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: State

E-Filing in Florida’s Appellate Courts: A Work in Progress

Can you guess which of Florida’s appellate courts is not like the others?  If you handle criminal appeals on a regular basis, then you know that four out of five of Florida’s District Courts of Appeal are on eDCA, the electronic filing system begun by the 1st DCA a while ago: the First, Third, Fourth and Fifth DCA.  But one of them stands alone: the Second DCA.   While the other DCA’s opted to follow the course of the First DCA, and begin their foray into e-filing on eDCA, the Second is the only DCA to skip eDCA, and commence its foray into e-filing by jumping directly onto Florida’s Statewide e-filing Portal.  (the Florida Supreme Court did this as well a few months ago).  Today marked the first day of voluntary filing with the 2nd DCA through the Portal.

Have any of you tried filing with the 2d DCA through the Portal?  I did.  It leaves a lot to be desired.  Don’t get me wrong, e-filing definitely beats having to send  your briefs, motions, and responses via FedEx, followed by a courtesy copy by e-mail, but for some reason, the Portal does not seem to provide access to the court docket.  To see the appellate docket, you still need to go to the “online dockets” link from the Portal website, or at any of the DCA webpages, and those dockets are not real-time.  So in other words, you can submit something electronically, but it still won’t show up on the docket for several days.  The other thing I don’t like is that when you’re filing through the Portal, you don’t get a time-stamped copy to reflect the time and date of your e-filing.  Similar to the Federal CM/ECF system, the e-DCA system provides both of those functions.

If you are lucky enough to be in Federal court, then you get the ease of working with CM/ECF.  In my view, CM/ECF is the best e-filing system there is because you get a real-time docket, time/date stamps on your e-filed pleadings, electronic confirmation of your successful filing, and automatic e-service of your pleadings on the other parties in the case (except pro se parties).  E-DCA is a close second.  Although e-DCA lacks electronic service, e-DCA at least provides you an e-mail alert that a pleading or order was filed in the case, and a link to view the document.  Plus, e-DCA provides you with a real-time docket, time/date stamps on your e-filed pleadings, and electronic confirmation of your successful filing.

E-filing in Florida’s State courts is a work in progress.  In the coming months, the First, Third, Fourth and Fifth DCA will all have to make the transition to the Statewide Portal, as will the rest of Florida’s trial courts.   Hopefully, the Portal we have today is a work in progress, too.

Still Waiting for Order in Evans v. McNeil, 08-14402-CIV-JEM

For any criminal attorneys who have some time on their hands while we wait to see how the Court will rule on the State of Florida’s motion to reconsider, I thought you might like to read the Court’s Order on the petition for writ of habeas corpus.  You can find it here.  A word of warning: the Order is long.  The discussion of the constitutionality of the death penalty scheme runs from pages 78-93.

Meanwhile, according to an article posted in the Miami Herald on June 22, 2011, this is the first time a Court has declared the Florida death penalty scheme unconstitutional.  If the Court maintains its ruling, and the State of Florida appeals to the Eleventh Circuit, as Attorney General Pam Bondi has stated will likely be done, such an appeal could set the stage for the case to make its way to the United States Supreme Court.

Two US Representatives Introduce Bill to End Some Federal Penalties for Marijuana, But Maybe a Different Approach is Needed

The Palm Beach Post has reported that US Representatives Barney Frank and Ron Paul have introduced a bill that would end some Federal penalties for marijuana.  Although many on the left will praise the Representatives for introducing the bill, any party (no pun intended) will likely be short lived.  While a recent report by the Global Commission on Drug Policy indicates that there may be growing support for a bill like that introduced by Representatives Frank and Paul, the likelihood of the bill passing seems to be very low.  Not only is the House controlled by Republicans, but the Democrats lack a majority in the Senate.  It seems pretty unlikely that enough Republican Senators would cross the aisle and vote in favor of such a bill.

Instead of focusing their efforts on decriminalization, perhaps Federal legislators should consider providing increased funding for State drug court programs.  In 2006, the Department of Justice issued a report wherein the Department discussed the feasibility of a Federal drug court program.  In the last footnote on the last page of the Report, the Department noted that 72% of State courts reported that a lack of funding was their major obstacle.  Increasing  funding to State drug court programs would provide both social and economic returns to both Federal and State governments.  With their focus on rehabilitation instead of incarceration, drug courts have helped to reduce the caseloads in other criminal divisions, have helped to reduce the prison population, and have helped to address the problems of repeat offenders.  Drug courts may also help save money down the road.  If drug court participants get the treatment they need in drug court, they may be less likely to commit more drug related offenses in the future.  And if those same drug court participants commit fewer drug related offenses, fewer arrests and prosecutions will be needed, thereby saving many State and Federal agencies time and money.

Everyone knows the economy is suffering now, and has been for quite some time.  What many people, other than attorneys, may not know is that the Courts are facing similar economic issues.  The State of Florida has reduced court funding to dangerous levels.  Even though the US Congress faces numerous budgetary issues, it may be smart to revisit the issue of drug court funding.

To learn more about Florida’s drug courts, go here.

Appeals in State and Federal Courts

Whether a party is in State or Federal court, whenever a court renders an adverse decision, a party should consider several factors in deciding whether to appeal the order, including: (1) whether there is a right to appeal the order; (2) when the appeal may be filed; (3) what are the time limits governing the appeal; (4) in which court will the appeal lie; (5) what is the applicable standard of review; and, (6) what are the costs associated with the appeal.

With regard to the right to appeal, parties should be aware that some orders may not be immediately appealable.  Rather, the rules may provide that the appeal may only be heard at the end of the case.

With regard to the time of the appeal and applicable time limits, the parties may wish to consult the appellate rules for guidance on the time in which notices of appeal, appellate briefs, and appeals-related motions should be filed.  Failure to follow the applicable rules may result in a party losing the appeal.  The Rules for the United States Court of Appeals for the Eleventh Circuit may be found here.  The Florida Rules of Appellate Procedure may be found here.

In determining where to file the appeal, appeals in both the State and Federal system generally lie with the next higher court.  For example, State court cases in the County Court may be appealed to the Circuit Court, and Circuit Court cases may be appealed to the District Court of Appeal.  Opinions rendered by any of the Florida District Courts of Appeal may be appealed to the Florida Supreme Court.  In the Federal system, orders issued by a United States Magistrate Judge may be appealed to the United States District Court, District Court orders may be appealed to the Eleventh Circuit, and opinions issued by the Eleventh Circuit may be appealed to the United States Supreme Court.

Standards of review on appeal include de novo and abuse of discretion.  A party should be aware that the likelihood of success on appeal may be determined in large part by the applicable standard of review.

Finally, a party should be aware that costs of an appeal may be substantial.  Prior to deciding whether to appeal, a party may wish to consider the costs associated with filing the notice of appeal, designating the record and transcripts, and filing briefs and motions.  Having counsel attend oral argument may also add to the cost of appeal.

Relationship between State and Federal Courts in Florida

As I mentioned in my previous post, the State and Federal courts generally operate independent of each other.  However, there are occasions where the courts operate in a more related fashion.

For example, in the civil context, where a plaintiff may choose to commence litigation in State court, the defendant may choose to remove the action to Federal court, so long as the conditions for Federal jurisdiction are met, including diversity of the parties and amount in controversy, or federal question jurisdiction.  See 28 U.S.C. sec. 1331, 1332, 1441, 1446.  Or, where a plaintiff may choose to commence litigation in Federal court, the defendant may choose to remand, or return, the case back to State court.  See 28 U.S.C. sec. 1441.

Before removing a civil matter to Federal court, or remanding the matter back to State court, counsel and the parties may wish to consider several factors, including (1) the costs of litigation in each forum; (2) the complexity of the claims; (3) whether federal claims are involved; and, (4) the need for a timely resolution of the case.

In the criminal context, individuals who are arrested by State agencies, including local police departments and sheriff’s offices, are generally prosecuted in a Florida state court.  However, if a violation of a Federal criminal statute is intertwined with the State criminal offense, the State offense may be prosecuted in Federal court.  Defendants who have been prosecuted in State court may seek to have the Federal courts review the constitutionality of their State convictions pursuant to the writ of habeas corpus.  See 28 U.S.C. sec. 2254.  In Florida, rulings rendered by the United States District Court may be appealed to the United States Court of Appeals for the Eleventh Circuit and to the United States Supreme Court.

Follow

Get every new post delivered to your Inbox.

Join 82 other followers