Tag Archives: South Florida

Daniel Mark Zavadil: Florida Supreme Court Disbars Member of Florida Bar Who Formerly Served as Fort Lauderdale Police Officer

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Here’s an opinion which might interest South Florida’s criminal defense bar.  Today, May 30, 2013, the Florida Supreme Court has disbarred a former Fort Lauderdale Police Officer named Daniel Mark Zavadil.  In Florida Board of Bar  Examiners re: Daniel Mark Zavidil, No. SC11-1694, Zavadil applied to the Bar in 2007.  Zavadil, slip op. pg. 1.  Although he passed the bar exam, the background investigation revealed information from his days as a police officer which required further inquiry.  He attended an investigative hearing in 2009, submitted a 21 page brief on legal ethics, and was admitted in 2010.  However, the investigation continued, and the Bar held another formal hearing in 2011.  Zavadil, slip op., pg. 2.  Based on the testimony and argument presented at the formal hearing, the Board of Bar Examiners  recommended disbarment of Zavadil.  Id. at pg. 8.  The Court adopted the recommendation and has disbarred him for 18 months.  Id. at pgs. 14-15.

What did Zavadil do that merited disbarment?  In short, he failed to disclose in his bar application several events which occurred while he was a Fort Lauderdale PD officer which reflected on his truthfulness and candor, and failed to testify truthfully and candidly in his defense.  See id at pgs. 13-14.  According to the opinion, Zavadil failed to disclose: (1) the fact that his supervisor filed a complaint against him for “discrepancies, omissions, and misinformation in Zavadil’s reports, as well as a pattern of ‘misrepresenting the facts in order to shift responsibility for [his] identified deficiencies;’” (2) that on November 18, 2008, he received a letter from the Chief of Police, notifying him that he would be suspended for three days, effective in January 2009; (3) that the suspension was rescinded by the City of Fort Lauderdale after Zavadil filed a complaint for injunctive relief in the circuit court; and, (4) the fact that in 2009, Zavadil was relieved from patrol duty, with pay, effective immediately.  Slip op., pgs. 3-6.  The Board of Bar Examiners also found Zavadil’s testimony was “lacking in candor, misleading, and evasive.”  See id at pg. 8.

Zavadil’s Florida Bar profile already reflects his disbarment.

Happy 2013, South Florida!

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Since it’s the holiday season, news in the criminal appeals arena has been a little slow, but I thought I’d pass along a few items.

First, John Goodman’s appeal is proceeding along, with the State of Florida filing its Answer Brief on December 26, 2012.  Although the Answer Brief is not available electronically, you can read a summary of the State’s arguments in the Palm Beach Post by clicking here.  The 4th DCA docket for the case, 4D12-1930, can be viewed by clicking here.  Although Goodman’s attorneys have requested oral argument, the Court has not yet ruled on the request.  From my experience, the 4th DCA does not often grant requests for oral argument.  However, perhaps the high-profile nature of the case might influence the Court to grant the request.

Next, Broward County is considering changing its name to Lauderdale County.   According to the Sun Sentinel, the goal of the change would be to promote tourism.  Would a name change really make that much of a difference?

Finally, the bad news.  Wyatt Cenac is leaving the Daily Show with Jon Stewart!  To view some of the top Wyatt  Cenac moments, click here, here, and here.

Happy 2013, South Florida!

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

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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

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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

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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

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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

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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.




			

	
		
	


				
					


		

		
Eleventh Circuit Rejects Actual Innocence Claim in Petition for Writ of Habeas Corpus: Rozzelle v. Secretary, Florida Dept. of Corrections, No.10-13595


				

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Florida criminal defense lawyers who handle federal petitions for writ of habeas corpus won’t be surprised to learn that the United States Court of Appeals for the Eleventh Circuit has recently rejected a claim of actual innocence.  Although the case, Roger Allen Rozzelle v. Secretary, Florida Dept. of Corrections, No.  10-13595, is long and contains a highly factually intensive analysis and procedural history, it’s worth taking a few minutes to review the Court’s discussion of the different types of claims of actual innocence that can be made in the habeas context.  Such discussion is found at pages 26-49 of the slip opinion.


Enjoy the rest of your weekend, South Florida!

			

	
		
	


				
					


		

		
New State Attorney Appointed for Palm Beach County: Peter Antonacci


				

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It’s been a really busy week, so I’ll keep this short.


The Palm Beach Post reports that Florida Governor Rick Scott appointed a new State Attorney for Palm Beach County today:  Peter Antonacci.  The criminal defense and criminal appeals lawyers of South Florida may recall that he previously served as Statewide Prosecutor, as well Bob Butterworth’s Deputy Attorney General.  More information on Antonacci’s previous experience has also been reported in the Sun Sentinel.


Antonacci sounds qualified enough on paper, but the fact that he most recently served as a Tallahassee lawyer and lobbyist, and that he admitted to having a “professional friendship” with Scott’s chief counsel, Charles Trippe, may also have had something to do with the appointment.  After all, he was chosen over 10 other applicants, one of whom was former Palm Beach County State Attorney Barry Krischer!  How’s that for Florida politics?

			

	
		
	


				
					


		

		
February 16 and 17, 2012: National Task Force to Hold Hearings in Miami On the Restoration of Rights and Status After Conviction


				

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I’ve previously discussed some of the difficulties convicted felons face when trying to restore their civil rights and reintegrate into their community.  (See my previous post here.  Well, as a member of the Florida Association of Criminal Defense Lawyers, I’ve received notice that there is going to be an important hearing in Miami, Florida, on February 16 and 17, 2012.  If you are a South Florida criminal defense lawyer who does any work in the area of restoration of civil rights, you may wish to attend.


The press release I received states,




National Task Force to Hold Hearings in Miami


On the Restoration of Rights and Status After Conviction


 


Washington, DC­ (February 14, 2012) – With more than 65 million Americans possessing a criminal record, the consequences of conviction – specific legal barriers, generalized discrimination, and social stigma – have become more numerous and severe, more public, and more permanent. These restrictions affect jobs and licenses, housing, public benefits, judicial rights, parental rights, interstate travel, and even volunteer opportunities. Moreover, the legal mechanisms relied on in the past to restore rights and status for formerly convicted individuals have atrophied or become ineffective, with the result that a significant percentage of the American public is permanently consigned to second class citizenship. 


 


The National Association of Criminal Defense Lawyers’ (NACDL) Task Force on Restoration of Rights and Status After Conviction will hold its second hearing to undertake an inquiry into how legal mechanisms for relief from the collateral consequences of conviction are actually working, in state and federal systems on Thursday and Friday, February 16-17, 2012, in Miami, Florida. 


 


The Task Force’s inaugural hearing was held in Chicago, Illinois, Oct. 20 and 21, 2011. Witnesses shared a range of personal and professional experiences, perspectives and expertise on the important practical issues surrounding barriers to re-entry and the collateral consequences of a criminal record. Witnesses included Judge Paul Biebel, Presiding Judge, Cook County Circuit Court, Criminal Division, U.S. Congressman Danny Davis and John Schomberg, General Counsel, Office of the Governor of Illinois. Illinois has been working diligently to ensure that clemency applications are reviewed as timely as possible, creating the possibility for individuals to live without the burden of a conviction on their record. 


 


The approximately two dozen witnesses in Miami will include representatives from community organizations, defense lawyers, researchers, civil rights advocates and treatment providers, as well as invidivudals with convictions who themselves confronted barriers to re-entry.   The Task Force is particularly interested in Florida due to their recent changes in clemency rules and subsequent backlog of applications.  


 


A schedule and witness list follows this message.


 


WHEN:          Thursday, February 16, from 9 a.m. to 5:30 p.m. and Friday, Friday, February 17,          9:30 a.m. to 2:15 p.m. 


WHERE:       Carlton Fields


Miami Tower


100 S.E. Second Street


Suite 4200 (42nd Floor)


Miami, FL 33131-2113


 


If you are interested in attending part or all of these hearings, please contact NACDL’s State Legislative Affairs Director Angelyn C. Frazer at afrazer@nacdl.org or at (202) 213-9302 (mobile) by the close of business on Wednesday Feb. 15, 2012.


Contact: Ivan Dominguez, Deputy Director of Public Affairs & Communications, (202) 465-7662 or idominguez@nacdl.org.