Office of Attorney General Pam Bondi
Criminal Law Alert
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Date issued: 05/01/2012
Editor: Carolyn Snurkowski
Clicking the icon following the number of each case cited below will link you directly to the cited opinion. In addition, full texts of recent slip opinions are available by clicking "VIEW" at the top of your screen, then "SLIP OPINIONS." AGOs are available in the separate AGO database.
United States Supreme Court
Wood v. Milyard, 10-9995. Decided April 24, 2012. Summary by Dan Schweitzer at NAAG.
By a 7-2 vote, the Court held that a federal court of appeals has the authority to raise sua sponte an AEDPA statute of limitations defense. The Court further held, however, that the Tenth Circuit abused its discretion when it did so in this case because the state ─ by telling the district court that it “will not challenge, but [is] not conceding, the timeliness of Wood’s habeas petition,” deliberately waived the statute of limitations defense.
Decision:
Certiorari Granted: April 30, 2012.
Chaidez v. United States, 11-802. Certiorari Granted April 30, 2011. Summary by Dan Schweitzer at NAAG
At issue is whether the Court’s holding in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their counsel fail to advise them that pleading guilty to an offense will subject them to deportation applies retroactively to persons whose convictions became final before Padilla was announced. The Third Circuit, applying Teague v. Lane, 489 U.S. 288 (1989), held that Padilla announced a new rule and therefore does not apply retroactively.
Florida Supreme Court
Several cases with Porter issues affirmed per Walton.
Several cases were affirmed on April 26, 2012, per Walton v. State, 77 So. 3d 639 (Fla. 2011). The Florida Supreme Court held in Walton: “(1) decision of the United States Supreme Court in Porter v. McCollum did not constitute fundamental change in constitutional law mandating retroactive application in post-conviction proceedings, and (2) movant was not entitled to hearing on his motion.” Copy of Walton Decision:
The cases affirmed per Walton are as follows:
•SC11-99 – Chadwick Willacy v. State of Florida
•SC11-359 – Mark Allen David v. State of Florida
•SC11-426 – Charles William Finney v. State of Florida
•SC11-428 – Paul Christopher Hildwin v. State of Florida
•SC11-472 – Harry Franklin Phillips v. State of Florida
•SC11-473 – Norman Parker, Jr. v. State of Florida
•SC11-474 – Victor Tony Jones v. State of Florida
•SC11-493 – William Lee Thompson v. State of Florida
•SC11-512 – William Reaves v. State of Florida
•SC11-616 – Matthew Marshall v. State of Florida
•SC11-694 – Michael Bernard Bell v. State of Florida
•SC11-725 – Richard Barry Randolph v. State of Florida
•SC11-762 – George Michael Hodges v. State of Florida
•SC11-843 – Patrick Charles Hannon v. State of Florida
•SC11-877 – Anthony John Ponticelli v. State of Florida
•SC11-878 – Ian Deco Lightbourne v. State of Florida
•SC11-946 – William T. Turner v. State of Florida
•SC11-947 – Norberto Pietri v. State of Florida
•SC11-973 – Antonio Lebaron Melton v. State of Florida
•SC11-1207 – Guillermo O. Arbelaez v. State of Florida
•SC11-1290 – Bruce Douglas Pace v. State of Florida
•SC11-1385 – Harry Jones v. State of Florida
•SC11-1400 – Steven Edward Stein v. State of Florida
•SC11-1631 – Robert Ira Peede v. State of Florida
•SC11-1660 – Daniel Jon Peterka v. State of Florida
The above decisions can be located on the Florida Supreme Court site: http://www.floridasupremecourt.org/decisions/opinions.shtml
First District Court of Appeal
Trial court erred adding 39 days to speedy trial period. “There is no provision in rule 3.191 to allow for the tolling of the speedy trial period for a specific number of days.”
Garrett v. State, 1D11-5357. Opinion filed April 27, 2012.
Garrett filed a writ of prohibition challenging “the denial of a motion for discharge based on a violation of the speedy trial rule.” Garrett argued “when the State fails to file charges within the 175-day period, the State is not entitled to the recapture window set forth in rule 3.191(p)(3).”
The record revealed that Garrett was arrested on May 18, 2011, for sexual assault. Garrett filed a notice of expiration of time for speedy trial and a motion for discharge pursuant to rule 3.191(h) and rule 3.191(n), Florida Rules of Criminal Procedure, on September 16, 2011. This was more than 175 days after his arrest. The State filed an “information charging petitioner with sexual battery and lewd or lascivious battery” later that same day. No charges had been filed against Garrett prior to September 16, 2011.
At the discharge hearing the State argued “the delay in filing the criminal charges was attributable to the defendant.” The State introduced e-mails from the defense requesting to “hold off on any filing decision until everything available has been reviewed.” The State agreed to wait for defense counsel to provide an updated medical report. The Assistant State Attorney (ASA) testified “the April 26, 2011, letter was the last communication she received from defense counsel; however, during cross-examination, she reviewed her file and discovered a May 4, 2011,” letter from defense counsel “with the updated medical report.” That was four months before the speedy trial period expired. The trial court “expressly found that the defendant had not waived his right to speedy trial, but nevertheless denied the motion for discharge finding that the failure to file charges during the speedy trial time period was ‘somewhat attributable’ to the defendant citing rule 3.191(j)(2).” The trial court found that the speedy trial period expired on September 9, 2011, however, it excluded the 39 days between the March 25, 2011, correspondence to the receipt of the May 4, 2011, correspondence with the medical report. The trial court “added those 39 days to the 175-day speedy trial period and ruled that the speedy trial period would expire on October 18, 2011.”
There was a good discussion of the speedy trial rule; when it runs, specific circumstances when the time periods may be adjusted, recapture periods, etc. The 1st DCA stated that “prohibition is the appropriate remedy . . . where an accused has been denied his right to a speedy trial and his motion for discharge has been denied.” Lowe v. Price, 437 So. 2d 142, 143 (Fla. 1983). The trial court has two options when presented with a motion for discharge; “either to grant or deny the motion.”
The 1st DCA found “it was error for the trial court to add 39 days to the speedy trial period.” “There is no provision in rule 3.191 to allow for the tolling of the speedy trial period for a specific number of days.” The ASA was asked to wait until the medical report was provided. She received the report on May 4, 2011, which was “four months before the speedy trial period ran on September 7, 2011.” The ASA could have filed at any time. The delay “was not attributable to the defendant.” The 1st DCA granted the petition and found “the petitioner is entitled to discharge.”
Assistant Attorney General Samuel Perrone represented the state.
[Garrett v. State, 04/27/12]
Opinion:
“Shelton is not binding on this court or any other state court.” Flagg v. State, 74 So. 3d 138, 140 (Fla. 1st DCA 2011)
McCain v. State, 1D10-5852. Opinion filed April 24, 2012.
McCain appealed his convictions for possession of pseudoephedrine with intent to manufacture a controlled substance (violation of section 893.149(1)(b), Florida Statutes (2010), and for unlawful manufacturing of methamphetamine (violation of section 893.13(1)(a)1., Florida Statutes (2010). Relying on Shelton v. Secretary, Department of Corrections, 802 F. Supp. 2d 1289 (M.D. Fla. 2011), McCain argued that “both statutes are facially unconstitutional because they require felony punishments for strict liability offenses.”
The 1st DCA affirmed McCain’s convictions.
- We have previously rejected the argument that section 893.13 creates a strict liability crime. See, e.g., Flagg v. State, 74 So. 3d 138, 141 (Fla. 1st DCA 2011); Williams v. State, 45 So. 3d 14, 16 (Fla. 1st DCA 2010); Harris v. State, 932 So. 2d 551, 552 (Fla. 1st DCA 2006). “Shelton is not binding on this court or any other state court,” Flagg at 140, and the appellant does not persuade us to recede from our settled precedent.
In addition, under section 893.149(1)(a), it is unlawful “to knowingly or intentionally” possess a chemical listed in section 893.033 with the intent to unlawfully manufacture a controlled substance. The plain statutory language thus rebuts Appellant’s argument for strict liability.
Assistant Attorney General Charmaine Millsaps represented the state.
[McCain v. State, 04/24/12]
Opinion:
Trial court erred dismissing claim that enhanced sentence under 10-20-Life statute was facially insufficient.
Townsend v. State, 1D11-6661. Opinion filed April 24, 2012.
Townsend was “convicted of attempted second-degree murder and the court imposed a life sentence with 25 years’ minimum mandatory pursuant to the 10-20-Life statute, section 775.087(2)(a)3, Florida Statutes.” Townsend, in his postconviction relief motion, argues “that before his sentence can be enhanced, the jury must make a finding that he discharged a firearm causing great bodily harm.” Townsend claims the jury did not make this express finding, therefore, his enhanced sentence is illegal. “The trial court dismissed the claim as facially insufficient and did not attach any portion of the record refuting the appellant’s claim.”
The 1st DCA, finding the claim to be facially sufficient, reversed and remanded with directions for the trial court “to either attach portions of the record which refute the appellant’s claim that the jury did not make a finding that he discharged a firearm causing great bodily harm, or to provide relief to the appellant by resentencing him without the sentence enhancement.”
Assistant Attorney General Dixie Daimwood represented the state.
[Townsend v. State, 04/24/12]
Opinion:
Second District Court of Appeal
Denial of postconviction relief affirmed; at the time defendant committed his crimes, Chicone was still good law.
Mack v. State, 2D11-5102. Opinion filed April 20, 2012.
Mack pled guilty, in 2001, to one count of possession of cocaine with intent to sell within one thousand feet of a church and one count of possession of cannabis in excess of twenty grams and was placed on probation. He violated his probation and was “sentenced to twenty-five years in prison in 2007.” Mack’s motion to withdraw his plea was dismissed and his federal habeas was denied. Mack filed a postconviction relief motion claiming “the statute proscribing his offenses was declared unconstitutional by a judge of the United States District Court for the Middle District of Florida in Shelton v. Secretary, Department of Corrections, 802 F. Supp. 2d 1289 (M.D. Fla. 2011).” The postconviction court denied relief “finding that it was not bound by the federal court decision and observing also that the appellate courts of this state have declared the drug possession statutes constitutional.”
The 2nd DCA affirms the postconviction court’s order denying relief to Mack. “However, our affirmance is based on the fact that Mack is not entitled to relief because the Shelton decision and the Florida appellate cases cited by the postconviction court address a version of the statute that was inapplicable to Mack.”
The 2nd DCA noted that Mack’s charges were governed by section 893.13, Florida Statutes (2001), the time he committed the offenses, and that Chicone v. State, 684 So. 2d 736 (Fla. 1996), was still good law and “mandated the trial court, upon appropriate request, to instruct the jury on the State’s burden to prove—as an element of possession—that the defendant knew the illicit nature of the substance possessed.”
- The possession statute was amended by the enactment of section 893.101, Florida Statutes, on May 13, 2002, as a legislative reaction to the Chicone case. Thenceforth, "guilty knowledge" as an element of possession was eliminated; instead, lack of knowledge of the illicit nature of the substance became an affirmative defense. § 893.101(2). The Shelton decision, which describes the "express elimination of mens rea as an element of a drug offense" as "draconian and unreasonable," 802 F. Supp. 2d at 1295, declared the amended version of section 893.13 (2002-2011) facially unconstitutional.
The 2nd DCA affirmed the denial of Mack’s 3.850 postconviction relief motion. “The version of the statute applicable to Mack’s crimes has not been held unconstitutional, and Mack has stated no other basis for postconviction relief.” Had Mack gone to trial he would have been entitled to the Chicone instruction on guilty knowledge.
[Mack v. State, 04/20/12]
Opinion:
Fourth District Court of Appeal
Trial court erred denying suppression motion; defendant was seized before deputy detected odor of marijuana.
Smith v. State, 4D10-4790. Opinion filed April 25, 2012.
Smith was charged by information with possession of cocaine and misdemeanor possession of cannabis. He filed a motion to suppress evidence “arguing that he was subject to an illegal search and seizure.” The trial court denied the motion, Smith entered a plea of no contest, he was sentenced, and then appealed the denial of his suppression motion.
At the suppression hearing the deputy testified that at 2:30 a.m., he “noticed an occupied SUV” that was legally parked in front of a vacant open field with all its lights off. The deputy testified “he became suspicious once he saw that the vehicle had no lights on.” The deputy stated he did not block the SUV but that he “pulled in front of the SUV and parked ‘almost catty corner’ to where the SUV was parked.” He “activated his overhead emergency lights” so that “he would not be hit by oncoming traffic.” He “illuminated his spotlight to see the occupant of the vehicle.” He also testified that this was a known drug and prostitution area but “acknowledged that he had not observed any illegal activity occurring in the vicinity of the SUV before he approached.” The deputy got out of his car, went to investigate whether the person in the car was hurt or needed assistance. The deputy “detected the odor of marijuana” as he approached the vehicle and asked Smith for his license. The deputy arrested Smith after he noticed “a partially smoked marijuana cigarette in the ashtray.” He conducted a search and found a small bag of marijuana and a bag of cocaine. The trial court denied the suppression motion finding that “when the officer parked his patrol car, appellant was not blocked in or prohibited from leaving. Furthermore, the trial court reasoned that the officer put on his emergency lights ‘so that oncoming traffic would be able to see’ him.” On appeal, Smith contends the trial court erred denying his suppression motion “claiming that the officer illegally seized him without any suspicion of criminal activity.” The state claimed the suppression motion was properly denied, “the officer’s initial approach of appellant was a consensual encounter and that the officer immediately had a basis to detain appellant when the officer smelled marijuana and saw a marijuana cigarette in plain view.”
The 4th DCA described the three levels of police-citizen encounters and when the citizen is free to leave. The 4th DCA also noted “the totality-of-the-circumstances analysis” that needs to be done to determine whether a consensual encounter has transformed into an investigatory stop. See G.M. v. State 19 So. 3d 973 (Fla. 2009) and State v. Goodwin, 36 So. 3d 925 (Fla. 4th DCA 2010).
At issue in this case is whether Smith “was seized before the officer approached his vehicle and smelled the marijuana.”
The 4th DCA reversed the denial of the suppression motion and remanded with directions for the trial court to vacate Smith’s convictions in this case. Smith was seized before the deputy detected the odor of marijuana and the seizure was not founded upon reasonable suspicion.
- Under the totality of the circumstances, where, as here, appellant was
legally parked on a residential street and did not give any indication that
he might be in need of police assistance, no reasonable person would
have felt free to drive away after an officer activated his emergency lights
and used a spotlight to illuminate the person’s parked vehicle. See G.M.,
19 So. 3d at 980 (“Moreover, it would be both dangerous and irresponsible for this Court to advise Florida citizens that they should feel free to simply ignore the officers, walk away, and refuse to interact with these officers under such circumstances.”). This is not a case where a reasonable person would have perceived the activation of emergency lights as a mere safety precaution and felt free to leave.
Finally, based on the testimony that the officer parked “catty corner”
to appellant’s vehicle and shined a spotlight on appellant, logic dictates
that, unlike the defendant in G.M., appellant was aware that the officer
activated his emergency lights. Therefore, appellant was seized for
Fourth Amendment purposes when the officer activated his emergency
lights and used a spotlight to illuminate appellant’s vehicle.
Assistant Attorney General Melynda Melear represented the state.
[Smith v. State, 04/25/12]
Opinion:
Fifth District Court of Appeal
Prescription defense is also available to any person authorized to hold prescriptions on prescription holder’s behalf.
Williams v. State, 5D10-4050. Opinion filed April 20, 2012.
Williams appealed her judgment and sentence for possession of clonazepam contending “the trial court erred in failing to instruct the jury on her ‘prescription defense.’”
Williams presented evidence that she was “in temporary possession of the clonazepam at the request of the prescription holder.” The prescription holder had memory problems that prevented her from taking her medications at the appropriate time. “Because the trial court was of the apparent belief that the prescription defense was only available to the prescription holder, the jury was not instructed on such a defense.”
The 5th DCA reversed and remanding for a new trial holding the trial court erred in failing to instruct the jury on the defendant’s prescription defense.
- . . . both this court and the First District Court of Appeal issued opinions concluding that the prescription defense extended to an individual authorized by the prescription holder to temporarily possess the medications on the holder’s behalf. See State v. Latona, 75 So. 3d 394, 395 (Fla. 5th DCA 2011) and McCoy v. State, 56 So. 3d 37, 39 (Fla. 1st DCA 2010).
Assistant Attorney General Bonnie Jean Parrish represented the state.
[Williams v. State, 04/20/12]
Opinion: