Tag Archives: unconstitutional

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

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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.

Another Win for the People of Florida, Another Loss for Florida Governor Rick Scott!

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Those of you who follow this blog know that Rick Scott’s policies have been a bit of a target . . .  Well, Rick Scott suffered another loss recently, in the form of a 37 page order issued by District Court Judge Ungaro.  In the Order, Judge Ungaro found that Scott’s policy of random drug testing of Florida’s state employees was unconstitutional.  To read the Order, click here.  To read a recent Miami Herald report, click here.

Happy reading!

Notice of Appeal is Filed in Death Penalty Case of Evans v. McNeil, No. 08-14402-CIV-JEM

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It’s Friday, so I thought I’d post something quick: on October 14, 2011, a notice of appeal was finally filed in Florida’s death penalty case of Evans v. Tucker (previously Evans v. McNeil), No. 08-14402-CIV-JEM.  Those of you who read my blog know that this is the case where the Federal Court granted, in part, a petition for habeas corpus based on the finding that Florida’s death penalty scheme is unconstitutional.  Now that the notice of appeal has finally been filed, the case is heading to the United States Court of Appeals for the Eleventh Circuit.  I’ll be sure to keep you posted.

Eleventh Circuit Rules that Sentence of Life Without Parole for People Who Commit Crime of Murder While a Juvenile Does not Violate Constitution

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In the case of Kenneth Loggins v. Thomas, No. 09-13267, 2011 WL 3903402 (11th Cir. Sept. 7, 2011), the Eleventh Circuit held that sentencing a person to life without parole for committing a homicide while under the age of 18 (a juvenile) does not violate the United States Constitution. While the 61 page opinion is lengthy, the Court dealt with some important issues.

As for the facts, a word of warning: the murder, which Loggins and several friends committed when he was 17, is quite brutal, and the Eleventh does not hold back in its description of the crime.  Loggins’ original sentence of death was reversed in light of the United States Supreme Court opinion of Roper v. Simmons, 543 U.S. 551 (2005) (holding that it is unconstitutional to execute criminals who were under the age of 18 when they committed their crimes).  After Loggins was resentenced to life without parole, he appealed that sentence, arguing that the sentence was unconstitutional.  Loggins lost all his appeals in the Alabama state courts, and eventually filed a petition for writ of habeas corpus under section 2254 in Federal Court, raising the same issue.  The District Court denied Loggins’ 2254 petition, and he appealed to the Eleventh Circuit.

The Court’s analysis of the core issue, the constitutionality of a sentence of life without parole for the crime of homicide committed while a juvenile, begins on page 35.  Although Loggins argued that there was a national and international consensus against such a sentence, the Court quickly rejected such arguments based on some interesting criminal sentencing statistics.  As a Florida criminal appeals attorney, I was saddened to read, on page 45, that Florida stands out as the State that has the highest number of people sentenced to life without parole for non-homicide crimes committed while the people were juveniles.  Out of the 123 inmates imprisoned nationwide, 77 are imprisoned in Florida.

In addition to the main issue of the constitutionality of the sentence of life without parole, the Loggins opinion is also worth reading because it contains a good discussion of other issues that arise in 2254 habeas proceedings, such as the deference owed to State court decisions, whether claims were adjudicated on the merits, what constitutes clearly established federal law, and retroactivity.

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

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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.

Miami Dade Judge Follows Shelton Order and Declares Florida Statute section 893.13 Unconstitutional; Dismisses Charges Against More Than 30 Defendants

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In an Order issued on August 17, 2011, Miami Dade Circuit Court Judge Milton Hirsch found that the Shelton order I discussed in my previous post is binding.  Judge Hirsch’s Order has the effect of dismissing drug charges against more than 30 people.  However, the dismissal is not automatic.  Judge Hirsch stayed the order for one week, granting the State of Florida time to file a notice of appeal.  (As would be expected, an article published by the Miami Herald indicates that the State will appeal the order.)

Not all Judges are ruling as Judge Hirsch.  Many are finding that the Shelton order is not binding, or is otherwise not decided correctly.   As noted in an article published in the Sun Sentinel, two other Miami Dade Judges refused to dismiss drug charges, unlike Judge Hirsch, as did another Judge in Pensacola.  No doubt, litigation over the Shelton ruling is just beginning.  Until this matter is decided by the Florida Supreme Court, and the United States Supreme Court, Florida criminal defense attorneys and their clients should expect a bumpy and unpredictable ride!

Federal Court Declares Florida Drug Statute, section 893.13, Unconstitutional–What now?

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In a recent Order in Shelton v. Secretary, Dept. of Corrections, No. 6:07–cv–839–Orl–35–KRS, 2011 WL 3236040, (M.D. Fla. July 27, 2011), the United States District Court for the Middle District of Florida granted a petition for writ of habeas corpus based upon a finding that the statute under which Shelton was convicted, Florida section 893.13, is unconstitutional.

In the Order, the Court examined how, in 2002, the Florida Legislature came to pass Florida’s Drug Abuse Prevention and Control Law, and observed that when the Legislature passed the amendment, Florida became the only State in the nation to eliminate the knowledge element (mens rea) of a drug offense.  The Court observed that even though strict liability criminal offenses have been found to pass constitutional muster in certain instances, no strict liability offense with penalties as harsh as those in Florida section 893.13 has ever been upheld under federal law.  (The Florida statute imposes penalties of 15 years, 30 years, and life imprisonment).

The issuance of this opinion has already unleashed a flurry of activity in criminal cases.  However, people convicted under section 893.13 and Florida criminal defense attorneys need to be aware of the fact that not everyone may entitled to automatic relief.  Why?  Here’s a few things to consider:

1.) Since the Order was issued in a Federal court habeas proceeding, the ruling may not be binding in all the State court cases that are pending right now.  There may be an appeal of this decision, which means that Shelton might effectively remain “up in the air” for some period of time.

2.) Undoubtedly, Florida criminal defense attorneys will be filings motions for relief based on Shelton in cases that are pending in the Florida State courts right now.  However, because the Shelton opinion is not binding upon them until it becomes the law of the land, as declared by the United States Supreme Court, each State court (that is, each Judge) may decide things differently.

3.) For those who were already convicted under section 893.13 before the Shelton opinion issued, the issue of whether Shelton will apply retroactively (backwards) arises.  New rules of law don’t always apply retroactively.

For a starting point on the issue of retroactivity of changes in the law, both substantive and procedural, you may wish to review the cases of Lindh v. Murphy, 521 U.S. 320 (1997), and Teague v. Lane, 489 U.S. 288 (1989).

Why is it so Important that the Evans v. McNeil Court Declared the Death Penalty Unconstitutional?

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Some people who have been reading this blog know that I have been waiting for the decision in Evans v. McNeil, 08-14402-CIV-JEM, to make its way to the Eleventh Circuit.  (For a quick reminder, see some of my other posts on the case here).  Why do I care so much?  A recent article in the Florida Bar News highlights the importance of the Evans case nicely.

First, as I mentioned in my July 6 post, Evans is the first time that a court has ever declared Florida’s death penalty scheme unconstitutional.  It’s not like the Florida courts have not had the opportunity to declare it unconstitutional before.  As noted in the article published in the Florida Bar News, Justices on the Florida Supreme Court have been openly expressing their dissatisfaction with the death penalty scheme, and calling it into question in light of Ring v. Arizona, for years.  Just read of some of the concurring and dissenting opinions authored by Justices Pariente or Wells in any one of the many death penalty cases decided since Ring.  But for some unknown reason, the Florida Supreme Court has failed to actually take the step of declaring the death penalty scheme unconstitutional.

And, making matters worse, is the Florida Legislature, refusing to act despite being given numerous chances to do so.  Why not just amend the death penalty statute to ensure compliance with Ring, especially after repeated requests by Justices on the Florida Supreme Court?  Why ignore the Justices’ recommendations for further study of death penalty issues?  Instead of keeping and using the only fact finding body it had in existence on the issue, the Commission on Capital Cases, the Florida Legislature recently opted to cease funding the Commission in budget negotiations.  Ironically, the first death warrant signed by Governor Rick Scott was signed on the last day of the Commission’s existence.

At present, we have three branches of government that are working in an entirely circuitous fashion, getting nowhere fast.  The Governor continues to sign death warrants, stating that Judge Martinez’s decision in Evans is not binding.  The Justices call on the Legislature to amend the death penalty statute, but refuse to declare it unconstitutional.  And then we have the Legislature, a group of people who refuse to do anything except keep their heads buried in the sand.  The article in the Florida Bar News states that Florida is an outlier state because it is now the only state that allows the death penalty to be imposed even though during the penalty phase, the jury may decide to impose the death penalty based on a mere majority (but not unanimous) vote.

I don’t know about you, but I don’t really think that being an outlier state on this issue is a good thing.  Since nobody in the State can seem to fix the problems with the death penalty, it’s about time that someone from outside the State stepped in to do it for us.

The Wait is Killing Me! Still No Word from Court in Florida Death Penalty Case

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Everyone knows that the wheels of justice turn slowly, but the wait in this case is killing me!  (No pun intended in this death penalty case).  It has been one month now since United States District Court Judge Jose Martinez ruled that Florida’s death penalty scheme is unconstitutional.  (See my previous post dated June 23, 2011).  After Judge Martinez issued the Order, the State of Florida, through the Office of the Attorney General, filed a motion asking the Court to reconsider the decision.  The Court has yet to rule on the motion.  It seems pretty unlikely that the Court will grant the State’s motion.   The Court will probably deny the State’s motion, paving the way for the State to appeal the decision to the Eleventh Circuit, as Attorney General Pamela Bondi said will be done in a report dated June 28.  Let’s just get the appeal moving already so that the case can make it’s way to the US Supreme Court!

State of Florida asks Court to Reconsider Death Penalty Ruling in Evans v. McNeil, 08-14402-CIV-JEM

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The Miami Herald reports in an article today that the State of Florida has asked the Court to reconsider its previous Order wherein the Court found Florida’s death penalty scheme unconstitutional.  The Court has not yet ruled on the motion.  It is unlikely that the Court would rule until the time for Evans to file a response has elapsed.  Under the Local Rules for the Southern District, parties generally have 14 days to respond to motions.  According to the article, Attorney General Pam Bondi stated that the State of Florida will take an appeal to the Eleventh Circuit if Judge Martinez does not alter his ruling.