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: postconviction

Florida’s Fourth DCA Reverses Dismissal of Charges Against Public Official, And The Court Still Struggles With Retroactivity of Padilla in Postconviction Cases

In an opinion released this week, the Fourth District Court of Appeal in West Palm Beach held that the trial court erred by dismissing corruption charges against a public official.   Although the opinion is not final until any motion for rehearing is disposed of, the opinion essentially allows the State to resume prosecution of the official.  Since it’s pretty uncommon to see public corruption charges in State court (most public corruption cases arise in federal court), this would be a good opinion to read.  Not only will it be helpful to criminal defense attorneys who defend public corruption cases, but the opinion also contains a good discussion of motions to dismiss and traverses under Fla. R. Crim. P. 3.190(c)(4).

Criminal appeals attorneys should take a few minutes to read another opinion released by the Fourth DCA, Perez v. State, 4D10-3180, because it shows that the Court is still struggling with the issue of whether Padilla v. Kentucky, 550 U.S. 356 (2010), applies retroactively in postconviction cases.  In support of its holding that Padilla would not apply retroactively, the Court reasoned that Perez’s conviction became final before the Padilla opinion issued, and Perez did not file his motion for postconviction relief until after Padilla.  The majority opinion, authored by newly-appointed Judge Forst, contains a good discussion of Padilla, Hernandez v. State, 37 Fla. L. Weekly S730, S731-32 (Fla. Nov. 21, 2012), in which the Florida Supreme Court held that Padilla does not apply retroactively, and Chaidez v. United States, 133 S.Ct. 1103, 1113 (2013), where the United States Supreme Court held that a defendant may not obtain federal relief based on Padilla where his or her conviction became final on direct review before Padilla was decided.  Judge Stevenson authored a well-reasoned dissent wherein he stated that he would apply Padilla retroactively because Perez’s postconviction motion was already in the pipeline when Padilla was decided.

United States Supreme Court Addresses Claims of Ineffective Assistance of Counsel for Failure to Communicate Plea Offers: Missouri v. Frye, No. 10-444

Any experienced criminal defense lawyer should know that he or she has a duty to communicate plea offers to their client.  But did you know that failing to communicate a plea offer might subject you to a claim of ineffective assistance of counsel?  The United States Supreme Court recently addressed this issue in Missouri v. Frye, No. 10-444.  In Frye, the defendant entered a plea of guilty to the charge of driving with a revoked license.  After being sentenced, he filed a motion for postconviction relief based on his attorney’s failure to communicate a plea offer which had lapsed prior to his entering the plea.  Predictably, Frye testified at an evidentiary hearing that he would have entered a guilty plea to the misdemeanor had he known about the offer.  In its Opinion, the Court focused on the factual “context of claimed ineffective assistance that led to the lapse of a prosecution offer of a plea bargain, a proposal that offered terms more lenient than the terms of the guilty plea entered later.”  Slip Op. at pg. 1.  The Court therefore framed the issue as “whether the constitutional right to counsel extends to the negotiation and consideration of plea offers that lapse or are rejected.”  Slip Op. at pg. 1.

In holding that the right to counsel extends to such plea offers, the Court reasoned that today’s criminal justice system has become dominated by the plea-bargaining process.  As noted by the Court, because today’s system is based on pleas, as opposed to trials, “the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant” for purposes of the Sixth Amendment’s right to effective assistance of counsel.  Slip op. at pg. 8.  Next, the Court held that “defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.”  Slip op. at pg. 9.  Because counsel failed to communicate the formal offer to Frye, the Court held that counsel had performed deficiently under Strickland v. Washington, 466 U. S. 668, 686 (1984).

Turning to the prejudice prong of Strickland, the Court then stated that defendants must show (1) a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel; and, (2) a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law.   The Court further noted that to establish prejudice, a defendant would have to show 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.  Slip op., pg. 12.

As I was reading the rather dry majority opinion, something was not sitting right with me.  I wondered: how can the Court reconcile its decision (that counsel can be deemed ineffective for failing to communicate a plea offer) with the fact that a defendant has no right to be offered a plea in the first place, or a federal right to have the trial court accept a plea?  After all, the majority opinion acknowledged such fact at pages 5 and 12 of the slip opinion (citing Weatherford v. Bursey, 429 U. S. 545, 561 (1977); and Santobello v. New York, 404 U. S. 257, 262 (1971)).

Then, reading the opening paragraph of Justice Scalia’s dissent, I had one of those “aha!” moments.  Scalia wrote,  “Counsel’s mistake did not deprive Frye of any substantive or procedural right; only of the opportunity to accept a plea bargain to which he had no entitlement in the first place.”  Scalia Dissent, Slip. Op. at pgs. 1-2.  Scalia further noted that the majority acknowledged that the plea that Frye ultimately accepted was not tainted by any attorney error.  Scalia Dissent, Slip Op. at pg. 2.

Against those two points, Scalia presents a logical argument: that the majority opinion certainly seems to be out of sync with previous jurisprudence in this area.  The remainder of Justice Scalia’s dissent contains a good discussion of the difficulties that the Court’s majority opinion has left the lower courts, and criminal defense lawyers, to deal with.  I highly suggest that anyone who practices in this area to take a few moments to read the opinion.

In my next post, I’ll discuss Lafler v. Cooper, No. 10-209, another opinion released on the same day as Frye, which addresses other questions relating to ineffective assistance with respect to plea offers, including remedies.

A Kinder, Gentler Court for Federal Habeas Petitioners? Holland v. Florida, 130 S.Ct. 2549 (2010)

Since my previous post on the United States Supreme Court case of Maples v. Thomas, No. 10-63, I’ve been wondering if we are seeing a kinder, gentler Court, at least in the area of federal petitions for writ of habeas corpus.  I think the answer is yes.

If you took a few moments to read Maples, you’re familiar with the Court’s exercise of leniency toward Maples, which is somewhat rare in habeas cases.  (As I mentioned in my previous post, habeas petitioners are often penalized for mistakes made by their postconviction attorney).  You’d also recall that in Maples, the Court relied heavily on Holland v. Florida, 130 S.Ct. 2549 (2010).

Holland is another case where the Supreme Court also showed leniency toward a federal habeas petitioner.  In Holland, the Court held, for the first time, that (1) the one year statute of limitations contained in section 2244(d) (governing the filing of section 2254 federal habeas petitions challenging state court convictions) can be tolled for equitable reasons; and, (2) an attorney’s professional misconduct may, at times, constitute “extraordinary circumstances” to warrant equitable tolling.  See Maples, No. 10-63, slip op. at *13 (recalling holding of Holland).  Significantly, in Holland, the Court explicitly stated that the analysis employed by the Eleventh Circuit to determine whether an attorney’s misconduct might warrant equitable tolling was “too rigid.”  See Holland, 130 S.Ct. at 2549.  While the Court didn’t reach the conclusion that the professional misconduct of Holland’s attorney rose to the level of “extraordinary circumstances” sufficient to warrant equitable tolling, the Court did remand the case back to the Eleventh Circuit for such a determination.  See Holland, 130 S.Ct. at 2565.  The Eleventh Circuit, in turn, remanded the matter back to the District Court for a possible evidentiary hearing on the issue.  See Holland v. Florida, 613 F.3d 1053 (11th Cir. 2010).  As of the date of this post, the status and disposition of Holland’s case in the District Court is unclear.  Westlaw does not show any further published opinions subsequent to the Eleventh Circuit remand at 613 F.3d 1053.  However, I suppose if you have time to kill, you could always check PACER for the status of Holland’s case.  His case originated locally, in the United States District Court for the Southern District of Florida, and appears to be assigned case number No. 06-20182-CV-PAS (Judge Seitz).

While I have not yet had the time to review the 2,358 opinions which cite to Holland, I think it’s fair to say that Holland may have begun a new era in postconviction litigation.  While it’s true that habeas petitioners have long argued that they should not be held accountable for the mistakes of their lawyers, habeas petitioners now have a strong case to point to in support of such argument.

Florida Supreme Court Opinions Released October 27, 2011:Jury Instruction Errors, An Evidentiary Hearing on Possible Brady and Giglio Violations, and No More Filings Allowed for a Frequent Filer

This week has just flown by.  Since I am a bit pressed for time, I decided to make a quick report of a few of the opinions released by the Florida Supreme Court on October 27, 2011.

1.)  The Court reversed six cases based on jury instruction issues.  In each of the cases, the Court remanded the cases back to the District Courts of Appeal for consideration and application of the recent opinion of State v. Montgomery, 39 So. 3d 252 (Fla. 2010) (holding that because Montgomery, who had been convicted of second-degree murder, was entitled to an accurate jury instruction on the necessarily lesser included offense of manslaughter by act, the use of the then-standard jury instruction on manslaughter by act constituted fundamental reversible error because it erroneously required the jury to find that Montgomery intentionally caused the death of the victim).  The cases reversed include Zeigler v. State, No. SC09-2082, Valdes-Pino v. State, No. SC10-63, Burgos v. State, No. SC10-78, Bonilla v. State, No. SC10-141, Solano v. State, No. SC10-1350, and Francis v. State, No. SC10-1881.

2.) In Mungin v. State, No. SC09-2018, a death penalty case, the Court reversed a trial court’s order which had summarily denied a successive motion for postconviction relief.  In a 22 page opinion, the Court remanded Mungin’s Giglio and Brady claims back to the postconviction court for an evidentiary hearing.  Although the opinion is fact driven, it is still worth reading for the Court’s discussion and application of Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972).

3.) Finally, in James v. Tucker, No. SC11-745, the Court banned Mr. James from filing any more pleadings attacking his conviction unless they are signed by a member in good standing of the Florida Bar.  Apparently, Mr. James has become what some criminal defense attorneys refer to as a “frequent filer,” and the Court said “enough is enough.”

Timeliness of Petitions for Writ of Habeas Corpus

Pursuant to 28 U.S.C. sec. 2244(d), petitioners applying for a writ generally have 1 year in which to file their petition.  This 1 year statute of limitations runs from the latest of (a) the date that the judgment became final by direct review or the expiration of the time for seeking direct review; (b) the date on which an impediment to filing an application created by State action is removed, if the applicant was prevented from filing by such State action; (c) the date on which the constitutional right being asserted was initially recognized by the Supreme Court, if the right is newly recognized and has been made retroactively applicable to cases on collateral review; or, (d) the date on which the facts supporting the claim presented could have been discovered through due diligence.  See 28 U.S.C. sec. 2244(d)(1)(A)-(D).  However, the time during which properly filed motions for State postconviction relief or other collateral review with regard to the judgment is excluded from the calculation of the 1 year statute of limitations.  See 28 U.S.C. sec. 2244(d)(2).

Time calculations can be straightforward or complex, depending on such factors as whether the petitioner has directly appealed the judgment, whether the petitioner has filed motions for postconviction relief or other collateral review, whether the petitioner has “properly filed” motions for postconviction relief, whether newly recognized rights have been made retroactively applicable to cases on collateral review, and the “mailbox rule.”  For a brief discussion of timeliness of a petition and tolling, counsel may wish to review the recently published order in Williams v. Secretary, Dept. of Corr., No. 6:09-cv-1809-Orl-31KRS, 2011 WL 2173858 (M.D. Fla. June 2, 2011).  For a brief discussion of the “mailbox rule,” counsel may review the Eleventh Circuit opinion in Powles v. Thompson, 282 Fed. App’x 804 (11th Cir. 2008).  Finally, when calculating the number of tolled or untolled days between filings, counsel may also wish to consult www.timeanddate.com.

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