Office of Attorney General Pam Bondi
Criminal Law Alert
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Date issued: 04/15/2009
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
“Petitions to Watch” features cases up for consideration at the Justices’ private conference on April 17. Posted by Kristina Moore, SCOTUS.
Docket: 08-757
Title: Parr v. United States
Issue: What is the standard of proof, under the “true threat” doctrine of [20] Virginia v. Black, for a conviction for threatening to use a weapon of mass destruction against a federal government building, and what testimonial evidence is admissible to establish an intent to threaten?
Docket: 08-833
Title: Oliver v. Quarterman
Issue: Does juror consultation of the Bible during sentencing deliberations deprive a defendant of Sixth Amendment rights and what standard of proof should apply in evaluating the possible prejudice to the defendant?
Cases involving lawyers from Akin Gump or Howe & Russell (listed without regard to likelihood of being granted):
Docket: 08-849
Title: Kight v. Turner
Issue: When a federal district court dismisses state law claims under 28 U.S.C. § 1367(c) and the state limitations period has expired, is the time period for refiling such claims in state court limited to 30 days?
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.
United States Court of Appeal
Eleventh Circuit
Eleventh Circuit
Trial court did not err; detective’s statement was properly admitted to show what was said, not that it was true.
United States v. Jiminez, 08-14192. Decided April 7, 2009.
Jiminez, convicted of “various charges concerning the manufacture and distribution of marijuana plants,” appealed his convictions arguing, “the evidence was insufficient, the district court improperly admitted evidence in violation of the Sixth Amendment Confrontation Clause, and the court abused its discretion in admitting irrelevant and prejudicial evidence.”
Jiminez, who was originally indicted with four co-defendants, including his brother Jisklif Jiminez (Jisklif), contended “‘that close association with a co-conspirator or mere presence’ at the scene of the illegal activity, standing alone, is insufficient to support a conspiracy conviction.” United States v. Lyons, 53 F.3d 1198, 1201 (11th Cir. 1995)(collecting cases). The 11th Circuit, however, determined that “this is not a mere presence case.” The record established that Jiminez was living in the Lake Lowery Road house, owned by his brother Jisklif, for several months. This home was “a sophisticated marijuana grow house operated by his brother; anyone in or near the house could smell the odor of marijuana; cut marijuana and the implements of a manufacturing and distribution operation such as harvesting tools,. . . were located in the living room and kitchen of the house.” The 11th Circuit found “the presence of the large quantities of marijuana plants and packaged marijuana ready for distribution . . . along with the other evidence is more than sufficient to support Jiminez’s convictions for possessing with intent to manufacture at least 100 marijuana plants and possessing with the intent to distribute at least 50 kilograms of marijuana.”
Jiminez also argued “the trial court improperly allowed Detective Wharton to testify about Jisklif’s statement to Wharton that the defendant Jiminez was a participant in the marijuana grow operation, in violation of the Sixth Amendment Confrontation Clause.”
Detective Wharton testified that at the time of the search, Jiminez, when asked on several occasions, denied having any knowledge of marijuana being in the house. Jisklif, when questioned by the detective, said, “Jiminez did, in fact, assist him with the marijuana grow operation.” The detective again questioned Jiminez and he changed his story and admitted that he helped his brother “with tending and cultivating the marijuana.” At trial, Jiminez denied “confessing to participating in the marijuana grow operation.” The 11th Circuit noted, “at trial, Jiminez did not object to the testimony based on the Confrontation Clause, instead relying only on hearsay grounds; nor did Jiminez ask the district court to give a limiting instruction of any kind.” Therefore, the 11th Circuit’s review on the Sixth Amendment claim is only for error. The 11th Circuit held that the detective’s testimony about what Jisklif told him “was not admitted in violation of the Confrontation Clause. It was not hearsay; it was not admitted to prove the truth of the matter asserted. See Fed. R. Evid. 801(c).” The detective’s statement was only admitted “to show what was said, not that it was true.”
The 11th Circuit also found that the evidence regarding the Champagne Road house was relevant to the conspiracy and that the “sophisticated marijuana grow operations in both houses were strikingly similar.” The 11th Circuit concluded that the evidence was “sufficient to establish that the Champagne Road house was involved with the grow operations at the Lake Lowery Road house, and thus permit the admissibility of the evidence.” The 11th Circuit affirmed the convictions.
[United States v. Jiminez, 04/07/09]
Opinion:
Second District Court of Appeal
Trial court erred striking pro se motion to withdraw plea as a nullity; request for Nelson hearing was an unequivocal request to discharge counsel.
Moreland v. State, 2D07-5214. Opinion filed April 8, 2009.
Moreland challenged the trial court’s order striking his pro se motion to withdraw plea after sentencing, filed pursuant to Florida Rule of Criminal Procedure 3.170(l), where he alleged, “his plea was involuntarily entered because he was provided ineffective assistance of counsel.” Moreland argued his counsel was ineffective, “that previously-filed motions to discharge counsel had never been ruled on, and that a Nelson hearing had never been conducted.” Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973). Because Moreland was represented by counsel at the time he filed his motion, the trial court struck the motion as a nullity.
The record reflects that Moreland’s motion included the following language: “Wherefore, the defendant humbly prays that this Court will grant this Motion and allow the defendant’s plea to be withdrawn. The defendant also humbly prays that upon withdrawing his plea, this Court will grant to the defendant a Nelson/Faretta hearing.” Faretta v. California, 422 U.S. 806 (1975).
The 2nd DCA noted that “[t]he trial court is correct that a pro se motion to withdraw plea is indeed a nullity if at the time it is filed the defendant is represented by counsel and the motion does not include an unequivocal request to discharge counsel.” In this instance, the 2nd DCA concluded, “Moreland’s request for a Nelson hearing amounts to an unequivocal request to discharge his counsel.” Thus, the 2nd DCA reversed the court’s order striking Moreland’s motion as a nullity and remanded for the court to address the merits of the motion.
Assistant Attorney General Ha Thu Dao represented the state.
[Moreland v. State, 04/08/09]
Opinion:
Third District Court of Appeal
Order suppressing evidence reversed; officer did not have probable cause to stop defendant, reach into his pocket and seize the contents.
Mathis v. State, 3D07-1214. Opinion filed April 8, 2009.
Mathis appealed the denial of his motion to suppress cocaine found on his person pursuant to an illegal search.
At the suppression hearing, the officer testified he received a tip, from a known confidential informant (CI), regarding “a man standing on a specific street corner selling narcotics.” The tipster provided the officer with a description of the man, the clothing he was wearing, and told the officer the narcotics were inside the man’s left front pocket. The officer further described the tip, on cross-examination, as “a call of an alleged hand-to-hand transaction.” The officer went to the location, stopped the man (Mathis), reached into his left front pocket, “and retrieved a sandwich bag with sixteen suspected rocks of crack cocaine.” The trial court, based on State v. Butler, 655 So. 2d 1123 (Fla. 1995), determined the officer had probable cause to stop Mathis and a conduct a search.
The 3rd DCA determined that while the instant case is similar to Butler, in that the informant was reliable and credible, “[t]he critical difference is that the informant here did not describe the type of drugs sold or the method of delivery.” The 3rd DCA noted the instant case was “more analogous to Chaney v. State, 956 So. 2d 535 (Fla. 4th DCA 2007), where the court held that the evidence should have been suppressed.” The Chaney court determined that “[o]bservations by an untrained layperson of multiple hand-to-hand transactions, standing alone, do not necessarily provide sufficient information for detention or arrest by a police officer.” Id. At 538. The record in the instant case, like Chaney, is “devoid of any testimony that the location described by the informant had any prior history of drug transactions or arrests or that the police officer had any prior knowledge of the defendant’s involvement in drug dealing.” The 3rd DCA further noted that the instant case was “even weaker than Chaney in that the informant only described one hand-to-hand transaction.”
The 3rd DCA concluded that the CI’s “report of observing a hand-to-hand transaction, standing alone, was insufficient under the totality of the circumstances to provide the officer with probable cause to search Mathis.” Thus, the State failed to prove the officer had probable cause to stop Mathis, reach into his pocket and seize its contents. The 3rd DCA reversed the order denying suppression of the evidence and remanded the case.
Assistant Attorney General Timothy Thomas represented the state.
[Mathis v. State, 04/08/09]
Opinion:
Fourth District Court of Appeal
Trial court did not err; jury properly instructed on resisting an officer with violence.
Carter v. State, 4D07-4496. Opinion filed April 1, 2009.
Carter, adjudicated guilty of fleeing and eluding (Count I), resisting an officer with violence (Count II), and battery on a law enforcement officer (Count IV), appealed arguing the trial court erred in allowing a jury instruction “that relieved the state from proving an element of the crime charged.”
The record reflects that while reviewing the proposed jury instructions, defense counsel objected to an instruction for resisting a law enforcement officer with violence, which stated, “an arrest constitutes lawful execution of a legal duty.” Defense argued the “instruction relieved the state from having to prove one of the elements of the crime charged.” The trial court overruled the objection, and on appeal, Carter argues this constituted reversible error.
Relying on Tillman v. State, 934 So. 2d 1263, 1270 (Fla. 2006), the 4th DCA noted that “the Tillman Court also reiterated that Florida Courts consistently hold that in arrest scenarios, section 776.051 applies to relieve the state of the burden of proving that the arrest was lawful.” In the instant case, Carter, after a high-speed chase and running a red light, exited his vehicle and ran through a residential area. When he tried to climb over a chain-link fence, the officer in pursuit, grabbed him and Carter elbowed the officer while the officer was trying to pull Carter off the fence. As a result, Carter was charged with resisting an officer with violence. Thus, the 4th DCA held that “[u]nder Tillman, the officers in the present case were effecting an actual arrest. Accordingly, the state was not required to prove the lawful execution of a legal duty by the officer, and the trial court did not err in instructing the jury otherwise.” The 4th DCA affirmed the trial court’s decision.
Assistant Attorney General Laura Zibura represented the state.
[Carter v. State, 04/01/09]
Opinion: