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: trial

Florida Supreme Court Finds Noise Control Statute, Section 316.3045, Is Unconstitutional, and Low Pay for Florida’s Criminal Conflict Attorneys Getting Statewide Attention

Criminal defense attorneys who handle cases involving traffic stops may want to take a few minutes to read an opinion released by the Florida Supreme Court today.  In State v. Catalano, No. SC11-1166, the Florida Supreme Court found that the noise control statute, section 316.3045, Fla. Stat., is unconstitutional.  After engaging in a classic constitutional law/First Amendment analysis, the Court concluded that the statute is unconstitutionally overbroad and an impermissible content-based restriction, and that severance of section 316.3045(3) is not an appropriate remedy to preserve the constitutionality of the statute.

Obviously, if you’ve got a client who’s been charged with a violation of this statute, you should consider filing a motion to dismiss based on Catalano.  However, even if you’ve got  a client who’s charged with only a violation of a similar local ordinance, you might want study the Catalano opinion to determine whether you can move to dismiss the charge, based on an analogy to Catalano.  Before you do so, be sure to determine whether the local ordinance in your case is structured similarly to section 316.3045.

On another note, for those of you who handle appointments in criminal cases, you’re no doubt aware of the State’s changes to the payment structure which went into effect in July of 2012 when the Florida Legislature passed SB 1960.  (If not, you can read my previous post summarizing the changes here).  Well, if you do handle criminal appointments for either trials or appeals, I came across a thorough and well written article in the December 15, 2012, edition of Florida Bar News today that you may want to read.  Hopefully, the publication of the article means that the issue is gaining statewide attention.   Greater attention can only help the plight of Florida’s criminal conflict counsel.

Florida Supreme Court Justices and Fourth DCA Judges Facing Merit Retention Vote In November 2012

All of Florida’s attorneys–not just criminal trial and appellate attorneys–have been hearing for a while now that several of the Justices on the Florida Supreme Court are under attack.  Supreme Court Justices Pariente, Quince, and Lewis are all up for merit retention votes in November 2012.  Judges Carole Taylor and Burton Conner from the Fourth District Court of Appeal in West Palm Beach are also up for merit retention votes in November.  According to the reports being circulated among the members of the Florida and Palm Beach County Bars, political groups, PACs, have been formed to raise massive amounts of money in anticipation of the November elections.  According to the reports, the organizers of the PACs are not based in Florida.

Why all the fuss, you ask?  Several years ago, something similar happened in another State (a mid-western State, I believe).  A large PAC was formed, and the PAC raised massive amounts of money to run political attack ads against several of the State Supreme Court justices.  The justices who were attacked all lost re-election.

Florida’s Supreme Court Justices are in a tough spot.  Although they are elected officials, they are precluded from actually going out and running a formal campaign.  They are also precluded from saying many things that a traditional candidate would say.  In other words, they can be attacked, but cannot fight back.  That’s where we come in.   If you are Florida lawyer, you know that the merit retention vote is about one question: whether the Justice or Judge should retain his or her judicial position based on his or her ability to render decisions on a fair and impartial basis, not whether you as a lawyer agree with those decisions.  As a citizen of the State of Florida, everyone has the responsibility to make an informed choice at the election booths in November.  In addition to reading about your local candidates, you should take a few minutes to read about Florida’s merit retention system here.

Florida Bar News Features Article on Low Pay For Court Appointed Attorneys in Criminal Trials and Appeals

Criminal defense lawyers who accept court appointments to represent the indigent for trial and appeal have long been underpaid.  In a recent post, I discussed Florida’s latest legislative maneuver to decrease the amount of pay for court-appointed attorneys yet again.  Well, now, the Florida Bar News has published an article discussing how low the pay rates really are, and how it affects the criminal justice system overall.  To read the article, click here.   Although the article is very informative, it’s too bad it couldn’t have been published while the issue was pending in the Florida legislature.

Advising People of the Immigration or Deportation Consequences of Their Guilty Pleas: Will the Florida Supreme Court Accept Jurisdiction to Decide if Padilla v. Kentucky, 130 S.Ct. 1473 (2010), Applies Retroactively?

In 2010, the United States Supreme Court decided Padilla v. Kentucky, 130 S.Ct. 1473 (2010), wherein the Court held that Padilla’s criminal defense lawyer provided ineffective assistance of counsel by failing to advise Padilla that his plea to charges of drug distribution would subject him to automatic deportation under 8 U.S.C. section 1227(a)(2)(B)(i).  The Court further held that in order to render effective assistance of counsel, a criminal defense attorney must advise his or her client whether a plea carries a risk of deportation.  See Padilla, 130 S.Ct. at 1486.

The issues surrounding pleas and immigration consequences are not new to Florida’s trial or appellate courts.  In 2006, four years prior to Padilla, the Florida Supreme Court held that claims of ineffective assistance of counsel based on counsel’s failure to warn of the immigration consequences of a plea must be filed within 2 years of the date that the judgment and sentence (or order withholding adjudication of guilt) become final.  See State v. Green, 944 So. 2d 208, 217-218 (Fla. 2006).  Since Padilla, the issues surrounding immigration or deportation consequences of pleas have remained on the forefront, and one of the latest issues is the retroactivity of Padilla.   In April of 2011, the Third District Court of Appeal issued a decision in Hernandez v. State, 61 So. 3d 1144 (2011), wherein the Court certified the question of the retroactivity of Padilla to be of great public importance.  Although the State of Florida and Hernandez filed their jurisdictional briefs with the Florida Supreme Court in September of 2011, the Court has yet to issue an opinion.  At the end of 2011, the Fourth District Court of Appeal held that Padilla does not apply retroactively.  See Rodriguez v. State, No. 4D10-2016, 2011 WL 5964343 (Fla. 4th DCA Nov. 30, 2011).  Since the issue of retroactivity has yet to be decided, I suppose that Florida’s criminal defense bar, and criminal defendants alike, will have to continue to wait to see what path the Court will choose.  The docket in Hernandez v. State, No. SC11-1357, can be viewed here.

High Profile Cases-Some Tips for Trial and Appeal

In today’s media culture, almost any criminal case can become a high profile case.  All it seems to take is (1) the involvement of a relatively well known or notorious person ; (2) a sympathetic or outrageous crime; and (3) news coverage by the media.  If circumstances are right, even purely local cases can be picked up by the national media and become high profile.  (Anyone hear of the Casey Anthony trial??)  The purpose of this post is to make a quick note of some things that an attorney may want to consider prior, during, and after trial.

Investigation phase:  At some point, an attorney may learn that his or her client is the target of a criminal investigation.  While this may be more common in the Federal system, it may also occur in the State system where police are conducting a long-time criminal investigation, or a large grand jury investigation is being conducted at the direction of the Statewide Prosecutor.  Once an attorney is notified or learns that the investigation has targeted the client, an attorney may want to consult with the client about the possibility of approaching the relevant authorities to see if a deal can be worked out prior to indictment.  This kind of deal may entail cooperation in exchange for an indictment on a lesser offense, or perhaps the withholding of an indictment altogether.

Prior to and at the start of trial:  After the client gets charged with a crime, where the case involves co-defendants or multiple offenses, an attorney needs to consider a motion to sever pursuant to Fla. R. Crim. P. 3.152.  If the case has been the subject of pre-trial publicity, counsel may wish to consider moving to change venue pursuant to Fla. R. Crim. P. 3.240.  At the time of jury selection, counsel may wish use Rule 3.281 as a basis to request a list of all the prospective jurors, including their names and addresses and the juror questionnaires.  A search of the jurors’ names on Google may reveal valuable information about them, and such information could serve as a basis to exercise a peremptory strike or challenge for cause.  Where pre-trial publicity has been high or negative, counsel may wish to think about moving to sequester the jury pursuant to Fla. R. Crim. P. 3.370(a) to insulate them from publicity during the trial.  Motions to sequester and change venue are left to the discretion of the trial judge, so counsel should be sure to make a good record by filing a thorough written motion in compliance with the rule, and renewing it whenever necessary, prior to and during the trial.  The better record counsel can make of the court abusing its discretion, the better chances counsel may have of prevailing on any subsequent appeal.

Jury selection:   To state the obvious, jury selection is an extremely important time of the trial.  Attorneys may wish to come prepared with a list of the prospective jurors that was requested pursuant to Rule 3.281, and be ready to argue why certain potential jurors should be stricken for cause at the outset.  The more jurors that are successfully challenged for cause, the more peremptory strikes can saved for use later on.  Attorneys should remember to make as good a record as possible for appeal by stating objections on the record and the reasons for the objections.  Objections to the panel should be renewed at the time the panel is selected, and again prior to the time that the panel is sworn.  If objections are not made and renewed, an appellate court may find that the jury selection issues have not been preserved.  In really high profile cases, jury selection may take days or weeks.  In such cases, counsel should ask the court for additional challenges for cause and peremptory strikes.  Courts may grant such requests in their discretion.

Post verdict:  If the jury renders a guilty verdict, and if there is reason to believe that the verdict is subject to legal challenge, counsel may move to interview the jurors pursuant to Rule 3.575.

Post trial:  After trial, counsel may move for a new trial under Rules  3.580 and 3.600.  If the evidence sustains a conviction for a lesser offense, a court may, pursuant to Rule 3.620, enter a judgment for the lesser offense.

Bail pending appeal:  Where an attorney intends to appeal a conviction, the court may release the defendant pending appeal pursuant to Rule 3.691.


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