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: prosecutor

Florida Supreme Court Affirms Conviction Despite Improper Comments from Prosecutor, and Fourth DCA Reverses One of its Own on Issue of Pre-Trial DNA Testing Procedures

The Florida Supreme Court and Fourth DCA have both issued interesting opinions in the last week, so I though I’d pass them along.

First, in Gary Fontaine Bell v. State, SC10-916, the Court examined a series of statements made by the prosecutor.  Although the analysis of each statement is a bit tedious, the case is good to read because it illustrates an important lesson for criminal defense and criminal appeals attorneys alike: to preserve an issue for appeal, you have to object, and renew your objections at the appropriate time.  In Bell, athough the court found that several statements were improper, the Supreme Court nevertheless affirmed Bell’s conviction for lewd and lascivious molestation on a victim under 12 by a person 18 or older because Bell failed to preserve the issues for appeal, and because the comments did not constitute fundamental error.  See Bell, SC10-916, slip op., pgs. 16-18.  The statements examined by the Court include:

(1) During closing argument, with regard to the age of the victim, the prosecutor stated, “so without any evidence contradicting [the State’s evidence,] the State has proven to you beyond a reasonable doubt the first element of the charge.”  The Court found this statement did not constitute an improper comment on Bell’s right to remain silent because the statement concerned an issue that witnesses other than Bell could have refuted.  Also, the Court found no improper burden shifting.  See Bell, SC10-916, slip op., pgs. 2, 11-12.

(2) During voir dire, the prosecutor asked questions including “[n]ow, would anyone just right off the bat tell me that if all I have is a [sic] word of a child to evaluate as the evidence, that that’s not enough; I would need more?”; “[w]ithout hearing any other thing about the case, could you tell me right now that the testimony of a child alone would be insufficient for you?”; and, “if you heard the testimony of a child telling what happened and there were no other eyewitnesses, would that not be enough for you under any circumstances?”  After determining that Bell failed to preserve the issues for appellate review because he failed to renew his objection prior to the jury being sworn, the Court also found that the statements did not comment on Bell’s right to remain silent.  See Bell, SC10-916, slip op., pgs. 3-4, 19-20.

(3) During the initial portion of closing argument, the prosecutor stated “so without any evidence contradicting that the State has proven to you beyond a reasonable doubt the first element of the charge;” “in cases like this, it is always a one-person’s word against another;” “it is the word of [the victim] against the plea of not guilty that Gary Bell has entered;” “[s]o if you are looking for a reason to not believe [the victim] there isn’t one.  Because there is no evidence that she would have made this up at this particular time under these particular circumstances;” and, “[t]his is also a very important day for [the victim], her family and the people of the State of Florida who I represent.”  The Court found such statements either impermissibly commented on Bell’s right to remain silent, or otherwise implied that Bell had a burden of proof.  See Bell, SC10-916, slip op., pgs. 5, 6, 7, 13, 14.

(4) In the rebuttal portion of closing argument, the prosecutor stated, “Well, did you hear any testimony, any evidence that supports that statement?”  The Court found that such statement was proper, as it was an invited response.  See Bell, SC10-916, slip op. pgs. 8, 16.

Finally, in Esdras Cardona v. State, 4D09-3636, the Fourth District held that the trial court erred in not holding an evidentiary hearing before ordering specific procedures for DNA testing.  The most interesting thing of the opinion?  The trial judge who was reversed is Judge Gerber-who now sits on the Fourth DCA.

Happy reading!

A Hollow Victory in Lozman v. City of Riviera Beach, Timeliness of Habeas Claims, and Disqualification of Judges Who Are Facebook Friends with Prosecutors

It’s already mid-week, but I wanted to pass along a few things that might interest you.  Remember the guy Fane Lozman who was fighting the City of Riveira Beach over marina fees owed for his houseboat?  Well, the United States Supreme Court issued an opinion in his case, Lozman v. City of Riviera Beach, No. 11-626.  The Supreme Court reversed the Eleventh Circuit, making Lozman the victor.  Too bad the City already destroyed his houseboat.

The Eleventh Circuit recently issued an en banc opinion in Michael Duane Zack v. Kenneth Tucker, No. 09-12717, wherein the Court held that the AEPDA statute of limitations applies claim-by-claim, rather than to the petition as a whole.  If you handle a lot of habeas cases, the opinion is worth a quick read.  My least favorite part of the opinion?  Judge Carnes’ concurrence, where he ridicules the position taken at oral argument by one of the attorneys as absurd.  Ouch.

Finally, attorneys throughout the State of Florida, civil and criminal alike, might want to monitor the case of Pierre Domville v. State, 4D12-556, where the Fourth District Court of Appeal has certified a question of great public importance to the Florida Supreme Court:  “Where the presiding judge in a criminal case has accepted the prosecutor assigned to the case as a Facebook “friend,” would a reasonably prudent person fear that he could not get a fair and impartial trial, so that the defendant’s motion for disqualification should be granted?”  An article in the Palm Beach Post can be read here.

Judge Who is Facebook Friends with the Prosecutor Should Have Recused

Just a quick note to mention that in Domville v. State, No. 4D12-556, Florida’s Fourth District Court of Appeal recently held that a Judge who is Facebook friends with the prosecutor should have recused himself.  This is an opinion that Florida’s criminal defense and criminal appeals attorneys may want to keep handy.  And if you haven’t googled the Judges on your cases to see if they have a Facebook page, you should do so now . . .

Eleventh Circuit Denies Petition for Habeas, Mark Duke v. Richard Allen, No. 09-16011

A recent opinion issued by the Eleventh Circuit is the latest example of how difficult it can be for a criminal defendant to win a petition for writ of habeas corpus.  On May 26, 2011, the Eleventh Circuit affirmed the District Court’s denial of Mark Duke’s 2254 petition, finding that the Alabama prosecutor’s statements made in closing argument did not impermissibly comment on Duke’s right to remain silent.  However, in a strong dissent, Circuit Judge Wilson pointed out the logical flaws of the majority opinion’s analysis of the prosecutor’s statements.  The slip opinion can be found here.


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