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: Supreme Court

Gil v. State: SC11-1983: Florida Supreme Court Reverses Third DCA and Holds That Double Jeopardy Precludes DWLS and HTO Charges Arising From Same Incident

Florida’s criminal defense and criminal appeals attorneys who handle a lot a traffic offenses will be happy to know that the Florida Supreme Court has reversed the Third DCA in Gil v. State, SC11-1983, on an issue that occurs all too often.  I’m sure you’ve seen it before: just as in Gil, your client gets stopped for one reason or another, and during the stop, the officer determines that your client has been driving on a suspended license.  As in Gil, your client will probably be charged with misdemeanor DWLS, under section 322.34(2).  And if your client really lucky, he or she might also be charged as an Habitual Traffic Offender (HTO) under section 322.34(5).  Is that proper?  Not anymore.  According to the Supreme Court in Gil, because DWLS under section 322.34(2) is a degree variant of HTO under section 322.34(5), the State Attorney can no longer charge your client with offenses under both sections–assuming, of course, that the offenses both arise from the same incident.

Van Poyck v. State, SC 73662: Florida Supreme Court Order Requiring Prior Counsel to Remain As Counsel And Other Developments

Florida’s criminal defense and criminal appeals attorneys who are interested in the developments of the Van Poyck death penalty case may want to know that I found the Supreme Court order requiring Van Poyck’s prior counsel to remain on the case.  If you want to read it, click here.  In response to the Order, two of Van Poyck’s previous attorneys have just filed a Motion to Vacate and Alternative Motion for Rehearing of the Supreme Court order.

If you have time and are interested in all the procedural drama, feel free to view the other orders and motions in the case by clicking here.

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 . . .

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. . .

Florida Supreme Court Issues Opinions on Fellow Officer Rule, Administrative Suspension of Drivers Licenses in DUI cases, and Certiorari Review: State v. Bowers, No. SC09-1971, and Nader v. Florida Dep’t of Highway Safety and Motor Vehicles, No. SC09-1533

Last week, the Florida Supreme Court issued two opinions which are important for different reasons.  The first, State v. Bowers, No. SC09-1971, is a real victory for criminal defense lawyers all over the State.  The second, Nader v. Florida Dep’t of Highway Safety and Motor Vehicles, No. SC09-1533, has important implications for appellate lawyers, both criminal and civil.

If you handle a lot of suppression hearings in traffic stop cases, you’re probably familiar with the fact that sometimes, the officer who stopped your client may not appear for the hearing.  If that happened, prosecutors might previously have relied on the fellow officer rule to elicit testimony from another officer who was on scene to testify at the hearing as to the basis for the traffic stop.  (I remember having to do that fairly often when I was a prosecutor in Broward.)  Now, as a result of State v. Bowers, prosecutors won’t be permitted to use the fellow officer rule as a way to circumvent hearsay rules in suppression hearings anymore.  It’s not a difficult or long opinion to read, so I won’t bother to rehash it here.  The bulk of the opinion focuses on the rationale underlying the fellow officer rule, as well as the proper purpose of the rule.

Attorneys who handle criminal appeals should take a minute to read Justice Lewis’ dissent in Bowers.  In my opinion, he makes a valid point: that the Second District Court of Appeal erred by dispensing with the applicable rules of procedure, and granted certiorari review in Bowers merely because it disagreed with the Fourth District Court of Appeal’s Ferrer opinion.  Justice Lewis stated:

The decision below is the equivalent of a canary in a coal mine, marking the beginning of the end of the constitutionally mandated limitations imposed on the jurisdiction of our district courts.  As discussed in my dissent to this Court‟s majority opinion in Nader v. Florida Department of Highway Safety and Motor Vehicles, No. SC09-1533 (Fla. Feb. 23, 2012), this case is an example of district courts doing precisely what the majority in Nader cautions against: “grant[ing] relief merely because [the district court] disagrees with the precedent from another district court.” Nader, slip op. at 22.  Here, the Second District acknowledges its disagreement with another district court, using that disagreement as its sole basis for granting second-tier certiorari review.  See Bowers, 23 So. 3d at 771 (“We recognize that by relying on [Ferrer v. State, 785 So. 2d 709 (Fla. 4th DCA 2001)], the circuit court applied existing precedent from another district.  Nevertheless, we grant certiorari relief on the basis that Ferrer misapplied the fellow officer rule and should be rejected.  See Dep’t of Highway Safety & Motor Vehicles v. Nader, 4 So. 3d 705 (Fla. 2d DCA 2009) (emphasis supplied).  This case, like Nader, “will destabilize Florida’s delicate judicial ladder, opening the flood gates of second appeals to our already overworked and overburdened district courts of appeal as described by those appellate courts.”  Nader, slip op. at 29 (Lewis, J., dissenting).

Bowers, SC09-1971, slip op. at pg. 15-16 (Lewis, J., dissenting).  Justice Lewis also complains that the Bowers majority failed to recognize such jurisdictional issue.

Don’t get me wrong.  I agree with the overall result of Bowers: that the fellow officer rule should not be used to circumvent hearsay rules at suppression hearings where the basis for the initial traffic stop is at issue (as opposed to probable cause for the subsequent arrest).  However, I feel just as strongly that the rules of procedure should not be disregarded by any court for mere political reasons.

Nader v. Florida Dep’t of Highway Safety and Motor Vehicles, No. SC09-1533, the opinion to which Justice Lewis refers, was issued the same day as Bowers, and has important implications for lawyers who handle appeals.  In Nader, the Court answered two certified questions:

1. DOES A LAW ENFORCEMENT OFFICER‟S REQUEST THAT A DRIVER SUBMIT TO A BREATH, BLOOD, OR URINE TEST, UNDER CIRCUMSTANCES IN WHICH THE BREATH-ALCOHOL TEST IS THE ONLY REQUIRED TEST, VIOLATE THE IMPLIED CONSENT PROVISIONS OF SECTION 316.1932(1)(A)(1)(a) SUCH THAT THE DEPARTMENT MAY NOT SUSPEND THE DRIVER‟S LICENSE FOR REFUSING TO TAKE ANY TEST?

2. MAY A DISTRICT COURT GRANT COMMON LAW CERTIORARI RELIEF FROM A CIRCUIT COURT’S OPINION REVIEWING AN ADMINISTRATIVE ORDER WHEN THE CIRCUIT COURT APPLIED PRECEDENT FROM ANOTHER DISTRICT COURT BUT THE REVIEWING DISTRICT COURT CONCLUDES THAT THE PRECEDENT MISINTERPRETS CLEARLY ESTABLISHED STATUTORY LAW?

Nader, SC09-1533, slip op. at pg. 2.  The Court answered the first question in the negative (ie, the Court held that the Department properly suspended Nader’s driver’s license because there was no violation of the implied consent law), but answered the second question in the affirmative (ie, the Court held that the Second DCA properly granted certiorari review).

If you handle a lot of DUI cases or administrative suspension cases, you should take a few minutes to read the first portion of Nader, as the Court recites many of the statutory provisions relating to the implied consent warning, as well as the administrative suspension of a driver’s license in refusal cases.  However, appellate attorneys, both criminal and civil, should read the second half of Nader, as the Court discusses various aspects of certiorari review.  As with the Nader opinion, Justice Lewis again criticizes the majority with a strong dissent on the issue of second-tier certiorari review.

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