Office of Attorney General Pam Bondi
Criminal Law Alert
__________________________________________________________________
Date issued: 06/13/2012
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
Parker v. Matthews, 11-845. Decided June 11, 2012. Summary by Dan Schweitzer at NAAG.
Through a unanimous per curiam opinion, the Court summarily reversed a Sixth Circuit decision that had granted habeas relief to respondent. Stating that the Sixth Circuit’s decision “is a textbook example of what [AEDPA] proscribes,” the Court held that the Sixth Circuit erred when it granted habeas relief on the grounds that the Kentucky Supreme Court improperly shifted to respondent the burden of proving extreme emotional disturbance, the Commonwealth had failed to prove the absence of extreme emotional disturbance beyond a reasonable doubt, and certain remarks in the prosecutor’s closing argument constituted a denial of due process.
Summary Decision:
Howes v. Walker - Petition GRANTED. Judgment VACATED and case REMANDED for further consideration in light of Parker v. Matthews, 567 U. S. ___ (2012).
Docket: 11-1011
Issue(s): (1) Whether 28 U.S.C. § 2254(d)(2)’s invitation to decide the reasonableness of a state-court factual determination fits with 28 U.S.C. § 2254(e)(1)’s command that an underlying state-court fact determination must be presumed correct; (2) whether the Sixth Circuit violated Section 2254(d)(1) of the Antiterrorism and Effective Death Penalty Act (AEDPA) by granting habeas relief on a purportedly unreasonable application of state law; and (3) whether the Sixth Circuit violated AEDPA § 2254(d)(1) by asserting its own prejudice standard – that a defendant “must only show that he had a substantial defense” – rather than this Court’s clearly established law as set forth in Strickland v. Washington, that prejudice requires a showing that, but for counsel’s error, there is a reasonable probability of a different outcome.
Reichle v. Howards, 11-262. Decided June 4, 2012. Summary by Dan Schweitzer at NAAG.
The Court unanimously held that two federal law enforcement agents are entitled to qualified immunity from a §1983 action alleging they arrested respondent in retaliation for his political speech, where the agents had probable cause to arrest respondent for committing a crime. In Hartman v. Moore, 547 U.S. 250 (2006), the Court held that probable cause to arrest defeats a First Amendment claim of retaliatory prosecution. In this case, the Court declined to decide whether a similar rule applies to a First Amendment claim of retaliatory arrest. Rather, the Court held that Hartman left the law sufficiently uncertain that it was not clearly established that an arrest supported by probable cause could still violate the First Amendment. (Petitioners are Secret Service Agents who arrested respondent after he approached Vice-President Dick Cheney in a shopping mall, expressed his disapproval of the Bush Administration’s Iraq war policy, touched the Vice-President on the shoulder, and then lied about that to the agents.)
Decision:
Certiorari Granted: Summaries by Dan Schweitzer at NAAG.
Evans v. Michigan - Certiorari Granted June 11, 2012.
Docket: 11-1327.
Issue(s): The question presented is: “Does the Double Jeopardy Clause bar retrial after the trial judge erroneously holds a particular fact to be an element of the offense and then grants a midtrial directed verdict of acquittal because the prosecution failed to prove that fact?” In this case, the trial court granted a directed verdict to a defendant charged with “burning other real property” on the ground that the prosecution failed to prove that the building in question was not a dwelling. The Michigan appellate courts held that the building not being a dwelling was not an element of “burning other real property,” and permitted the state to retry the defendant for that offense.
Bailey v. United States - Certiorari Granted June 4, 2012.
Docket: 11-770
Issue(s): The question presented is: “Whether, pursuant to Michigan v. Summers, 452 U.S. 692 (1981), police officers may detain an individual incident to the execution of a search warrant when the individual has left the immediate vicinity of the premises before the warrant is executed.”
Certiorari Denied:
White v. Rice – Certiorari Denied June 11, 2012.
Docket: 11-1262
Issue(s): (1) Whether, in federal habeas review, a state court’s selection of one reasonable reading of the record over another can constitute an “unreasonable determination of the facts” under 28 U.S.C. § 2254(d)(2); and (2) whether 28 U.S.C. § 2254(e)(1)’s command that a habeas petitioner must overcome the presumption of correctness of a state factual determination with clear and convincing evidence fits with 28 U.S.C. § 2254(d)(2)’s bar of federal habeas relief on a state court merits adjudication unless the decision was “based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.”
“Petitions to Watch.” Summary by Matthew Bush @ SCOTUS.
The following case is up for consideration at the Justices’ private conference on June 14, 2012.
Martel v. Tuite
Docket: 11-1094
Issue(s): Whether a federal court may grant habeas corpus relief to a state prisoner without determining that the state court’s “harmless beyond a reasonable doubt” ruling was objectively unreasonable.
Florida Supreme Court
District court erred; misapplied precedent in affirming trial court’s summary denial of an evidentiary hearing.
Nordelo v. State, SC11-23. Opinion filed June 7, 2012.
The Court had for review the 3rd DCA’s decision in “Nordelo v. State, 47 So. 3d 854 (Fla. 3d DCA 2010), on the ground that it misapplies our precedent concerning summary denial of an evidentiary hearing in postconviction proceedings under Florida Rule of Criminal Procedure 3.850.” Nordelo alleged (1) a new trial was required “based on newly discovered evidence that he was not involved in the crime,” and (2) “that the prosecutor knowingly presented false or misleading evidence that Nordelo was driving a white car when he was arrested the day after the robbery although the prosecutor knew at the time that the white car seen during the robbery and the white car Nordelo was driving were not the same car.”
Nordelo presented a sworn affidavit from co-defendant Angel Lopez that stated Nordelo was not present at the time of the robbery and was not involved in the robbery. The affidavit also stated that Lopez did not come forward sooner because “he was afraid the State would take away its plea offer.” The postconviction court held a hearing to determine if an evidentiary hearing was necessary and found one was not necessary. The circuit court issued an order “summarily denying postconviction relief, concluding that the evidence was not newly discovered in that it could have been obtained earlier by due diligence and that the claim of prosecutorial misconduct was barred as successive.” The clerk was instructed to attach the necessary record excerpts, however, no records were attached to the order. The 3rd DCA agreed with the findings of the postconviction court and the majority held “the motion was ‘legally insufficient’ and affirmed the denial of relief.” Judge Cope dissented concluding that “the motion was in fact sufficient to require an evidentiary hearing, and opined that where the new evidence suggests that the defendant is actually innocent, the court should err on the side of granting a hearing.”
The Court noted that “[t]he order, on its face, did not hold that the motion was legally insufficient” and there were no record attachments to the order. “We have repeatedly held that where no evidentiary hearing is held below, [the appellate court] must accept the defendant’s factual allegations to the extent they are not refuted by the record.” Peede v. State, 748 So. 2d 253, 257 (Fla. 1999) (emphasis added). The Court concluded that the 3rd DCA “misapplied this precedent when it failed to accept the factual allegations of the motion, including the affidavit, in determining if the motion was legally sufficient.” “In spite of the fact that the record was not before either court, both courts proceeded to make factual determinations as a basis for summary denial of the motion.”
The Court quashed the decision below, remanded for an evidentiary hearing “on the newly discovered evidence claim involving only the affidavit of the codefendant Angel Lopez.” The Court concluded “the factual allegations in the Lopez affidavit that exculpate Nordelo must be tried and tested in an evidentiary hearing where they are subject to credibility determinations.”
Bureau Chief Richard Polin and Assistant Attorney General Nicholas Merlin represented the state.
[Nordelo v. State, 06/07/12]
Opinion:
Jurisdiction improvidently granted; jurisdiction discharged and review of proceeding dismissed.
Flores v. State, SC10-2198. Opinion filed June 7, 2012.
- We initially accepted jurisdiction to review the decision of the Third District Court of Appeal in Flores v. State, 46 So. 3d 102 (Fla. 3d DCA 2010), based on express and direct conflict. See art. V, § 3(b)(3), Fla. Const. Upon further consideration, we have determined that jurisdiction was improvidently granted. Accordingly, we hereby discharge jurisdiction and dismiss this review proceeding.
Bureau Chief Richard Polin and Assistant Attorney General Lunar Alvey represented the state.
[Flores v. State, 06/07/12]
Opinion:
Second District Court of Appeal
Postconviction court erred summarily denying motion for DNA testing; defendant presented facially sufficient claim.
Dubose v. State, 2D11-4121. Opinion filed June 8, 2012.
Dubose, convicted and sentenced for first-degree murder (life imprisonment) and attempted robbery (consecutive five-year term), appealed “the summary denial of his motion for DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853.”
The 2nd DCA discussed the standards required when raising a facially sufficient 3.853 motion for DNA testing, including how “subsections (3) and (4) has been interpreted to mean that DNA testing procedures should be allowed if the results would create a ‘reasonable probability that the defendant would have been acquitted if the DNA evidence had been admitted at trial.’" Knighten v. State, 829 So. 2d 249, 252 (Fla. 2d DCA 2002).
“. . . despite the postconviction court’s findings, neither its order nor the attachments thereto conclusively refute Dubose's claim that the items at issue would
contain the DNA of the assailant or that this DNA would result in Dubose's acquittal.”
The 2nd DCA found that Dubose raised a facially sufficient claim for postconviction DNA testing and reversed and remanded for “an evidentiary hearing pursuant to rule 3.853(c).”
- . . . rule 3.853 is not to be construed in a manner that would bar testing based on the notion that it might substitute a postconviction court's judgment for that of the jury. On the contrary, it offers a chance to ensure the validity of the jury's verdict in certain unique situations. Dubose has shown that his is that type of situation; based on the nature of the crime, inconsistencies between testimony, and the questionable credibility of the witnesses, identification is indeed a genuinely disputed fact, and there is a reasonable probability that DNA evidence would have acquitted him.
[Dubose v. State, 06/08/12]
Opinion:
More than 12 years after judgment of sentence, trial court has jurisdiction to designate defendant as sexual predator.
Almond v. State, 2D11-927. Opinion filed June 1, 2012.
Almond appealed the trial court’s order designating him as a sexual predator arguing “the State should be barred by a statute of limitations or perhaps by laches because it waited so long to file this motion. Almond was on probation when the trial court’s order was entered in January 2011. Twelve years earlier, at sentencing, “the court failed to enter such an order.” The State filed its motion to designate him as a sexual predator in July 2011, more than two years after his release from prison.
The 2nd DCA stated that “[t]here is no question that Mr. Almond's conviction for sexual battery, a life felony, qualified him to be designated as a sexual predator. See § 775.21(4)(c)(1)(a), Fla. Stat. (1997). There is also no question that the trial court did not enter the order designating Mr. Almond as a sexual predator at the time of sentencing.”
The 2nd DCA stated that “[t]he Florida Sexual Predators Act declares that an offender such as Mr. Almond ‘is a sexual predator,’ and the sentencing court must make a written finding at the time of sentencing that the offender is a sexual predator. § 775.21(5)(a)(2), Fla. Stat. (2010).” There is also a provision that “provides a procedure to address overlooked designations.” See 775.21(5)(c), Fla. Stat. (2010). As a matter of law, Almond is a sexual predator. “The official ‘designation’ merely provides Mr. Almond with notice and an opportunity to be heard before the requirements of registration become effective as to him.” Almond was still on probation. “The trial court continued to have jurisdiction to address the conditions of probation as necessary and to enter an order such as this sexual predator designation.”
The 2nd DCA affirmed the decision below.
- We simply hold that in a case like Mr. Almond's, in which the criminal court still has jurisdiction over a defendant whose criminal record mandates the court to classify him as a sexual predator, the criminal court may designate the defendant as a sexual predator even though the designation was overlooked at sentencing many years earlier.
Assistant Attorney General Richard Fishkin represented the state.
[Almond v. State, 06/01/12]
Opinion:
Third District Court of Appeal
Reversed and remanded for new trial; fundamental errors in jury instructions.
Davis v. State, 3D10-1629. Opinion filed June 6, 2012.
Davis, charged and convicted with attempted premeditated murder, appealed his conviction.
The 3rd DCA reversed and remanded for a new trial “because of two fundamental errors in the jury instructions.” They are as follows:
- 1. The court omitted entirely any definition of “excusable
homicide.” See State v. Lucas, 645 So. 2d 425 (Fla. 1994);
Rojas v. State, 552 So. 2d 914 (Fla. 1989); Richardson v. State,
818 So. 2d 679 (Fla. 3d DCA 2002).
2. The charge on attempted voluntary manslaughter as a lesser
included offense required an intent to kill, which, as we have
held in Coiscou v. State, 43 So. 3d 123 (Fla. 3d DCA 2010),
and Bass v. State, 45 So. 3d 970 (Fla. 3d DCA 2010), is per se
reversible error. On this point, we certify conflict with
Williams v. State, 40 So. 3d 72 (Fla. 4th DCA 2010), review
granted, 64 So. 3d 1262 (Fla. 2011).
Assistant Attorney General Lunar Claire Alvey represented the state.
[Davis v. State, 06/06/12]
Opinion:
Fourth District Court of Appeal
Trial court erred; failed to instruct jury on defendants theory of defense.
Funchess v. State, 4D10-4932. Opinion filed June 6, 2012.
Funchess, convicted for petit theft, appealed arguing the trial court erred in “(1) failing to instruct the jury on his theory of defense; (2) allowing photographs into evidence that were not disclosed in discovery and placing the burden on the defense to show actual prejudice; and (3) not allowing impeachment of a witness with his prior inconsistent statement.”
Funchess testified at trial that he makes his living “hauling debris and salvaging scrap.” He saw a dumpster “filled to the brim with aluminum and concrete” behind a closed restaurant that was being renovated and asked the Hispanic man standing next to the dumpster “if he could haul off the scrap.” The man told him “he could take anything in the dumpster and anything lying against the wall.” Funchess came back the next morning and filled his truck with the scrap aluminum. The owner of the property, James Waddell, came by and asked Funchess “what he was doing with his scrap?” Funchess told Waddell about his conversation with the Hispanic man and Waddell told Funchess that “he didn’t have any Hispanic workers.” Funchess testified that Waddell asked him how he was going to pay for everything and Funchess said he told Waddell “that he had no money and that this was just a misunderstanding.” Officers arrived at the scene and spoke with both parties. Waddell said Funchess didn’t have permission to take his scrap and Funchess told the officers why he thought he did have permission. Pictures were taken of the scene; the officers arrested Funchess; and he was charged with grand theft.
During cross examination Waddell testified that Funchess “offered to pay for the scrap after he was arrested.” Defense counsel also asked Waddell if “he had ever given an inconsistent statement.” The state objected and defense counsel “informed the trial court that he had Waddell’s prior written statement, in which he said that the defendant offered to buy the scrap before he was arrested.” The trial court determined the statement was inconsistent, “but it sustained the state’s objecting, finding that it was wholly irrelevant.” Defense counsel, during the charge conference, requested “a special jury instruction on his theory of defense that he had apparent authority or permission to remove the property in question.” The Court declined to give the requested instruction, “reasoning that his theory of defense was adequately covered by the standard theft instruction.”
The 4th DCA noted that “[g]enerally, [a] criminal defendant is entitled to have the jury instructed on the law applicable to his or her theory of defense where there is any evidence to support it, no matter how weak or flimsy.” Quick v. State, 46 So. 3d 1159, 1160 (Fla. 4th DCA 2010) (quoting Gregory v. State, 937 So. 2d 180, 182 (Fla. 4th DCA 2006)). The 4th DCA also discussed the three elements the defendant must satisfy to be entitled to the special jury instruction.
The 4th DCA reversed and remanded for a new trial finding the trial court failed to instruct the jury on defendants theory of defense; his “good faith belief in his right to possession of the property.” “Moreover, because this was the defendant’s sole defense at trial, we cannot say the error was harmless.”
- On retrial, if Waddell again testifies that the defendant offered to pay for the materials only after police had already taken him into custody, the trial court should allow the defense to impeach Waddell with his prior inconsistent statement that the defendant made the offer before the police arrived.
Assistant Attorney General Heidi Bettendorf represented the state.
[Funchess v. State, 06/06/12]
Opinion: