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: South Florida

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.

Case to Watch in the 4th DCA: Brent Del Gaizo v. Hon. Peter M. Weinstein et al, 4D12-2548

South Florida criminal defense lawyers who are interested in Florida’s latest legislative reforms to payment for court appointed counsel, otherwise known as S.B. 1960, might like to know that the Broward and Miami Dade Associations of Criminal Defense Lawyers have filed a petition seeking to challenge the constitutionality of S.B. 1960.

According to the petition, Petitioners ask the Fourth DCA to (1) issue a writ of certiorari quashing the 17th Judicial Circuit’s Administrative Order number 2012-45-Gen, which appointed Judge Ilona Holmes as the only Judge to hear requests by General Registry attorneys to exceed the statutory caps; (2) issue a writ of quo warranto determining that Melodee Smith and other members of the Limited Registry are ineligible to hold the office of court-appointed counsel due to the illegality of the Florida statute under which the Limited Registry was established; and, (3) issue a writ of prohibition prohibiting the Seventeenth Judicial Circuit’s Clerk of Court, Howard Forman, from appointing attorneys from the Limited Registry when private court-appointed counsel is required.

This seems like an interesting case to watch.  For a link to the case, DelGaizo v. Hon. Peter M. Weinstein et al, No. 4D12-2548, click here.

Funny Friday Reading from the Eleventh Circuit–But Not That Funny

I’ve been a little depressed after the Florida Supreme Court issued its opinion in Adkins the other day (I bet lots of other criminal defense and criminal appeals lawyers are too), so I thought I’d look for something to cheer me up.  Well, I thought I found it when I came across this opinion recently released from the Eleventh Circuit.  Butler v. Sheriff of Palm Beach County, No. 11-13933, is a case that arose right in our own backyard-South Florida.  The opinion starts out pretty comical:

In one of his ballads, Jim Croce warned that there are four things that you
just don’t do: “You don’t tug on Superman’s cape/ You don’t spit into the wind/
You don’t pull the mask off that old Lone Ranger/ And you don’t mess around
with Jim.” He could have added a 1 fifth warning to that list: “And you don’t let a
pistol-packing mother catch you naked in her daughter’s closet.”

After having a small laugh, I continued reading.  The opinion continued:

It all started with a phone call.2 Nineteen-year-old Uzuri Collier called
Larry Butler, who was of a similar age, and invited him to her house. Butler
responded to the invitation the way most young men over the age of consent
would have—he went. Once Butler was at Uzuri’s house, he and she consented to
watch television for a while. Then they consented to do what young couples alone
in a house have been consenting to do since the memory of man (and woman)
runneth not to the contrary. The record does not disclose how long these two
young people had known each other in the dictionary sense, but that afternoon in
Uzuri’s bedroom they also knew each other in the biblical sense. While doing so,
and while clothed in the manner that is customary in such matters, which is to say
not at all, they heard someone coming into the house.

The record does not tell us how the timing worked out as unfortunately as it
did. It may be that the two young people simply lost track of time, which would
be understandable given the circumstances. Or it may be that Uzuri’s mother,
Dorethea Collier, left work early that day. However it happened, Collier came
close to catching the couple coupling. So close that when they heard her, Butler
had only enough time to dash into the bedroom closet wearing nothing but a look
of surprise.

After reading the rest of the opinion, I decided that the case is not that funny.  After all, a young man almost got shot.  Why the need to start the opinion quoting Jim Croce?  And how is it that the Eleventh Circuit found that Collier, a corrections officer at the Eagle Academy, which is a “bootcampfacility for minors” run by the Palm Beach County Sheriff’s Office, was NOT acting under color of State law with these facts?

She yelled at him and punched him one time. Then Collier picked up her utility belt, put it
back on, and drew her gun. She told Butler that if he moved or did not follow her
commands, she would shoot him.

Butler tried to explain that Uzuri had invited him to the house, but Collier
insisted that he must have broken in. She had the still-naked Butler turn around,
she handcuffed him, and she made him get down on his knees. After staying there
“for a prolonged period,” Butler pleaded with Collier that he could not maintain
that position any longer. Collier responded by telling him to bend over or she
would shoot him. She “made numerous threats against Butler, [telling him] that
she would ‘kill him’ if he did not obey her commands.”
While still holding Butler at gunpoint, Collier called her husband and told
him to come home immediately. After that, she called a supervisor at Eagle
Academy and asked what charges she could bring against Butler for entering the
house and “engaging in sexual relations with her daughter.” The supervisor told
Collier that if Butler had entered without permission he could be charged with
trespassing and rape, but that if he had been invited in, she would have to let him
go. About this time, Collier’s husband arrived at the house, and he “also assaulted
Butler.” In what manner, we are not told.
Collier continued to hold Butler at gunpoint, threatening to kill him if he did
not follow orders. After Collier’s husband “inquired further” about the naked
man’s identity and determined who he was, Butler was allowed to get dressed and
leave, although Collier kept the gun pointed at him while he was dressing. One
can assume that it did not take Butler long to get dressed and get out, but before he
had time to leave Collier “warned him about the consequences of filing charges or
even ‘thinking about’ reporting the incident.” She told Butler that if he reported
what had happened, she “would submit a report to discredit him and would engage
in some ‘creative writing’ if necessary to justify the filing of charges against him
for trespassing on the property.”

United States Supreme Court Justice Kagan Authors Well Reasoned Dissent in Williams v. Illinois, 10-8505

Just an update on Williams v. Illinois, No. 10-8505, a case that I mentioned in yesterday’s post.  After taking some time to read the lengthy opinion (98 pages!), I wanted to say that every criminal defense and criminal appellate lawyer in South Florida should take the time to read Justice Kagan’s dissent.  The dissent exposes numerous flaws in the rationale of the plurality opinion, and does so with logic and style.  Yes, a 98-page opinion can seem daunting, but you’ll see that the reading really passes quickly.  Just keep in mind the big picture: the Justices are squabbling over whether the admission of the lab technician’s testimony violated the Confrontation Clause under Crawford v. Washington, 541 U. S. 36 (2004), Melendez-Diaz v. Massachusetts, 557 U. S. 305 (2009), and Bullcoming v. New Mexico, 564 U. S. — (2011).  Happy reading!

Florida Legislature Votes to Change How Court Appointed Attorneys Are Paid-Again

The word is spreading fast among South Florida’s criminal defense lawyers.  In a last minute legislative maneuver, the Florida legislature passed SB 1960, a bill which takes effect July 1, 2012.  The bill changes the way court appointed attorneys are paid in Florida-again-by creating two registries: a “general registry,” and a “limited registry.”  If you are an attorney that is currently on a court-appointment wheel, you may soon be getting an e-mail from your judicial circuit administrator asking you if you want to be listed on the general registry, or the limited registry.  According to the language of SB 1960, attorneys on the limited registry will be limited to a statutory cap on their attorney’s fees.  The caps, as outlined in soon-to-be-effective section 27.5304, entitled “Private court-appointed counsel; compensation,” provides the following caps on fees:

(1) For misdemeanors and juveniles represented at the trial level: $1,000

(2) For noncapital, nonlife felonies represented at the trial level: $2,500.

(3) For life felonies represented at the trial level: $3,000

(4) For capital cases represented at the trial level: $15,000.  The Bill defines a “capital case” as “any offense for which the potential sentence is death and the 280 state has not waived seeking the death penalty.”

(5) For representation on appeal: $2,000.

See SB 1960, section 27.5304(5).  Attorneys will only be permitted to exceed the statutory cap upon the filing, and granting, of a motion. See SB 1960, section 27.5304(12).

A word of caution to criminal defense attorneys who opt to be listed on the “general registry:” pursuant to SB 1960, section 27.40, if your circuit creates a “limited registry,” the court will have to make appointments from the “limited registry” first, and then only from the “general registry” if there are “no attorneys available to accept the appointment on the limited registry.”  See SB 1960, section 27.40(3).

If you are an attorney who takes appointments to criminal cases, you might want to take a few moments and read the bill in its entirety.


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