Office of Attorney General Pam Bondi
Criminal Law Alert
__________________________________________________________________
Date issued: 06/25/2012
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
Southern Union Company v. United States, 11-94. Decided June 21, 2012. Summary by Dan Schweitzer at NAAG.
In a 6–3 ruling, the Court held that the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), that the Sixth Amendment requires a jury to find beyond a reasonable doubt, any fact (other than a prior conviction) that increases a criminal defendant’s maximum potential sentence, also applies to sentences of criminal fines.
Decision:
Knox v. Service Employees Int’l Union, 10-1121. Decided June 21, 2012. Summary by Dan Schweitzer at NAAG.
In an opinion by Justice Alito, the Court held that public sector unions may not require non-members to pay for special assessments that will be used to fund a political or ideological activity. It also held that fresh notice must be given to nonmembers when assessing a special fee, and that the unions may not exact funds unless the nonmembers provide affirmative consent. Although the union in this case offered a full refund of the paid assessments after certiorari was granted, the Court held that the issue was not moot because the conduct could be immediately resumed.
Decision:
Dorsey v. United States, 11-5683, and Hill v. United States, 11-5721. Decided June 21, 2012. Summary by Dan Schweitzer at NAAG.
In a 5–4 ruling the Court held that the new, more lenient mandatory minimum provisions of the Fair Sentencing Act of 2010, which reduced the disparity in sentences for crack and powder cocaine offenses from 100-to-1 to 18-to-1, applies retroactively to crack offenders who committed their offense prior to the Act’s August 3, 2010 effective date but who were sentenced after August 3, 2010.
Decision:
Williams v. Illinois, 10-8505. Decided June 18, 2012. Summary by Dan Schweitzer at NAAG.
By a 4-1-4 vote, the Court held that a defendant’s Confrontation Clause rights were not violated when an expert witness, relying on the DNA testing performed ─ and lab report prepared ─ by another DNA analyst, gave her expert opinion that there was a DNA match. A four-Justice plurality (the Chief Justice and Justices Alito, Kennedy, and Breyer) reasoned that the expert could be cross-examined and that the out-of-court statements (the lab report) related by the expert to explain her assumptions “are not offered for their truth and thus fall outside the scope of the Confrontation Clause.” An opinion by Justice Thomas concurring in the judgment rejected that reasoning but reached the same result based on his conclusion that the statements in the lab report “lacked the requisite ‘formality and solemnity’ to be considered ‘testimonial’ for purposes of the Confrontation Clause.” He specifically noted that the lab report was “neither a sworn nor a certified declaration of fact,” and that although it was signed by two “reviewers,” neither of them “purport[ed] to have performed the DNA testing nor certif[ied] the accuracy of those who did.”
Decision:
Certiorari Granted: Summary by Dan Schweitzer at NAAG.
Smith v. United States
Docket: 11-8976
Issue(s): Under review is a D.C. Circuit decision holding that “[o]nce the Government has proven that a defendant was a member of a conspiracy, the burden is on the defendant to prove withdrawal from [the] conspiracy by a preponderance of the evidence.” Petitioners argue that the government should have to prove beyond a reasonable doubt that they were members of the conspiracy during the relevant period.
Certiorari Denied:
Fairey v. Tucker, Secretary – Certiorari Denied June 18, 2012.
Docket: 11-7185
Reminder: this is the case where Fairey was tried in absentia and without counsel on state felony charges. This was not our case; he was housed here and the case was in SC.
Issue(s): Did the Court of Appeals err in dismissing the Petitioner’s appeal and denying the certificate of appealability where the record showed that the district court’s assessment of the constitutional claims was wrong?
Dissenting Opinion:
“Petitions to Watch.” Summaries by Erin Miller @ SCOTUS.
The following cases were up for consideration at the Justices’ private conference on June 21, 2012:
Herring v. Florida
Docket: 11-1158
Issue(s): Whether the Florida Supreme Court’s refusal to permit consideration of the standard error of measurement in its determination of mental retardation in capital cases violates the Eighth and Fourteenth Amendments, which forbid the execution of a mentally retarded person under Atkins v. Virginia.
Micci v. Aleman
Docket: 11-1062
Issue(s): (1) Whether the Seventh Circuit correctly held, on a question that has fractured the circuits, that police may be civilly liable for the use of a suspect’s custodial statement, obtained either in violation of Miranda v. Arizona or as a result of coercion, where the statement was introduced to charge the suspect but the charges were dismissed prior to trial; and (2) whether the Seventh Circuit correctly held – seemingly for the first time by any federal appellate court – that a police officer unconstitutionally coerced a suspect’s statements by using the routine interview technique of lying to the suspect about the strength of the case against him.
Martel v. Tuite (relisted after 6/14 Conference)
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.
Henderson v. United States (relisted after the 6/14 Conference)
Docket: 11-9307
Issue(s): Whether an error is “plain” for purposes of review under Federal Rule of Criminal Procedure 52(b) when the law is unsettled at the time the error is committed but becomes clear by the time of a subsequent appeal.
United States Court of Appeal
Eleventh Circuit
Eleventh Circuit
“. . . damned if they do, and damned if they don’t”
Morton v. Secretary, DOC, et al., 11-11199. Opinion filed June 20, 2012.
This appeal illustrates the truism that, regardless of the mitigation strategy
that capital defense lawyers choose, they are often “damned if they do, and
damned if they don’t” when their clients later assert claims of ineffective
assistance of counsel during collateral review.
Morton was convicted and sentenced to death for the brutal murders of an elderly woman and her son. During both penalty phases, Morton’s defense counsel “presented expert testimony that Morton’s troubled childhood caused him to develop an antisocial personality disorder, which led him to commit the murders.” He argued “this disorder, mitigated Morton’s moral culpability for the murder, but the jury rejected this argument and sentenced Morton to death.”
The 11th Circuit noted that while most habeas petitioners argue their counsel “rendered ineffective assistance by not presenting evidence of an antisocial personality disorder, . . . Morton argues that his trial lawyers rendered ineffective assistance because they presented evidence that Morton had an antisocial personality disorder.” The 11th Circuit found that “this argument fails.”
The 11th Circuit held that the Florida Supreme Court “reasonable applied Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), when it rejected Morton’s claim” and affirmed the denial of Morton’s habeas corpus petition.
Assistant Attorney General Scott Browne represented the state.
[Morton v. Secretary, DOC, 06/20/12]
Opinion:
Florida Supreme Court
RULE AMENDMENTS--ELECTRONIC FILING OF DOCUMENTS IN FLORIDA COURTS. Summary from The Florida Law Weekly.
The Court adopted proposed amendments to the Florida rules of court to implement mandatory electronic filing procedures for all documents filed in Florida courts, with certain limited exceptions. An implementation schedule was established to provide that the electronic filing requirements will become effective in civil, probate, small claims, and family law divisions of the trial courts, as well as for appeals to the circuit courts in these categories of cases, on April 1, 2013. The electronic filings requirements will become effective in criminal, traffic, and juvenile divisions of the trial courts, as well as for appeals to the circuit courts in these categories of cases, on October 1, 2013. The requirements will become effective in the supreme court and district courts of appeal on October 1, 2012. IN RE: AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE, THE FLORIDA RULES OF JUDICIAL ADMINISTRATION, THE FLORIDA RULES OF CRIMINAL PROCEDURE, THE FLORIDA PROBATE RULES, THE FLORIDA SMALL CLAIMS RULES, THE FLORIDA RULES OF JUVENILE PROCEDURE, THE FLORIDA RULES OF APPELLATE PROCEDURE, AND THE FLORIDA FAMILY LAW RULES OF PROCEDURE--ELECTRONIC FILING. SC11-399. Opinion Filed June 21, 2012.
Rule Amendments - E-Filing:
SERVICE OF PLEADINGS OR PAPERS--E-MAIL SERVICE--RULE AMENDMENTS. Summary from The Florida Law Weekly.
The Court adopted changes to the Rules of Judicial Administration, Rules of Civil Procedure, Rules of Criminal Procedure, Probate Rules, Rules of Traffic Court, Small Claims Rules, Rules of Juvenile Procedure, Rules of Appellate Procedure, Family Law Rules of Procedure and Forms to implement mandatory e-mail service for all cases in Florida. E-mail service will be mandatory for attorneys practicing in civil, probate, small claims, and family law divisions of trial courts, as well as in all appellate cases, when rule amendments take effect on July 1, 2012. When the rules take effect on July 1, attorneys practicing in criminal, traffic, and juvenile divisions of trial court may voluntarily choose to serve documents by e-mail under new procedures, or they may continue to operate under existing rules. E-mail service will be mandatory for attorneys practicing in these divisions on October 1, 2013. Self-represented parties involved in any type of case in any Florida court may, but are not required to, serve documents by e-mail. Attorneys excused from e-mail service are also not obligated to comply with new e-mail service requirements. Several limited exceptions to the e-mail requirement are permitted, and these were outlined in the Court's opinion. IN RE: AMENDMENTS TO THE FLORIDA RULES OF JUDICIAL ADMINISTRATION. SC10-2101. Opinion Filed June 21, 2012.
Rule Amendments – Service of Pleadings:
First District Court of Appeal
Sentenced affirmed; sentence provides some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.
Smith v. State, 1D11-4040. Opinion filed June 21, 2012.
Smith appealed “his aggregate eighty-year sentence, asserting that the sentence is the functional equivalent of a life sentence without parole and thus violates the constitutional prohibition against cruel and unusual punishment in light of Graham v. Florida, 130 S. Ct. 2011 (2010).”
The offenses for which Smith was convicted occurred December 4th and 6th in 1985. Two separate cases with eight offenses: two counts of sexual battery, two counts of burglary, one count of aggravated assault, one count of kidnapping, one count of possession of a weapon during the commission of a felony, and one count of possession of burglary tools. Smith was seventeen when he committed the crimes; he pled nolo contendere and received multiple life sentences without the possibility of parole. Following the Graham decision, the State, in March 2011, motioned to correct illegal sentence “because Smith had received multiple life sentences for non-homicide offenses committed when he was seventeen years old.” Smith is appealing his new sentence.
The United States Supreme Court, in Graham held that “a sentence of life without parole for a juvenile offender who commits a non-homicide offense violates the Eighth Amendment.” Id. at 2030.
- A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.
In Floyd v. State, 1D11-1983, 2012 WL 1216269 (Fla. 1st DCA April 12, 2012), the defendant, Floyd, committed his offenses in 1998 and “was required to serve at least eighty-five percent of his sentence.” Even if he received the maximum amount of gain time, “the earliest he would be released is at age eighty-five.” And based on those facts, this court concluded that “[t]his situation does not in any way provide [Floyd] with a meaningful or realistic opportunity to obtain release, as required by Graham, 130 S. CT. at 2030.”
Smith was sentenced in 1985, thus, “unlike the defendant in Floyd, Smith is not required to serve eight-five percent of his sentence.” Both his 1985 basic gain-time statutes apply (10 days for each month of each sentence imposed) and his 1985 incentive gain time for good behavior statutes apply (up to twenty days per month). § 944.275(4)(a) and (b), Florida Statutes (1985). The 1st DCA stated that “[c]onsidering both the basic and incentive gain time available to him, and assuming no forfeiture of gain time earned, it is evident that Smith was eligible to serve a sentence significantly less than the sixty-three years he would serve if only basic gain time were applied.”
The 1st DCA affirmed Smith’s sentences.
- Because of the gain time available to him, we conclude that Smith has been afforded the requisite “meaningful opportunity to obtain release based upon demonstrated maturity and rehabilitation” mandated by Graham.
[Smith v. State, 06/21/12]
Opinion:
Trial court properly granted Motion to Dismiss based on pre-arrest delay; State failed to meet its burden in showing reasons for delay outweighed the actual prejudice.
State v. Hope, 1D11-4787. Opinion filed June 18, 2012.
The State appealed the trial court’s order granting Hope’s “Second Amended Motion to Dismiss based upon pre-arrest delay, resulting in a due process violation.” “The State argues that a due process violation based upon pre-arrest delay requires finding substantial prejudice to an accused’s right to a fair trial and finding that the delay was an intentional device used to gain a tactical advantage over the accused.”
Hope was charged by information on October 14, 2010 with sale of a controlled substance. It was alleged that the crime occurred on November 20, 2007, “almost three years before the information was filed.” After considering all the evidence and testimony presented at four separate hearings, the trial court granted Hope’s Second Amended Motion to Dismiss, “finding a due process violation as a result of pre-arrest delay.” The trial court “found actual prejudice was demonstrated through Williams’ and Hudson’s testimony.”
Brooke Williams (Hope’s former girlfriend) testified that “she believed there was a strong possibility she was with the Defendant on the date in question, but could not prove it due to the passage of time.” She would have been home from college on Thanksgiving break; she might have left early and could not remember. Merrell Hudson (half –brother and co-defendant) testified that Hope was not the one with him that day; he knew who it was but did not know how to contact or locate this person anymore.
The 1st DCA found that the trial court did not abuse its “discretion in finding actual prejudice supported by articulable reasons, rather than just fuzzy memory” when it granted the second motion to dismiss.
It is the State’s burden to show why the delay was necessary. The trial court found “that the first half of the delay was legitimate investigative delay and the second half was negligent delay.” The 1st DCA found that “[i]n balancing the reasons for the delay against the prejudice, we cannot say the trial court abused its discretion.” The 1st DCA affirmed the trial court’s order granting Hope’s Second Amended Motion to Dismiss.
Assistant Attorney General Donna Gerace represented the state.
[State v. Hope, 06/18/12]
Opinion:
Second District Court of Appeal
It was error for the trial court to allow repeated comments on defendants postarrest right to remain silent.
Geissler v. State, 2D10-976. Opinion filed June 22, 2012.
Geissler was found guilty of three counts of capital sexual battery and one count of lewd or lascivious molestation. Geissler appealed raising five issues. The 2nd DCA determined that only two of the issues had merit: “comment on the exercise of the right to remain silent” and “vouching for the credibility of the child victim.”
It was noted that the first trial ended in a mistrial “after Detective Federico testified before the jury that Mr. Geissler had terminated the postarrest interrogation at the jail by requesting an attorney and declining to say anything further.” “The same judge presided over the second trial; the prosecutor and Mr. Geissler’s defense counsel also reprised their roles from the first trial.” While the players were the same and it was known why the first trial ended in a mistrial, “comment on and testimony about Mr. Geissler's postarrest exercise of his right to remain silent became a feature of the second trial. In fact, the matter was raised on four separate occasions during the one-day trial.” The opinion details all four instances.
The 2nd DCA noted that “[u]nder Miranda v. Arizona, 384 U.S. 436 (1966), "comment on an accused's post-arrest silence is constitutional error." State v. DiGuilio, 491 So. 2d 1129, 1134 (Fla. 1986).”
- Here, the problem we address is not the result of a careless remark by a witness or an isolated prosecutorial comment which is susceptible of more than one interpretation. On the contrary, the prosecutor—through her own comments and the testimony she elicited—hammered the point home again and again throughout Mr. Geissler's brief trial that he had exercised his right to remain silent during the jailhouse interview conducted by Detective Federico. The trial court consistently overruled defense counsel's objections and denied his motions for mistrial on account of these comments and testimony. In making these rulings, the trial court erred. See Green v. State, 27 So. 3d 731, 735-36 (Fla. 2d DCA 2010).
As for the second issue, the 2nd DCA noted that “[a]s a general rule, ‘it is not proper to allow an expert to vouch for the truthfulness or credibility of a witness.’” The child victim in this case testified that she was sexually abused by Geissler and then on cross examination testified she made it up because she was mad at him and then again during re-direct she testified that she was telling the truth the first time. The nurse practitioner may testify as to “the physical findings observed on examination of the child victim” but she may not “comment directly on the child victim’s credibility.” That is what happened here. This was error, especially where the child victim testified she fabricated the story because she was mad at the defendant.
The 2nd DCA reversed and remanded for a new trial. “. . . the State has not met its burden of showing beyond a reasonable doubt that neither of these errors contributed to the verdicts.”
Assistant Attorney General Susan Shanahan represented the state.
[Geissler v. State, 06/22/12]
Opinion:
Third District Court of Appeal
“. . . defendant can be convicted of section 775.0844, Florida Statutes (2005), aggravated white collar crime, as well as the predicate offenses, without violating double jeopardy.”
Headley v. State, 3D10-153. Opinion filed June 20, 2012.
Bureau Chief Richard Polin noted that this is a noteworthy opinion.
- It is the first time any Florida appellate court has addressed the question of whether dual convictions under Florida's aggravated white collar crime statute and its enumerated predicate offenses violate the double jeopardy clause. The Third District ruled in our favor.
Apart from the significant issue, this was a high profile case, and there is a still separate, pending appeal from a codefendant, Phil Davis, a former circuit court judge in Miami, who was convicted of the offenses as well.
Michael Mervine has been handling both of these appeals for us.
Assistant Attorney General Michael Mervine represented the state.
[Headley v. State, 06/20/12]
Opinion:
Fifth District Court of Appeal
Another certified question regarding a police officer’s search of a cell phone, without a warrant, at the time of a valid arrest.
State v. Glasco, 5D11-851. Opinion filed June 15, 2012.
The State appealed the trial court’s decision to suppress “certain text messages discovered on the defendant’s cell phone by the arresting officer incident to the defendant’s arrest.”
In its analysis, the 5th DCA addressed several cases that addressed containers found on a person being searched incident to their arrest, which includes cell phones and the information stored on them; be it pictures, text messages, etc. See Smallwood v. State, 61 So. 3d 448 (1st DCA 2011) and Fawdry v. State, 70 So. 3d 626 (Fla. 1st DCA 2011). The court in both Smallwood and Fawdry upheld the denial of the motion to suppress evidence found of their cell phones. In support of both decisions, the following 1973 case was referenced: “United States v. Robinson, 414 U.S. 218, 234, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973), in which the Court held containers found upon a person incident to arrest may be searched without ‘additional justification.’”
The 5th DCA, pursuant to Fawdry and Smallwood, reversed the order granting the motion to suppress and remanded for further proceedings. The 5th DCA also certified to the Florida Supreme Court a question of great public importance “similar to the questions certified in Fawdry and Smallwood”:
- DOES THE HOLDING IN UNITED STATES v. ROBINSON, 414 U.S. 218,
94 S. Ct. 467, 38 L. Ed. 2d 427 (1973), ALLOW A POLICE OFFICER TO
SEARCH THROUGH INFORMATION CONTAINED WITHIN A CELL
PHONE THAT IS ON AN ARRESTEE'S PERSON AT THE TIME OF A
VALID ARREST?
Assistant Attorney General Kristen Davenport represented the state.
[State v. Glasco, 06/15/12]
Opinion: