Appellate Law, Criminal Defense, Criminal Appeals & Criminal Appellate Review and Post Conviction Relief in Florida Courts, Federal District Courts and the 11th Circuit for Criminal Attorneys, Criminal Lawyers & Appellate Lawyers
You may have read my previous post wherein I mentioned that the Eleventh Circuit has finally ruled that Florida’s death penalty statute is constitutional. SeeEvans v. Sec‘y, Dept. of Corrections, No. 11-14498 (opinion issued October 23, 2012). Well, now what can Evans do?
Only Evans and his criminal appeals lawyers know for certain what will happen next, but any appellate attorney knows that Evans generally has 3 options: (1) do nothing; (2) seek rehearing in the court of appeals; or, (3) seek discretionary review in the United States Supreme Court. If he is going to try to seek rehearing in the Eleventh Circuit or discretionary review in the United States Supreme Court, he’ll have to act quickly.
A motion for rehearing in the Eleventh Circuit (“Petition for Panel Rehearing”) will have to be filed within 14 days after the entry of judgment. See Fed. R. App. P. 40. The Federal Rules of Appellate procedure can be found on the website for the Eleventh Circuit by clicking here.
If Evans decides to seek review in the United States Supreme Court, United States Supreme Court Rule 13 provides that a party seeking to file a petition for writ of certiorari will have to file the petition within 90 days after the entry of judgment. Rule 13.3 further provides that the 90 days begins to run from the date of the entry of the judgment, not the date mandate issues. If rehearing is sought in the lower appellate court, the 90 days begins to run from the date of the denial of rehearing or, if rehearing is granted, the subsequent entry of judgment. The Rules of the United States Supreme Court may be viewed here.
Put simply, seeking discretionary review in the United States Supreme Court is a long shot. For an interesting article on seeking review in the Supreme Court, view an article posted on the Mayer Brown website by clicking here.
I haven’t had time to read the opinion, as it was just released yesterday, July 12, 2012. The only thing I can say right now is I’m disappointed, but not at all surprised. Check out the opinion at the Florida Supreme Court website, http://www.floridasupremecourt.org, or by clicking here.
It’s been quite a while, but still no word from the Court on two important criminal appeals cases. If you recall, Hernandez concerns the issue of advising criminal defendants of the immigration consequences of their pleas, in light of the United States Supreme Court decision, Padilla v. Kentucky. Adkins involves the constitutionality of Florida’s drug possession statute, section 893.13. The longer the wait, the more cases pile up in the courts, both at the trial and appellate levels. The docket for State v. Hernandez, SC11-1357, and State v. Adkins, SC11-1878, can both be viewed at the Florida Supreme Court website.
In a recent post, I mentioned that the Florida Supreme Court has accepted jurisdiction over the case of State v. Luke Jarrod Adkins et al., SC11-1878, to decide the constitutionality of Florida’s drug statute, section 893.13. Although oral argument had originally been set for December 8, 2011, the docket shows that oral argument has been moved up to December 6, 2011. The first briefs were due in the Court on November 2, 2011, but do not yet appear in the docket.
The Palm Beach Post reports several Judges in the Fifteenth Judicial Circuit in and for Palm Beach County have recently denied motions to dismiss, finding that Florida’s drug possession statute, section 893.13, is constitutional. According to the report, the Judges who found the statute constitutional are Judges John Kastrenakes, Judge Stephen Rapp, Judge Edward Fine, and Judge Richard Oftedal.
Under the present version of section 893.13, prosecutors are not required to prove that criminal defendants have knowledge of the illicit nature of the drugs. You may recall from my previous posts on this issue, that Judge Mary Scriven and Judge Milton Hirsch ruled that the elimination of the knowledge requirement rendered the statute unconstitutional. However, according to the Palm Beach Post report, Judge Katrenakes came to the exact opposite conclusion, and reasoned that the Florida Legislature basically knew what it was doing when it eliminated the knowledge requirement.
The fact that Judges across the State are reaching opposite conclusions as to the constitutionality of section 893.13 can be frustrating for criminal defendants and their attorneys right now. While one attorney may win a motion to dismiss for his or her client, another attorney may file the exact same motion in another case assigned to a different Judge and lose. How does that happen? Well, each Judge has the independence to rule however they fit, until there is a controlling appellate decision. And since there is no controlling appellate decision at this time, the conflict is likely to continue.
Ultimately, conflict between the Judges will turn out to be a good thing. Why? Conflict between the Judges at the trial court level is an indicator that there could be conflict at the next stage: appeals. And conflict at the appeals stage is a very good thing, because if there is conflict between Florida’s District Courts of Appeal, then the Florida Supreme Court may be forced to take the case to resolve the issue for the entire State.
In December of 2010, the Florida Supreme Court held that when a Defendant files a motion to dismiss claiming immunity from prosecution under Florida statute section 776.032, otherwise known as Florida’s”Stand Your Ground” statute, the trial court is required to hold a pre-trial evidentiary hearing to “decide the factual question of the applicability of the statutory immunity.” See Dennis v. State, 51 So. 3d 456, 457 (Fla. 2010). According to the Court, while a motion to dismiss based on section 776.032 should properly be filed pursuant to Fla. R. Crim. P. 3.190(b), the trial court is still required to hold an evidentiary hearing even if the motion to dismiss is mistakenly filed pursuant to Fla. R. Crim. P. 3.190(c)(4). Finally, the Court noted that any motions to dismiss mistakenly filed under Rule 3.190(c)(4) should be treated as having been properly filed under Rule 3.190(b). Where the trial court fails to hold a pre-trial evidentiary hearing, any appeal of the failure to hold the hearing should be analyzed under the “harmless error test” of State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). See Dennis, 51 So. 3d 464 (noting that an error is harmless if “the error complained of did not contribute to the verdict or, alternatively stated, . . . that there is no reasonable possibility that the error contributed to the conviction.”)
This issue continues to be a hot topic. On August 31, 2011, Florida’s Fourth District Court of Appeal was the latest court to issue an opinion on the issue. See Govoni v. State, No. 4D09-2371 (remanding case for trial court to conduct evidentiary hearing pursuant to Dennis) (slip opinion).