality’s authority to enact red light ordinances.  The City of Orlando only filed its jurisdictional brief on July 31, 2012, so this case is just getting started.  We will have to wait to see if the Supreme Court accepts jurisdiction.  For a link to the docket, click here.  To see the City of Orlando’s jurisdictional brief, click here.

(2) State v. Catalano, No. Sc11-1166.  This is a case challenging the constitutionality of ordinances that restrict the volume of car stereos.  To see the docket, click here.  To see the initial brief, answer brief, reply brief, or amicus brief filed by the ACLU, click here.  Oral argument was held on February 9, 2012.

(3) Ulloa v. CMI, Inc., No. Sc11-2291.  Criminal defense lawyers will no doubt recognize the name of Respondent/Appellee CMI, as the manufacturer of breathalyzer equipment used in DUI cases in Florida.  The case concerns the issue of obtaining discovery from CMI, a corporation located in the State of Kentucky, but doing business in Florida.  To view some of the briefs in the case, click here.  To see the docket, click here.  This case has a long way to go before a decision is reached.  According to the docket, Ulloa’s Initial Brief on the Merits was due on July 26, 2012.

(4) In 11th Circuit Public Defender v. State of Florida, SC10-1349 and SC09-1181, the Court is considering the issue of the Public Defender’s office right to decline representation in felony cases because of budgetary issues.  For the briefs, click here and here.  For the dockets, click here and here.  Oral argument was held on June 7, 2012.

United States Supreme Court Issues Habeas Opinions in Maples v. Thomas, No. 10-63, and Gonzalez v. Thaler, No. 10-895

You may recall that in a previous post dated October 4, 2011, I listed a few federal criminal and habeas cases that I thought South Florida criminal defense and criminal appeals lawyers might want to monitor this Term.  Well, so far, the Court has issued opinions in two of the cases.  They are:

MAPLES V. THOMAS, No. 10-63, (slip opinion dated January 18, 2012):   A win for the habeas petitioner!  Maples had been sentenced to death in Alabama and filed postconviction motions alleging ineffective assistance of counsel.  While the postconviction motion was pending, the attorneys who had been handling Maples’ case left their firm (Sullivan & Cromwell of New York) for new employment, but never notified Maples of their departure, never moved to withdraw, and never moved to substitute counsel.  Maples lost his postconviction motion.  A copy of the court order was sent to Maples’ attorneys at their former firm, but the firm returned the mailings, unopened, to the Clerk of Court.  The Clerk attempted no further mailing, and Maples’ time for filing further appeals expired.  Maples’ subsequent federal habeas petition was denied by the United States District Court on procedural default grounds, and the Eleventh Circuit affirmed.  However, the United States Supreme Court reversed the judgment of the Eleventh Circuit, finding that Maples had shown the requisite “cause” to excuse the procedural default.  In the opinion, the Court described Maples being “blameless,” and, stated, to my amazement:

The sole question this Court has taken up for review is whether, on the extraordinary facts of Maples’ case,  there is “cause” to excuse the default.  Maples maintains that there is, for the lawyers he believed to be vigilantly representing him had abandoned the case without leave of court, without informing Maples they could no longer represent him, and without securing any recorded substitution of counsel.  We agree.  Abandoned by counsel, Maples was left unrepresented at a critical time for his state postconviction petition, and he lacked a clue of any need to protect himself pro se.  In these circumstances, no just system would lay the default at Maples’ death-cell door.  Satisfied that the requisite cause has been shown, we reverse the Eleventh Circuit’s judgment.

Why was I amazed at that language?  Well, if you’re a criminal defense or criminal appeals lawyer who is familiar with habeas jurisprudence, you know that many times, the individual petitioners are penalized for their counsel’s procedural errors, notwithstanding the fact that the individual petitioners have little to no control over the acts of their attorney.  However, here, the Court recognized the practical reality of Maples’ situation, and showed him some leniency by allowing him the chance to litigate another postconviction motion.

GONZALEZ V. THALER, No. 10-895 (slip opinion dated January 10, 2012):  This is a very technical, and somewhat dry, opinion.  Although the issues specifically framed by the Court were “(1) whether the Court of Appeals had jurisdiction to adjudicate Gonzalez’s appeal, notwithstanding the §2253(c)(3) defect; and, (2) whether Gonzalez’s habeas petition was time barred under §2244(d)(1) due to the date on which his judgment became final,” the Court addressed several sub-issues, including (a) the effect of defects in certificates of appealability on the jurisdiction of the Circuit Court; (b) the meaning of the term “jurisdictional;” (c)  when a State court conviction becomes final for purposes of habeas review; and, (d) timeliness of habeas petitions.  The most lively portion of the opinion, as you could have guessed, is Justice Scalia’s dissent.  I may not agree with a lot of what Scalia writes, but I have to admit that it takes some truly special talent to make dry jurisdictional arguments worth reading!

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