Office of Attorney General Pam Bondi
Criminal Law Alert
__________________________________________________________________
Date issued: 03/03/2011
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
Snyder v. Phelps, 09-751. Decided March 2, 2011. Summary by Dan Schweitzer at
NAAG.
By an 8-1 vote, the Court held that the First Amendment shields from tort liability members of the Westboro Baptist Church who picketed near the funeral service of a soldier killed in the line of duty in Iraq. A jury had awarded the soldier’s father $2.9 million in compensatory damages, plus punitive damages, from the church members for intentionally inflicting emotional distress and committing other state-law torts through their picketing. The Court found, however, that the church members’ speech related to issues of broad public interest ─ “the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality and the military, and scandals involving the Catholic clergy” ─ and that they displayed their signs on public land next to a public street. Accordingly, their speech was entitled to full First Amendment protection. Quoting a prior case, the Court stated that “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive and disagreeable.”
Decision:
Pepper v. United States, 09-6822. Decided March 2, 2011. Summary by Dan Schweitzer at
NAAG.
By a 7-1 vote, the Court held that, under the federal Sentencing Guidelines, “when a defendant’s sentence has been set aside on appeal and his case remanded for resentencing, a district court may consider evidence of a defendant’s rehabilitation since his prior sentencing and that such evidence may, in appropriate cases, support a downward variance from the advisory Guidelines range.”
Decision:
Michigan v. Bryant, 09-150. Decided February 28, 2011. Summary by Dan Schweitzer at
NAAG.
By a 6-2 vote, the Court held that questions posed by an officer to a wounded citizen concerning the perpetrator and circumstances of the shooting were not testimonial within the meaning of Crawford v. Washington, 541 U.S. 36 (2004). The Court construed the “primary purpose” test adopted in Davis v. Washington, 547 U.S. 813 (2006), as requiring an objective inquiry into the purpose of the interrogation based on “all relevant circumstances,” and which “accounts for both the declarant and the interrogator.” Applying that approach, the Court concluded that the victim ─ whose answers to the “officers’ questions were punctuated with questions about when emergency medical services would arrive” ─ did not have a primary purpose “to establish or prove past events potentially relevant to later criminal prosecution”; and that the police’s questions about “what had happened, who had shot him, and where the shooting occurred,” were designed to “enable them to meet an ongoing emergency” involving a gunman on the loose.
Decision:
Walker v. Martin, 09-996. Decided February 23, 2011. Summary by Dan Schweitzer at
NAAG.
The Court unanimously held that California’s time limitation on applications for post-conviction relief ─ which requires petitioners to file known claims “as promptly as the circumstances allow” ─ is an independent state ground adequate to bar federal habeas relief. The Court reiterated that discretionary state rules can be “firmly established” and “regularly followed” (the traditional test of adequacy) “even if the appropriate exercise of discretion may permit consideration of a federal claim in some cases and not others.”
Decision:
“Petitions to Watch.” Summaries of cases up for consideration at the Justices’ March 4th conference. Reported in SCOTUSblog.
Title: Philip Morris USA Inc. v. Jackson
Docket: 10-735
Issue(s): Whether the Due Process Clause prevents state courts from employing the class-action device to eliminate fundamental substantive and procedural protections that would otherwise apply to adjudications of class members' individual claims.
Title: McNair v. US
Docket: 10-533
Issue(s): Whether the Government must prove that a defendant had the specific intent to engage in a quid pro quo to convict him of bribery under 18 U.S.C. § 666.
Title: Idaho v. Shackelford
Docket: 10-589
Issue(s): (1) Whether the Idaho Supreme Court erred in concluding that errors under Ring v. Arizona, requiring statutory aggravating factors to be found by a jury, are not subject to harmless error analysis; and (2) whether the state met its burden of establishing beyond a reasonable doubt that any Ring error involving the failure to instruct the jury regarding the multiple murder aggravator was harmless, based on the evidence presented at trial and the jury’s verdict that Shackelford was guilty of two murders.
Other petitions being watched:
Title: Al-Odah v. United States
Docket: 10-439
Issue(s): (1) Whether the Federal Rules of Evidence and 28 U.S.C. § 2246 limit the admissibility of hearsay in a habeas corpus case challenging indefinite imprisonment, potentially for life; (2) whether a preponderance of the evidence standard, rather than a clear and convincing evidence standard, is sufficient under the Due Process Clause of the Constitution and 28 U.S.C. § 2241 to support a ruling in favor of indefinite imprisonment, potentially for life.
Title: Felkner v. Jackson
Docket: 10-797
Issue(s): Whether a ruling by the court of appeals on habeas, reversing a district court's decision and finding a state prosecutor's proffered race-neutral bases for peremptorily striking two out of three African-American jurors insufficient, satisfies the restrictions on habeas corpus relief imposed by Congress in 28 U.S.C. § 2254(d)?
United States Court of Appeal
Eleventh Circuit
Eleventh Circuit
Petitioner failed to make any showings of “reasonable diligence” or show any extraordinary circumstances that prevented him from timely filing.
San Martin v. Secretary, DOC, 09-14311. Decided February 23, 2011.
San Martin, a Florida death row inmate, appealed the district court’s decision “dismissing as time-barred his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.” San Martin argued that “because there was a two-week delay in his receipt of actual notice of a United States Supreme Court order triggering the commencement of the one-year statute of limitations established by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2241 et seq., the district court erred in not applying equitable tolling.”
The 11th Circuit noted that “AEDPA’s one-year limitation period begins to run from the day after the Supreme Court enters an order denying the petition for writ of certiorari.” Washington v. United States, 243 F.3d 1299, 1300-01 (11th Cir. 2001). The AEDPA clock stops when petitioner files a motion for post-conviction relief, tolling the time until the Florida Supreme Court issues a mandate disposing of the motion for post-conviction relief. Once the mandate is issued, the AEDPA clock begins running again. See 28 U.S.C. § 2244(d)(2) and Lawrence v. Florida, 549 U.S. 327, 331-32 (2007). San Martin’s conviction became final on October 5, 1998. He filed his post-conviction relief motion on October 4, 1999, “363 days after the judgment became final on direct review.” San Martin “filed the motion to toll the federal habeas statute of limitations.” The Florida Supreme Court issued its mandate, affirming the trial court’s denial of post-conviction relief on December 3, 2008. San Martin filed his federal habeas petition on December 18, 2008. It was due on December 5, 2008.
The 11th Circuit held that the petition was untimely because “San Martin filed it on December 18, 2008, after 378 days of untolled time had passed - - 13 days more than that allowed under AEDPA.” The 11th Circuit noted that San Martin’s case was unlike Knight v. Schofield, 292 F.3d 709 (11th Cir. 2002), or Holland v. Florida, 560 U.S. ---, 130 S. Ct. 2549, 2560 (2010), and more like Drew v. Dep’t of Corr., 297 F.3d 1278, 1283 (11th Cir. 2001). “San Martin knew his petition for writ of certiorari was pending with the Supreme Court, but he failed to make any showings of ‘reasonable diligence.’” Thus, “we cannot conclude that the district court’s finding in this regard was clearly erroneous.” Further, San Martin had not shown there were any extraordinary circumstances that prevented him from timely filing. The 11th Circuit also held the district court did not abuse its discretion in failing to hold an evidentiary hearing on the equitable tolling claim.
Assistant Attorney General Sandra Jaggard represented the state.
[San Martin v. Secretary, DOC, 02/23/11]
Opinion:
First District Court of Appeal
Court erred denying second suppression motion; inventory search not conducted according to standardized criteria set forth by police dept.
Kilburn v. State, 1D10-3614. Opinion filed February 22, 2011.
Kilburn pled no contest to felony DUI, possession of marijuana, and possession of alprazolam, reserving his right to appeal the denial of his two dispositive motions to suppress.
The record reveals that a “deputy sheriff observed Kilburn’s pick-up truck weaving and crossing the centerline of the road several times over the course of approximately two and one-half miles.” Suspecting the driver was under the influence, the deputy “activated his lights to initial a traffic stop.” “Kilburn was arrested for driving under the influence (DUI), and the state charged the offense as a felony based upon Kilburn’s three prior DUI convictions.” Following the arrest, Kilburn’s truck was towed to the impound lot, where an inventory search was conducted of the truck. The deputy testified that the “Sheriff’s Office policy required an inventory search to be done whenever a vehicle is towed, but that there were no standardized criteria or procedures for conducting such a search.” Drugs were found during the search and Kilburn was arrested for possession of drugs, along with the felony DUI charge. Kilburn filed his first motion to suppress the drugs and all evidence related to the accusation he was DUI on the grounds the traffic stop was an unlawful seizure. In May 2010, he filed his second motion to suppress the drugs arguing “the search was conducted without a warrant and no exception to the warrant requirement applied.” That motion was denied because the trial court found “that the search was part of a valid inventory search which was an exception to the warrant requirement.”
The 1st DCA noted “for this exception to apply, the inventory search must be ‘conducted according to standardized criteria.’” State v. Wells, 439 So. 2d 464, 468 (Fla. 1989) (quoting Bertine, 479 U.S. at 374 n.6), aff’d by Florida v. Wells, 495 U.S. 1 (1990). The 1st DCA stated that “the trial court did not make any findings regarding the existence of, or the deputy’s compliance with, standardized criteria in conducting the inventory search of Kilburn’s truck.” While the deputy testified it was standard policy to conduct an inventory search after the vehicle was towed, “he also testified that there were no standardized criteria for performing such a search.” Also, there was no evidence presented that it was standard policy to open any closed containers that were found during the search, “such as the pill bottle in Kilburn’s truck where the drugs were found.” Based on these circumstances, the 1st DCA concluded it was error for the trial court to deny Kilburn’s motion to suppress the drugs found in his truck. The 1st DCA reversed the trial court’s order denying the second motion to suppress.
- . . . and because that motion was dispositive of the possession of marijuana and possession of alprazolam offenses, we remand with directions that Kilburn be discharged on those offenses. In all other respects, Kilburn’s judgment and sentence is affirmed.
[Kilburn v. State, 02/22/11]
Opinion:
Second District Court of Appeal
When you request the jury instruction on lesser-included offense; you waive any argument as to sufficiency of the evidence as to the lesser offense.
State v. Garner, 2D10-582. Opinion filed February 16, 2011.
Garner, charged with resisting arrest with violence, was “found guilty of the lesser-included offense of resisting arrest without violence.” “The trial court granted Garner’s motion for judgment of acquittal after the verdict based on the insufficiency of the evidence to support the lesser-included offense.” The State appealed arguing “Garner waived any postverdict sufficiency of the evidence argument by requesting the permissive lesser-included offense instruction.”
The 2nd DCA noted that when “a defendant seeks an instruction on a lesser-included offense and is found guilty of the lesser offense, the court must review the evidence to determine if it is sufficient to support the greater offense, not the lesser.” State v. Espinose, 686 So. 2d 1345, 1348-49 (Fla. 1996); Messer v. State, 757 So. 2d 526, 528 (Fla. 4th DCA 2000). Once the defendant requests this instruction, he “waives any argument as to the sufficiency of the evidence as to the lesser offense.” Espinose, 686 So. 2d at 1349.
The 2nd DCA reversed and remanded for the trial court to reinstate the conviction for resisting arrest without violence. “The trial court erred in granting the postverdict judgment of acquittal based on the sufficiency of the evidence for the lesser-included offense rather than the charged offense.”
Assistant Attorney General Marilyn Muir Beccue represented the state.
[State v. Garner, 02/16/11]
Opinion:
Fourth District Court of Appeal
Case reversed and remanded pursuant to Spera; trial court instructed to strike 3.850 motion with leave to refile with a properly sworn affidavit.
Fletcher v. State, 4D10-588. Opinion filed February 23, 2011.
Fletcher, found guilty of first degree murder and armed robbery, appealed the order summarily denying his 3.850 postconviction relief motion as untimely and successive, “though it was based on newly discovered evidence.”
The record reveals the alleged murder occurred back in July 1994; Fletcher’s defense was voluntary intoxication; and the victim was Fletcher’s “alleged drug dealer.” Defense counsel only presented one witness, a substance abuse expert, to support the voluntary intoxication defense. In Fletcher’s timely 3.850 motion, he claimed his counsel was ineffective for failing to call, on his behalf, Jerry Rigsby, who was a friend to both Fletcher and the victim. Fletcher claims Rigsby would have testified that Fletcher was a long time substance abuser; that he knew what Fletcher was like when he was intoxicated; and that he saw Fletcher, who was intoxicated, on the date of the murder. The trial court summarily denied this ground saying Fletcher “made no showing that Rigsby would have been available to offer admissible testimony.”
Fletcher filed another 3.850 motion in January 2009, alleging newly discovered evidence that his attorney and the victims’ attorney “had perpetrated a fraud on the court and a miscarriage of justice.” There were several conflicting “representations” that were alleged to have been made between the two attorneys in an alleged effort to keep Rigsby from testifying at Fletcher’s trial. While the State argued the motion was untimely and successive, it did suggest, in a footnote, “that if the trial court disagreed, it could dismiss the petition without prejudice because Rigsby’s ‘affidavit’ was not under oath.” The trial court summarily denied the motion. “The State maintains the same position in this court, and also argues that Spera v. State, 971 So. 2d 754, 755 (Fla. 2007), does not apply to untimely successive motions.”
The 4th DCA stated: “Had the ‘affidavit’ been properly sworn, then an evidentiary hearing might have been required to determine whether to set aside Defendant’s conviction on the basis of newly discovered evidence, see Jones v. State, 709 So. 2d 512, 521 (Fla. 1998), unless Rigsby’s allegations were conclusively refuted by the record, or it could be determined, from the face of the sworn allegations, that they are inherently incredible. McLin v. State, 827 So. 2d 948 (Fla. 2002).” The 4th DCA reversed and remanded.
- Because Rigsby’s “affidavit” does not contain a proper oath, on remand the trial court should strike the motion with leave to refile the motion with a properly sworn affidavit, within a reasonable time period, pursuant to Spera. Compare Moss v. State, 943 So. 2d 946 (Fla. 4th DCA 2006) and Hall v. State, 11 So. 3d 1002 (Fla. 4th DCA 2009).
Assistant Attorney General Diane Medley represented the state.
[Fletcher v. State, 02/23/11]
Opinion:
Fifth District Court of Appeal
Defendant did not waive speedy trial; continuance actually attributable to State, who was not prepared for hearing on Crawford objection.
Self v. State, 5D10-2813. Opinion filed February 25, 2011.
Self moved for a writ of prohibition “to prevent his criminal prosecution in Orange County Circuit Court based on a violation of a speedy trial rule.”
The record reveals that on January 13, 2010, Self was arrested “for failure to register as a sex offender.” On May 26, 2010, the State filed its notice of intent to rely on business records at trial. One month later Self filed an objection “relying on Crawford v. Washington, 541 U.S. 36 (2004), which held that testimonial hearsay is inadmissible at trial unless the declarant is unavailable and the defendant had a prior meaningful opportunity to cross-examine the declarant.” At the pre-trial conference no mention was made of Self’s Crawford objection and the trial was scheduled for the week of July 19th, 2010. The State, on July 20th, informed the court of Self’s Crawford objection but advised the court “it had not subpoenaed the record custodians and needed more time to do so.” “The court continued the trial, charging the continuance to Self based on his continued Crawford objection to the use of the business records.” Self filed a notice of expiration of speedy trial on July 22, 2010. It was noted in footnote one that “the last day of the speedy trial period was July 7, 2010.” A hearing was set on August 5, 2010, by the State, to hear Self’s business records objections. The State announced it was ready to start trial that day but requested the substitute judge to hear Self’s business records objections. The substitute judge declined to rule on any issue and no further arguments were made, nor did the State request any extensions of the speedy trial period. Self filed a motion for discharge on August 9, 2010, but the motion was denied by the trial judge who again determined “Self had waived speedy trial based on the earlier continuance that was attributed to him.” Self’s Crawford objection was also denied and the trial was set “for the two-week period beginning on November 1, 2010.” Self petitioned “for a writ of prohibition on speed trial grounds, claiming that he did not waive speedy trial; that the continuance was improperly charged to him; and that the State had failed to bring him to trial within 175 days from the date of arrest, or within the 15-day recapture period.” The State argued “Self waived the speedy trial by filing an objection to the use of business records, which required a pre-trial hearing.”
Agreeing with Self, the 5th DCA found “that the trial court improperly determined that he waived speedy trial solely by objecting to admissibility of the business record evidence.” It was the State that was not prepared for the hearing on Self’s Crawford objection. “As such, the continuance was actually attributable to the State, not the defense, and speedy trial was not waived at that time.” The 5th DCA held that Self “is entitled to discharge” and granted the petition.
Assistant Attorney General Rebecca Roark Wall represented the state.
[Self v. State, 02/25/11]
Opinion: