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: Preservation

2nd DCA Examines Defense of Necessity in DUI Cases, And Florida Supreme Court Reevaluates Cause Challenges

Well, voluntary bar commitments are heating up, which leaves less time for blogging, but I wanted to take a moment to pass along 2 cases worth noting for Florida’s criminal defense and criminal appeals attorneys.

First, DUI practitioners should read Brooks v. State, 2D11-2586, because the Court discusses the defense of necessity in DUI cases.  According to the opinion, Brooks asked the trial court to instruct the jury on the defense because the evidence at trial showed that Brooks was compelled to drive (after some party time with his friends, of course) to save his friend’s ailing cat.   Unfortunately for Mr. Brooks, the Court disagreed.  Since the defense is so unusual, the Court relied on opinions from other jurisdictions.   Brooks, slip op., pgs. 5-6.  Ultimately, the Court stated that the defense of necessity is not available as a defense to DUI in Florida where the asserted emergency involves the threat of harm to an animal instead of a person.

Next is Matarranz v. State, SC11-1617.  You know it’s going to be a long opinion when it opens with a quote from To Kill A Mockingbird, and ends with a quote from Thomas Jefferson.  The short version: the Florida Supreme Court reversed the decision of the Third District, and remanded for a new trial because the trial court erred in denying cause challenges.  In so doing, the Court clarified the law surrounding peremptory challenges and the removal of jurors for cause.  With regard to the State’s preservation argument, the Court found that the issue had been sufficiently preserved because (1) defense counsel moved to strike the juror based on a thorough conversation regarding her ability to be fair and impartial; (2) after the trial court denied the challenge for cause, counsel had to use a peremptory challenge to strike the juror; (3) counsel exhausted all his peremptory challenges; and, (4) counsel thereafter identified and listed additional jurors he would have excused if provided with an additional challenge.  See Matarranz, slip op., pgs. 13-17.

The Court next determined that the trial court reversibly erred by denying counsel’s challenge for cause.  In so doing, the Court specifically observed that it’s OK for counsel to engage potential jurors in conversations regarding their partialities, biases, prejudices, and misconceptions when they result from a lack of familiarity with the judicial system, rather than from immutable opinions and attitudes that arise from personal experiences and firmly held beliefs.  See slip op., pg. 22.  In other words, where counsel has a concern about a potential juror’s misinformation and confusion regarding the law or process, counsel may engage the potential juror in an effort to rehabilitate the potential juror.

Finally, much of the Matarranz opinion consists of the majority opinion’s criticism of Judge LaBarga’s dissent, and the dissent’s criticism of the majority.  If you happen to like to reading such verbal sparring, you’ll certainly enjoy this opinion.  See pgs. 27-33 for the majority’s criticism of Judge Canady’s dissent, and pages 36-40 for the dissent.

Dinkines v. State, No. 4D12-1845: Good Example of Preserving Objections For Appeal

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.

Abdel Odeh v. State, 4D09-994: First Degree Murder Conviction Affirmed-Preservation, Invited and Fundamental Error, and Claims of Ineffectiveness on Appeal

On July 13, 2011, the Fourth DCA issued an opinion in Abdel Odeh v. State, 4D09-994, affirming Odeh’s conviction and sentence for first degree murder.  In the opinion, the Court addressed several concepts which are important to criminal appeals: preservation, invited error, fundamental error, and attempts to raise ineffective assistance of counsel for the first time on appeal.

With regard to invited error and fundamental error, at trial, jury was allowed to hear a comment made by a Detective, during the interrogation of Odeh, that Odeh could not legally claim the defense of justifiable use of deadly force.  Although the Court agreed that it was error to have allowed the jury to hear the comment, the Court found that the error was invited because he responded to a question on cross examination.  Moreover, the Court rejected Odeh’s claim that the error was fundamental because the opinion testimony did not permeate the entire trial.  The Court also found that the trial court erred in its jury instructions on the justifiable use of deadly force.  However, Court determined that the error, which had not been preserved by a contemporaneous objection, was not fundamental because the State made no use of the trial court’s erroneous instruction.  The Court also noted that Odeh’s counsel agreed to the erroneous instructions.

Finally, the Court addressed Odeh’s claim of ineffective assistance of counsel.  In so doing, the Court observed the longstanding rule that such claims cannot properly be raised for the first time on appeal unless they are apparent on the face of the record.  Because Odeh’s claims were not apparent on the face of the record, the Court declined to reverse Odeh’s conviction on such basis.

For previous posts on preservation and fundamental error, click here. For a discussion on filing motions for postconviction relief in state court as a prerequisite to federal habeas review, click here and here.

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