Office of Attorney General Pam Bondi
Criminal Law Alert
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Date issued: 05/21/2009
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
Certiorari Granted – May 18, 2009. Summary provided by SCOTUS.
Docket: 08-992
Title: Beard v. Kindler
Issue: Is a state procedural rule automatically “inadequate” under the adequate-state-grounds doctrine - and therefore unenforceable on federal habeas corpus review - because the state rule is discretionary rather than mandatory?
Docket: 08-9156
Title: Wood v. Allen
Issues: (1) Whether federal habeas relief should have been granted because the evidence shows that defense counsel’s failure to “pursue or present evidence of defendant’s severely impaired mental functioning was [not] a strategic decision.” (2) Whether 28 U.S.C. §2254(e)(1) ― which presumes state court factual findings to be correct and requires petitioners to overcome them by “clear and convincing evidence” ― applies when a petitioner challenges state court rulings based solely on the state court record. The Wood case tests the failure of an inexperienced defense lawyer to present in a capital sentencing proceeding evidence of the defendant’s severe mental impairment. The Court granted certiorari on two of the four questions presented in this capital case.
Florida Supreme Court
B.O.L.O. - - - B.O.L.O. - New Cases Review by Florida Supreme Court
Schlabach v. State, SC09-223. Certiorari Granted May 7, 2009.
Issue: Whether the trial court lacks jurisdiction to modify sentence in response to timely filed motion to mitigate where no hearing was scheduled and no action taken within sixty-day period following imposition of sentence. The 4th DCA certified direct conflict with Childers v. State, 972 So. 2d 307 (Fla. 2d DCA 2008). No oral argument.
First District Court of Appeal
Case remanded for new trial; admission of hearsay statements was to demonstrate bad character of appellant and constituted reversible error.
Dorbad v. State, 1D07-3741. Opinion filed May 11, 2009.
Dorbad, charged with the first-degree murder of Dawn Luciano, was convicted of second-degree murder after his second trial. Dorbad appealed arguing, the trial court “erred in denying his motion for judgment of acquittal based on insufficient evidence to overcome his claim of an accidental shooting.” He further alleged the trial court “abused its discretion by excluding the testimony of Dr. Greer regarding appellant’s calm demeanor on the night of the shooting,” and the trial court erred “in admitting hearsay testimony of several witnesses pursuant to the ‘state of mind’ exception to the hearsay rule.” As to issue one, the 1st DCA held that there was sufficient evidence to support the charge.
The record revealed that at both the first and second trial, the State “placed heavy emphasis on appellant’s ‘calm’ demeanor following a traumatic shooting,” while the defense “sought to introduce Dr. Greer’s testimony in an effort to characterize appellant’s ‘calm’ demeanor as one signifying stress.” Dr. Greer’s testimony, while proffered for the record, was excluded by the trial court. The trial court found that “(1) the testimony would cause confusion in the minds of the jury and (2) Dr. Greer had not witnessed the officers’ testimony at the time of trial nor had he examined the defendant; thus, his testimony lacked reliability.”
After reviewing § 90.704 and § 90.702, Florida Statutes (2006), which governs the use of and admissibility of expert testimony, the 1st DCA concluded that the “evidence considered by Dr. Greer was substantially similar to the evidence later admitted at trial,” thus, “Dr. Greer could testify that appellant’s calm demeanor was consistent with a person undergoing shock.” Further, “any confusion, if it exists, would not justify exclusion of this testimony.” The 1st DCA also concluded, “Dr. Greer’s expert testimony of demeanor in stressful situations would allow the jury to consider two opposing views of the evidence and assist the jury in determining what weight to place on evidence of appellant’s calm demeanor.” The testimony would have clearly aided “the jury’s understanding of the evidence.”
Regarding the hearsay evidence, the 1st DCA referred to § 90.803(3)(a), Florida Statutes (2006), which governs the state of mind exception to the hearsay rule, and to Stoll v. State, 762 So. 2d 870, 875 (Fla. 2000), which explained that “[t]he state of mind exception authorizes the use of hearsay to establish the declarant’s state of mind when his or her state of mind is material to the action.” However, “when applied to murder prosecutions, the state of mind exception does not typically authorize the use of a victim’s hearsay statements as establishing the victim’s state of mind because the victim’s state of mind is not generally a material issue in a case.” Unless, “the victim’s state of mind may be pertinent, such as where there is an issue of who instigated the confrontation.” See Peterka v. State, 640 So. 2d 59, 64 (Fla. 1994). There was no doubt, in the instant case, that Dorbad was the instigator of the confrontation. The 1st DCA held that “the admission of these statements was to demonstrate the bad character of appellant. Under these circumstances, the admission of the statements constituted reversible error.” The 1st DCA reversed and remanded for a new trial.
Assistant Attorney General Giselle Lylen represented the state.
[Dorbad v. State, 05/11/09]
Opinion:
Second District Court of Appeal
Digital audio recording of sentencing hearing is not a record subject to disclosure.
Media General Operations, Inc., v. State, et al., 2D08-1154. Opinion filed May 6, 2009.
Media General Corporation, publisher of the Tampa Tribune, sought a writ of mandamus “directed to the Chief Judge of the Sixth Judicial Circuit ordering him to release the audio recording of a sentencing hearing.” Media General contends the audio recording of Mr. Robles’ sentencing hearing “is an ‘electronic record’ of the hearing and therefore is a court record” and further argues, “no exemption protects it from public disclosure.”
The record reveals that the Sixth Judicial Circuit sometimes “uses a digital electronic court reporting system in some proceedings rather than a stenographic court reporter.” As such, the digital system will “capture all the miscellaneous sounds and conversations in the courtroom before, during, and after the hearing.” The 2nd DCA determined that “[b]y definition, the record of a court proceeding is comprised only of matters that are part of the proceedings, i.e., the official business of the court.” The record also revealed that the chief custodian of the record, “the Chief Judge of the Sixth Judicial Circuit,” elected to supply Media General “the record of the proceeding . . . in the form of a written transcript, something he has the right to do.” See, Fla. R. Jud. Admin. 2.535(g)(3), and 2.420(f)(2).
The 2nd DCA held the audio recording of the sentencing hearing “is not a court record subject to disclosure” and denied the petition for writ of mandamus.
Assistant Attorney General Richard Fishkin represented the state.
[Media General v. State, 05/06/09]
Opinion:
Third District Court of Appeal
Incarceration in Florida federal prison did not constitute an absence from the state for purposes of the statute of limitations.
State v. Suarez, 3D07-3342. Opinion filed May 13, 2009.
Suarez was charged by information with third-degree grand theft and burglary of an unoccupied dwelling and a warrant was issued for his arrest. When the warrant was issued, Suarez was in a Florida federal prison. Suarez, soon after release from the prison, was served and arrested. However, the statute of limitations for the charges filed on Suarez had expired. Suarez moved to dismiss the charges based on the expiration of the statute of limitations, the trial court granted the dismissal, and the State appealed.
The 3rd DCA noted that the issue, “which appears to be one of first impression, is whether incarceration in a federal prison located within the state constitutes absence from the state for purposes of the statute of limitations period.” Asserting that Suarez was not within the state’s jurisdiction, the State contended that the “statute of limitations was tolled because the defendant’s federal imprisonment constituted an absence from the state even though he was physically located within the state.”
The 3rd DCA noted that “[b]oth sections 775.15 and 812.035, Florida Statutes (2001), provide for tolling of the statutory time period during any time that the defendant is ‘continuously absent from the state or has no reasonable ascertainable place of abode or work within the state.’” The 3rd DCA concluded that the words “abode or work within the state” equates to geographic location. Therefore, “the statute simply requires that a defendant be physically located within the state so that he or she may be served with process.” The 3rd DCA affirmed the dismissal of the charges because “the State failed to serve process upon the defendant within a reasonable time as required under the statute of limitations.”
Assistant Attorney General Ansley Peacock represented the state.
[State v. Suarez, 05/13/09]
Opinion:
Fifth District Court of Appeal
Speedy trial violation with suggestions from the district court how this could have been avoided.
Mainwaring v. State, 5D08-3080. Opinion filed May 15, 2009.
The 5th DCA granted Mainwaring’s petition for writ of prohibition where the intention was to “secure a discharge of certain criminal charges against him because of a failure of the State to accord him a speedy trial.” It was noted that the 5th DCA had remanded this matter to the trial court for an evidentiary hearing on the motion for discharge in an attempt to find out if Mainwaring was unavailable. The trial court determined “the petitioner was unavailable for trial through his own fault simply because he was incarcerated in another county, and that other county declined to transport him to Orange County for trial.”
The record reveals that Mainwaring was charged with various crimes in Indian River County and Orange County and was arrested on warrants from each jurisdiction. While in the Indian River County jail “awaiting disposition of the crimes he committed in that county at all times material to our determination of this issue,” he filed, pro se, a demand for speedy trial in the circuit court for Orange County. Indian River County declined to honor the transport order for the scheduled hearing because Mainwaring was scheduled to appear for a hearing in court in Indian River County. Orange County struck the notice for demand holding that Mainwaring was unavailable. After waiting fifty days, Mainwaring filed a notice of expiration of speedy trial time, whereby another transport order was issued from Orange County circuit court and again Indian River declined to honor the transport order. Orange County struck the notice of expiration because it “deemed Mr. Mainwaring to be unavailable.” Mainwaring then filed his motion for discharge fifteen days later and “when he was not discharged, he sought prohibition in this court.”
After review of the trial courts findings after the evidentiary hearing, the 5th DCA concluded that case law does not support the trial court’s conclusion that Mainwaring was unavailable for trial through his own fault. The 5th DCA determined that the refusal to transport “was based more on confusion, miscommunication or administrative convenience than anything else.”
The 5th DCA determined that the trial court was never asked, “to order an extension of time periods provided under rule 3.191 for exceptional circumstances, as authorized by subdivision (l).” See State v. Dukes, 443 So. 2d 471, 473 (Fla. 5th DCA 1984), nor did the State “seek judicial intervention in Indian River County.” The 5th DCA classified this inaction “of particular importance” because no demand for speedy trial in Indian River County was ever filed by Mainwaring, “and thus there was no danger that the speedy trial time would elapse in that jurisdiction. Not finding any “justified” reason Mainwaring was never transported to Orange County, the 5th DCA stated that “[w]e do not believe that the failed communications between the two counties involved in this case trump the properly invoked speedy trial rights of the petitioner guaranteed by the sixth amendment to the United States Constitution.”
The 5th DCA suggested, “the lines of communication between these jurisdictions need to be fully examined in the near future in order to minimize the possibility of future speedy trial violations.” The 5th DCA granted the petition for writ of prohibition and remanded “the case for discharge of the criminal charges that are the subject of the present case.”
Note: Judge Griffin concurred and noted that “the record suggest that Mr. Mainwaring may have had a hand in Indian River County’s repeated refusal to send him to Orange County so he could be tried.”
Assistant Attorney General Ann Phillips represented the state.
[Mainwaring v. State, 05/15/09]
Opinion:
Order granting suppression reversed; defendant affirmatively invited the intrusion thereby eliminating any expectation of privacy.
State v. Halpin, 5D08-2196. Opinion filed May 15, 2009.
The county court suppressed the evidence in a “misdemeanor prosecution for alleged lewd conduct and certified the following question:
- Whether this Court’s decision in Ward v. State, 636 So. 2d 68 (Fla. 5th DCA 1994), compels the suppression of evidence resulting from a police officer’s observations of a defendant in a locked public restroom stall, when the defendant first makes non-verbal gestures inviting the officer to participate in lewd acts and the officer is able to observe the defendant through a crack in the stall without peering through the crack.
At the suppression hearing, the county court, after hearing the evidence and arguments, “concluded that it was compelled to suppress the evidence under our decision in Ward.” The county court “interpreted Ward to conclude that a locked public toilet is a place where an individual has an expectation of privacy under all circumstances, thereby precluding police intrusion, absent probable cause to arrest.”
Noting its belief that the county court “misinterpreted Ward,” the 5th DCA determined that the instant case is more like Moore v. State, 355 So. 2d 1219 (Fla. 1st DCA 1978). In Ward, the 5th DCA held that the “officer’s actions constituted an unlawful intrusion into private space in violation of the Fourth Amendment” because the officer stood close to a public bathroom stall and “peered through a crack into the stall where he saw the defendant masturbating.” In the instant case, like Moore, the officer “did not have to ‘peep’ to see into the stall through the crack.” Further, in the instant case, Halpin made various non-verbal invitations to the officer.
The 5th DCA determined:
- Ward is also distinguishable because, there, the defendant had not manifested any offer to commit a lewd act, as is the case here. “[T]he Fourth Amendment protects people, not places.” Katz v. United States, 389 U.S. 347, 351 (1967). An individual claiming the protection of the Fourth Amendment must exhibit an expectation of privacy, both subjective and one that society views as reasonable. Here, Appellee did not exhibit an expectation of privacy because he affirmatively invited the intrusion through his non-verbal invitations.”
The 5th DCA reversed the order granting Halpin’s suppression motion.
Assistant Attorney General Wesley Heidt represented the state.
[State v. Halpin, 05/15/09]
Opinion: