Office of Attorney General Pam Bondi
Criminal Law Alert
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Date issued: 04/21/2009
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
USSC Today as reported in SCOTUS.
Police may not search a vehicle “incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle.”
Arizona v. Gant, 07-542. April 21, 2009.
By a 5-4 vote, the Court dramatically narrowed the rule established in New York v. Belton, 453 U.S. 454 (1981), and held that police may not search a vehicle “incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle.” Instead, held the Court, Belton “authorizes police to search a vehicle incident to arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” In addition, the Court (adopting a proposal set forth by Justice Scalia in his concurring opinion in Thornton v. United States, 541 U.S. 615, 632 (2004)), held that police may search a vehicle incident to a lawful arrest if “it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.” http://www.supremecourtus.gov/opinions/08pdf/07-542.pdf.
Opinion:
The Federal Circuit’s harmless-error framework conflicts with §7261(b)(2)’s requirement that the Veterans Court take “due account of the rule of prejudicial error.” The Veterans Court lawfully found the notice errors harmless.
Shinseki v. Sanders, 07-1209. April 21, 2009.
By a 6-3 vote, the Court held that the Federal Circuit applied an improper “harmless-error” methodology when assessing whether the failure of the Department of Veterans Affairs to provide notice to benefits claimants, as required by the Veterans Claims Assistance Act of 2000, requires reversal of the denial of benefits. The Court concluded that the statute requires the Court of Appeals for Veterans Claims to apply the harmless-error “approach courts normally take in ordinary civil cases” ― in contrast to the “complex and rigid” approach developed by the Federal Circuit.
Opinion:
$2.8 million judgment was not a “blocked asset” at the time the Ninth Circuit issued its opinion in this case.
Ministry of Defense of Iran v. Elahi, 07-615. April 21, 2009.
Respondent obtained a $312 million default judgment against Iran based on his claim that Iran unlawfully participated in the assassination of his brother. At issue now is his effort to attach an asset belonging to Iran, namely, a $2.8 million judgment Iran obtained against a California company. The Court held that respondent could not attach the judgment. The Court unanimously held that, when the Ninth Circuit issued its decision in this case, the $2.8 million judgment was not a “blocked asset” ― which would have made it attachable under the Terrorism Risk Insurance Act of 2002. And by a 6-3 vote, the Court held that respondent could not attach the judgment for the additional reason that the judgment is “at issue” in a claim against the United States before the Iran-U.S. Claims Tribunal. Respondent, in return for partial compensation from the Government, had agreed not to attach “property that is at issue in claims against the United States before an international tribunal.”
Opinion:
Certiorari Granted – April 20, 2009.
Docket: 08-728
Title: Bloate v. U.S.
Issue: Whether time granted at the request of a defendant to prepare pretrial motions qualifies as “delay resulting from other proceedings concerning the defendant” and is thus excludable from the time within which trial must commence under the Speedy Trial Act of 1974, 18 U.S.C. 3161 et seq.
Docket: 08-769
Title: United States v. Stevens
Issue: Is 18 U.S.C. 48, on depictions of animal cruelty, facially invalid under the Free Speech Clause of the First Amendment?
Docket: 08-1065
Title: Pottawattamie County et al. v. McGhee et al.
Issue: Whether a prosecutor may be subjected to a civil trial and potential damages for a wrongful conviction and incarceration where the prosecutor allegedly violated a criminal defendant’s “substantive due process” rights by procuring false testimony during the criminal investigation, and then introduced that same testimony against the criminal defendant at trial.
Certiorari Denied – April 20, 2009.
Docket: 08-833
Title: Oliver v. Quarterman
The Justices declined to hear a new challenge to the constitutionality of a jury verdict in a death penalty case, when the jury consulted a Bible during deliberations to help decide on a sentence. One Texas case on that issue was denied review in October.
United States Court of Appeal
Eleventh Circuit
Eleventh Circuit
Strategic tactical decision to not present mental health evidence in penalty phase was not contrary to or an unreasonable application of Supreme Court precedent.
Kimbrough v. Secretary, DOC, et al., 08-11421. Decided April 13, 2009.
Kimbrough, death-row inmate, appealed the denial of his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. The 11th Circuit granted Kimbrough’s renewed application for a certificate of appealability on one issue. The issue is: “whether the Florida Supreme Court’s determination that Kimbrough did not receive ineffective assistance of counsel because his trial counsel failed to present any mental health evidence in the penalty phase of his trial was contrary to or an unreasonable application of Supreme Court precedent.”
Governed by the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), in order to show counsel’s performance was deficient, the defendant must establish that “counsel’s representation ‘fell below an objective standard of reasonableness.” Regarding ineffective assistance claims at the penalty phase of the trial, “we consider whether counsel reasonably investigated possible mitigating factors and made a reasonable effort to present mitigating evidence to the sentencing court.” Henyard v. McDonough, 459 F.3d 1217, 1242 (11th Cir. 2006).
The 11th Circuit found no error in the district court’s dismissal of Kimbrough’s habeas petition. At the evidentiary hearing, defense counsel Sims and Cashman, both recalled that they “specifically and deliberately” chose not to have the two mental health experts testify at the penalty phase. Their concern was that “the limited beneficial information they might have been able to present would have been outweighed by the risk of opening the door to the admission of more damaging information.” After a “thorough review,” the 11th Circuit stated, “we cannot say that it was contrary to or an unreasonable application of Supreme Court precedent for the Florida Supreme Court to conclude that Kimbrough’s trial counsel made a reasonable strategic decision when deciding not to present mental health evidence at the penalty phase of Kimbrough’s trial.”
Assistant Attorney General Scott Browne represented the state.
[Kimbrough v. Secretary, DOC, 04/13/09]
Opinion:
First District Court of Appeal
Another “manslaughter by act” error.
Washington v. State, 1D07-3110. Opinion filed April 13, 2009.
Washington appealed his conviction arguing the “trial court committed fundamental error by giving a jury instruction for manslaughter by act that required the state to prove that the defendant ‘intentionally caused the death’ of the victim.”
The 1st DCA reversed and remanded for a new trial after holding the trial court erred by instructing the jury for the lesser included offense of manslaughter by act. The 1st DCA referred to its recent decision in Montgomery where it held “that manslaughter by act requires only an intentional unlawful act, rather than an intent to kill, and that the standard jury instruction improperly imposed an additional element for the crime of manslaughter.” Montgomery v. State, 34 Fla. L. Weekly D360, D362 (Fla. 1st DCA Feb. 12, 2009)(question certified; conflict certified).
Assistant Attorney General Philip Edwards represented the state.
[Washington v. State, 04/13/09]
Opinion:
Second District Court of Appeal
Juvenile sentenced to moderate-risk program was error; any juvenile sentence, pursuant to section 985.557(2)(d)(3), must be commitment to a high-risk or maximum-risk juvenile facility.
State v. Allen, 2D08-2343. Opinion filed April 15, 2009.
The State appealed “the sentence imposed on sixteen-year-old George Allen, contending that it was an illegal sentence under the statutes applicable to juveniles charged by mandatory direct-file informations.” Allen charged, by mandatory direct-filed information in adult court, with armed robbery, pled no contest to the charge at the pretrial conference. Over the State’s objection, the trial court “withheld adjudication and sentenced Allen to the moderate-risk program with aftercare until his twenty-first birthday, thus imposing a period of supervision of four years.”
The 2nd DCA detailed, in the opinion, the statutes available for sentencing options “when a juvenile is charged by mandatory direct-file information.”
The 2nd DCA held the trial court improperly sentenced Allen to a moderate-risk juvenile program. “Once the trial court found that Allen did not qualify for sentencing under section 985.557(2)(d)(2)(a), the sentencing options available to it were adult sanctions, youthful offender sanctions, or commitment to a high-risk or maximum-risk juvenile facility.” The 2nd DCA affirmed the trial court’s finding that Allen did not have a prior adjudication for an offense involving a firearm and noted, “the rule of lenity supports the trial court’s ruling.”
The 2nd DCA reversed Allen’s sentence and remanded for further proceedings noting that the trial court could sentence Allen as an adult, youthful offender, or as a juvenile pursuant to sections 985.565(4)(a)(2)(a), (b), or (c). However, “any juvenile sentence must be commitment to a high-risk or maximum-risk juvenile facility.” Since the original plea was based on commitment to a moderate-risk program, “Allen must be given the option on remand of either agreeing to a legal sentence or withdrawing his plea.”
Assistant Attorney General Ronald Napolitano represented the state.
[State v. Allen, 04/15/09]
Opinion:
Collateral crimes evidence becomes feature of trial; case reversed and remanded for new trial.
Seavey v. State, 2D08-882. Opinion filed April 15, 2009.
Seavey appealed his conviction and sentence for lewd or lascivious molestation, arguing the trial court “abused its discretion in admitting collateral crimes evidence pursuant to section 90.404(2)(b), Florida Statutes (2004).
The record revealed the trial court, prior to trial, granted the State’s motion to admit collateral crimes evidence. “The court determined that the collateral crimes evidence was admissible because it was relevant and its probative value outweighed any danger of unfair prejudice.”
The 2nd DCA determined that even though the collateral crimes admitted “occurred sixteen and twenty-five years before the charged crime, the lapse of time between the crimes is not in itself determinative of whether the evidence is relevant.” Further, the trial court properly admitted the collateral crimes evidence because it “established that Seavey chose young boys who were vulnerable and that he earned their trust by pursuing their interest.” However, the trial court “improperly allowed the collateral crimes evidence to become a feature of the trial.” As one example, the 2nd DCA noted the “State spent seven out of twelve pages of its opening statement detailing the collateral crimes.” The 2nd DCA reversed and remanded for a new trial.
Assistant Attorney General Elba Martin represented the state.
[Seavey v. State, 04/15/09]
Opinion:
Fifth District Court of Appeal
Because the habitual violent felony offender sentence is an enhanced sentence, the consecutive sentence for grand theft was improper.
Williams v. State, 5D08-881. Opinion filed April 17, 2009.
Williams, sentenced for second degree murder while carrying or possessing a firearm, burglary of a dwelling while in possession of a firearm, and grand theft, appealed his judgment and sentence. Williams argued, “his sentence for grand theft should not have been imposed consecutively to the other sentences because all charges grew out of the same criminal episode, and because the habitual violent felony offender sentence had already been enhanced.” Williams pointed to Hale v. State 630 So. 2d 521 (Fla. 1993, cert. denied, 513 U.S. 909 (1994) and Daniels v. State, 595 So. 2d 952 (Fla. 1992), to support his argument.
While the State pointed to Reeves. V. State, 920 So. 2d 724 (Fla. 5th DCA 2006), approved, 957 So. 2d 625 (Fla.), cert. denied, 128 S.Ct. 527 (2007), the 5th DCA determined “that case does not authorize the sentence here.” “In Reeves the supreme court determined that because a prison release reoffender sentence is not an enhanced sentence, it could be required to be served consecutive to an unenhanced Criminal Punishment Code sentence arising out of the same criminal episode.”
The 5th DCA held, “[a] habitual violent felony offender sentence, however, is an enhanced sentence.” See § 775.084, Fla. Stat. (2008). Thus, under the reasoning of the supreme court in Hale, the consecutive sentence for the grand theft conviction was improper.” The 5th DCA remanded for resentencing regarding the “consecutive nature of the habitual violent felony offender sentence for grand theft.” The 5th DCA affirmed the remaining judgment and sentences.
Assistant Attorney General Rebecca McGuigan represented the state.
[Williams v. State, 04/17/09]
Opinion:
Trial court properly dismissed postconviction motion, without leave to amend, because motion was untimely.
English v. State, 5D09-419. Opinion filed April 17, 2009.
English appealed the dismissal of his 3.850 postconviction relief motion for the failure to include the required oath. The dismissal was without leave to amend. Spera v. State, 971 So. 2d 754, 755 (Fla. 2007).
The 5th DCA held that the trial court properly dismissed the motion without leave to amend because English did not file his motion until December 15, 2008. For the purposes of a rule 3.850 motion, his judgment and sentence were final on November 4, 2006, after entering a plea on October 5, 2006.
[English v. State, 04/17/09]
Opinion: