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: statute

Eleventh Circuit Finds Florida’s Death Penalty Statute Constitutional: What Now? Rehearing in Eleventh Circuit, or Petition for Writ of Certiorari to Supremes?

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.  See Evans 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.

And now the next round of waiting begins . . .

State v. Adkins, SC11-1878: Florida’s Drug Possession Statute Upheld

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.

Still Waiting for Florida Supreme Court to Issue Opinions in State v. Hernandez and State v. Adkins

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. KentuckyAdkins 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.

The wait continues. . .

Update on Shelton issue: Florida Supreme Court Moves up Oral Argument in State v. Luke Jarrod Adkins et al., SC11-1878

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.

Several Palm Beach County Judges Find that Florida’s Drug Possession Statute, Section 893.13, is Constitutional

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.


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