Office of Attorney General Pam Bondi
Criminal Law Alert
__________________________________________________________________
Date issued: 03/23/2011
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
Felkner v. Jackson, 10-797. Decided March 21, 2011.
The Court summarily reversed a Ninth Circuit decision that had granted habeas relief on the ground that the California state courts had unreasonably applied Batson v. Kentucky. Calling the Ninth Circuit’s one-sentence explanation for its decision “as inexplicable as it is unexplained,” the Court concluded that “the trial court credited the prosecutor’s race-neutral explanations, and the California Court of Appeal carefully reviewed the record at some length in upholding the trial court’s findings. . . . There was simply no basis for the Ninth Circuit to reach the opposite conclusion, particularly in such a dismissive manner.”
Opinion:
Certiorari Granted: Summaries by Dan Schweitzer at NAAG.
Maples v. Thomas, 10-63. Certiorari Granted March 21, 2011.
At issue in this capital case is whether petitioner showed cause to excuse procedurally defaulting his claims by failing to timely appeal the state trial court’s denial of post-conviction relief. Petitioner failed to file a timely appeal because his out-of-state pro bono counsel (two associates at Sullivan & Cromwell) had left the firm by the time the trial court issued its order, and the firm’s mail room declined to accept the envelopes containing the order. (Local counsel received the order, but apparently assumed lead counsel would handle the matter.) Petitioner argues that he has shown cause because (1) the trial court clerk was obligated to take action once it received the unopened envelopes, and (2) the Sullivan & Cromwell attorneys were no longer functioning as his agent once they left the firm and failed to provide notice to the Alabama courts.
Rehberg v. Paulk, 10-788. Certiorari Granted March 21, 2011.
The question presented is “[w]hether a government official who acts as a ‘complaining witness’ by presenting perjured testimony against an innocent citizen is entitled to absolute immunity from a Section 1983 claim for civil damages.”
Other Orders:
Certiorari Denied: Summary by Dan Schweitzer at NAAG.
Huber v. New Jersey Dep’t of Env. Protection, 10-388. Certiorari Denied March 21, 2011.
Four Justices filed a statement respecting the denial of certiorari. This case involved the exception to the Fourth Amendment’s warrant requirement for searches of businesses in “closely regulated industries.” The cert petition sought review of a New Jersey appellate court ruling that applied this doctrine to uphold a warrantless search by a state environmental official of the Hubers’ backyard because their property contains wetlands protected by a New Jersey environmental statute. The Four Justices stated that “[t]his Court has not suggested that a State, by imposing heavy regulations on the use of privately owned residential property, may escape the Fourth Amendment’s warrant requirement.” But denial of certiorari was nonetheless appropriate, they concluded, because the case comes on review from a state intermediate appellate court, not a state high court.
“Petitions to Watch.” Summaries by SCOTUS.
The following cases are up for consideration at the Justices’ private conference on March 25, 2011.
Stoval v. Miller
Docket: 10-851
Issue(s): (1) Whether the Sixth Circuit erred in concluding that "established law" for purposes of the Antiterrorism and Effective Death Penalty Act (AEDPA) is based on the law in effect when the state conviction becomes final; and (2) even if reviewed de novo, did the Sixth Circuit err in concluding that the suicide note here was "testimonial" under principles explained in Crawford v. Washington, such that Miller was entitled to relief.
Davis v. Humphrey
Docket: 10-949
Issue: Whether the court of appeals has jurisdiction under 28 U.S.C. §§ 1291 and 2253 to review a district court's final order on a habeas petition that was transferred to the district court from the Supreme Court.
Florida Supreme Court
“A Juror’s surname, without more, is insufficient to trigger an inquiry as to whether a peremptory strike was exercised for a discriminatory reason.”
Smith v. State, SC09-386. Opinion filed March 17, 2011.
The issue: whether a trial court can deny a party the right to exercise a peremptory strike against a juror where the record does not establish that the juror was a member of a protected class.
The Court stated the decision of the 3rd DCA “in Smith v. State, 1 So. 3d 352 (Fla. 3d DCA 2009), is in express and direct conflict with our precedent in State v. Alen 616 So. 2d 452 (Fla. 1993), which held that a juror’s surname, without more, is insufficient to trigger an inquiry as to whether the strike was exercised in a discriminatory manner.”
The Court noted that the 3rd DCA’s opinion “does not require that there be a threshold demonstration that the juror was a member of a protected class,” and therefore, “has the potential to undermine the very purpose for the protections required to prevent invidious discrimination in jury selection.”
The Court quashed the decision of the 3rd DCA “because it is contrary to our precedent in Alen that a juror’s surname, without more, is insufficient to trigger an inquiry as to whether the strike was exercised for a discriminatory reason.”
Bureau Chief Richard Polin and Assistant Attorneys General Douglas Glaid and Ansley Peacock represented the state.
[Smith v. State, 03/17/11]
Opinion:
B.O.L.O. - - - B.O.L.O. - New Cases Review by Florida Supreme Court. Summary in The Florida Law Weekly, Volume 36, Number 11, March 18, 2011.
ANDERSON v. STATE, 48 So.3d 1015, 35 Fla. L. Weekly D2668b (Fla. 5DCA 2010). Supreme Court Case No. SC11-3 (Anderson v. State). Order dated March 15, 2011. No oral argument. Criminal law--Community control violation--No error in finding that defendant violated community control by committing new law violation of driving with suspended driver's license where state proved by preponderance of evidence that defendant knew that license had been suspended for failure to pay restitution in two underlying cases, as required by payment plan--Proof of mailing of notice of suspension by Department of Highway Safety and Motor Vehicles to defendant's correct address was sufficient to support factual determination that defendant had knowledge of the suspension--Conflict certified.
FLORES v. STATE, 46 So.3d 102, 35 Fla. L. Weekly D2209e (Fla. 3DCA 2010). Supreme Court Case No. SC10-2198 (Flores v. State). Order dated March 14, 2011. No oral argument. Criminal law--Probation revocation--Sentencing--Youthful offenders--Where defendant was initially sentenced pursuant to Youthful Offender Act, trial court could properly sentence defendant to sentence greater than six years upon revocation of probation where probation was revoked on basis of commission of new criminal act--Six-year cap on sentencing upon revocation of probation applies in the case of technical violations, but not for the commission of new criminal acts--Six-year cap does not apply even when new charges are nolle prossed or dismissed--Conviction in new case need not precede sentencing on the probation violation as long as the court determining the violation has sufficient evidence that defendant committed the new offense.
HAYES v. STATE, 45 So.3d 99, 35 Fla. L. Weekly D2137a (Fla. 1DCA 2010). Supreme Court Case No. SC10-2104 (Hayes v. State). Order dated March 16, 2011. No oral argument. Criminal law--Robbery with weapon--False imprisonment with weapon or firearm--Petit theft--Jurors--Peremptory challenges--Denial--Trial court's finding that defense counsel's gender-neutral reason for challenging female jurors was not genuine was not clearly erroneous given fact that defense counsel's initial response to request for gender-neutral reason was "I don't have a gender-neutral reason," and reason ultimately given by defense counsel was one that applied to other jurors who were not challenged.
First District Court of Appeal
Confession should have been suppressed; police reinitiated contact with defendant after he invoked his right to have counsel present.
O’Brien v. State, 1D09-5396. Opinion filed March 16, 2011.
O’Brien, convicted for sexual battery on a child less than 12 years old, appealed arguing “the trial court erred in admitting into evidence his confession, his laptop computer and testimony about child pornography saved on the laptop.”
The record revealed that O’Brien was arrested at the victim’s home. Once O’Brien began “explaining that he and the victim had been ‘just messing around’ the deputy advised him of his Miranda rights.” Miranda v. Arizona, 384 U.S. 436 (1966). O’Brien “unequivocally” asked to have an attorney present, the deputy ceased the interrogation, and O’Brien was handcuffed and place in the patrol car. Approximately 40 minutes later, Sergeant Crews initiated a conversation with O’Brien, who was still sitting in the police vehicle (conversation as quoted from suppression hearing listed in opinion). Sergeant Crews asked O’Brien to help him out with the investigation and said he couldn’t talk with him unless he was “willing to reconsider” and talk with him. Crews said the 11-year-old victim was going to be interviewed by some specialist and that “the truth would come out” anyway. O’Brien was transported to the sheriff’s office and given his Miranda warnings again. O’Brien waived his right to an attorney, the interrogation continued and O’Brien confessed. The trial court denied the suppression motion stating that although O’Brien “initially invoked his right to counsel . . . he did make a later voluntary decision, after the second reading of Miranda, to waive his right to have counsel present. . . .”
“Waiver of one’s Miranda rights must be made voluntarily, knowingly and intelligently.” The 1st DCA noted that “[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.” Edwards v. Arizona, 451 U.S. 477, 484 (1981). “Under Edwards, ‘once an individual has invoked the Miranda right to counsel, a valid waiver of this right can be found only if the individual is the one responsible for reinitiating contact with the police.’ Sapp v. State, 690 So. 2d 581, 584 (Fla. 1977(emphasis added). And see Maryland v. Shatzer, __ U.S. __, __, 130 S. Ct. 1213, 1219-20 (2010) . . .”
The 1st DCA concluded that based on the standards above, “the trial court’s determination that Appellant voluntarily and validly waived his right to have counsel present during questioning is incorrect.” The trial court should have suppressed O’Brien’s confession. Further, “we cannot say with reasonable certainty the trial court’s failure to suppress Appellant’s statements was harmless and did not contribute to the jury’s guilty verdicts.” The 1st DCA reversed and remanded for further proceedings.
Assistant Attorney General Sonya Horbelt represented the state.
[O’Brien v. State, 03/16/11]
Opinion:
Second District Court of Appeal
Trial court erred; defendant sufficiently alleged prejudice.
Williams v. State, 2D10-3220. Opinion filed March 16, 2011.
Williams appealed the summary denial of his 3.850 postconviction relief motion where he raised five claims. The 2nd DCA affirmed claims one, three, four, and five, without comment. The 2nd DCA addressed ground two where Williams claimed “counsel was ineffective for failing to investigate and present a defense to the charge of criminal use of identification information.”
Williams alleged he told his counsel that “he was in lawful possession of the victim’s identification and that the victim was aware that he intended to secure a driver’s license with the information.” Williams claimed he gave counsel the victim’s name and phone number and asserts “that had counsel contacted the victim directly to verify the facts, he would not have pleaded guilty but would have gone to trial and would have been acquitted.” The postconviction court found that the “claim was facially insufficient for failure to allege prejudice.”
The 2nd DCA found that “Williams sufficiently alleges prejudice, and his allegation, if true, would have negated one of the elements of the charge of criminal use of personal identification information.” See § 817.568(2)(a), Fla. Stat. (2003). “Consent from the victim to use his personal information is a valid defense to criminal use of personal identification information, and if this were the case, the State would be unable to prove every element of the crime beyond a reasonable doubt at trial.”
- Because Williams' allegation is not refuted by the record, we reverse and remand as to ground two. On remand, the postconviction court shall either attach record documents conclusively refuting the allegation or hold an evidentiary hearing. In all other respects, the postconviction order is affirmed.
Assistant Attorney General Timothy Thomas represented the state.
[Williams v. State, 03/16/11]
Opinion:
Fourth District Court of Appeal
Evidence fails to demonstrate defendant was “validly arrested and in lawful custody” at time of alleged escape; conviction and sentence for escape reversed.
Moncrieffe a/k/a/ Foster v. State, 4D08-904. Opinion filed March 16, 2011.
Moncrieffe appealed his conviction for escape. He was “charged by information with escape while in the lawful custody of the Lauderhill Police Department . . . in violation of section 944.40, Florida Statutes.”
In three pages, the 4th DCA set forth the trial court’s findings of fact which detailed the series of events that involved three police departments. A footnote stated that Moncrieffe’s sexual battery and burglary with a battery charges were severed and “the trial relevant to this appeal involved only the escape charge.”
Moncrieffe was originally picked up by the Sunrise Police Department after the night-manager at Walgreens called with a complaint that a person was acting suspiciously. During a pat-down of Moncrieffe, outside in the parking lot, the officer felt a bulky object and asked Moncrieffe to empty his pockets. Moncrieffe complied and placed on the hood of the police car, keys to a Honda, a cell phone and a wallet which contained four counterfeit bills. One officer went over to the Honda and “noticed a driver’s license on the front passenger seat which obviously did not belong to the Defendant.” A warrantless search of the Honda “revealed the driver’s license, some tools, a hat, and a pair of gloves.” Upon further investigation, the officers found out the Honda and cell phone were reported stolen from a resident in Tamarac Florida. Moncrieffe was arrested for loitering and prowling and transported to the Sunrise Police Department.
Sunrise Police Department contacted the Broward Sheriff’s Office (BSO) to inform them they had a person in their custody that “may have committed a crime in BSO’s jurisdiction.” A BSO detective went to the Sunrise Police Department; mirandized defendant and obtained a written Miranda waiver form before talking with Moncrieffe about the stolen property. The BSO detective received permission from the owner of the cell phone to look through the numbers in his cell phone’s record memory. The BSO detective called one of the numbers and spoke with a woman who claimed she had been raped earlier that morning in her residence and that she had “reported the rape to the Lauderhill Police Department.” The rape victim’s “description of her assailant matched the Defendant’s physical description.” Her description of some of the tools and clothing used also matched what was found in the Honda the defendant had the keys to.
Lauderhill Police Department was notified that Sunrise Police Department had a suspect for possible sexual battery in their jurisdiction and they send an officer to interview Moncrieffe. The rape victim identified Moncrieffe via a photo line-up. Moncrieffe admitted having consensual sex with the female victim. Moncrieffe was “subsequently charged with sexual battery and burglary with a battery.” The officer from the Lauderhill Police Department transports Moncrieffe to BSO’s Tamarac holding facility. However, the facility does not admit Moncrieffe because he is still under the influence of xanax. Moncrieffe is then transported to the Florida Medical Center where he escapes while still in the custody of the officer from the Lauderhill Police Department.
The 4th DCA noted that the officers involved acknowledged that their police departments were “independent municipal police departments” and that they “could go outside their city to make an arrest only if they are in hot pursuit or have an arrest warrant; neither circumstance was present here.” The State argued “that the defendant could properly be transported from one jurisdiction to another based on cooperative efforts of the officers from different jurisdictions during the investigation.” However, the 4th DCA stated that “the state did not introduce any mutual aid agreements that were in existence at the time of the defendant’s arrest which purportedly provided legal authority for a Lauderhill officer to make a warrantless arrest of the defendant outside of his jurisdiction.”
The 4th DCA found that the Lauderhill police officer, “a municipal police officer acting under the color of his office, exceeded his authority by taking the defendant into custody outside the territorial limits of the officer’s jurisdiction without a warrant.” Further, “the fact that there may have been probable cause to arrest the defendant is not controlling.” The 4th DCA found that “because the defendant was not in the lawful custody of the Lauderhill Police Department at the time he fled, we reverse his conviction and sentence for escape and remand with directions for discharge as to this charge.”
Assistant Attorney General Joseph Tringali resented the state.
[Moncrieffe v. State, 03/16/11]
Opinion:
Fifth District Court of Appeal
“[a] driver of a stolen vehicle does not possess standing to challenge the search of the vehicle.” State v. Singleton, 595 So. 2d 44, 45 (Fla. 1992).
State v. Gentry, 5D10-2250. Opinion filed March 11, 2011.
The State appealed an order granting Gentry’s “pre-trial motion to suppress evidence seized pursuant to a vehicle stop.” The State argued that “the trial court erred in concluding that the defendant possessed standing to challenge the legality of the search of the vehicle since it was stolen.”
Gentry was charged by information with grand theft of a motor vehicle, possession of a schedule IV substance, and driving without a driver’s license. He filed “a pre-trial motion to suppress evidence seized pursuant to a vehicle stop and search” arguing “the investigating officer did not have a well-founded suspicion that the defendant, who was operating the vehicle, was committing, had committed, or was going to commit a crime, and, thus, the stop of the vehicle was illegal.” At the suppression hearing, it was revealed that Gentry was observed by Sergeant Currie at 4:00 a.m., for approximately 20 minutes with his brakes engaged at a four-way stop sign. Knowing that defendant was not in the Holly Hill jurisdiction, Sergeant Currie contacted Officer Blowers of the Daytona Beach Police Department and told him what he observed. Officer Blowers arrived and observed Gentry in the vehicle. When Gentry started to drive away, Officer Blowers “activated his emergency lights and conducted a traffic stop of the vehicle.” Gentry did not have a valid driver’s license, he was arrested, handcuffed and placed in Officer Blowers patrol vehicle. The officers searched the vehicle, seized several items and “also discovered that the vehicle was stolen.” “The prosecutor argued that suppression of the items seized pursuant to the search of the vehicle was not warranted because the defendant lacked standing to contest the search since the vehicle was stolen.” Based on Arizona v. Gant, 129 S. Ct. 1710 (2009), the trial court found there “was reasonable suspicion to stop the driver, approach him, ask for a driver’s license, and then make an arrest when he found that there was no driver’s -- that Mr. Gentry did not have a driver’s license.” However, based on Gant and State v. K.S., 28 So. 3d 985 (Fla. 2d DCA 2010), the trial court granted Gentry’s suppression motion because he had been arrested for no valid driver’s license, was handcuffed and in the patrol car, where he had no access to the vehicle.
The 5th DCA found that “[a] driver of a stolen vehicle does not possess standing to challenge the search of the vehicle.” State V. Singleton, 595 So. 2d 44, 45 (Fla. 1992)(citing Rakas v. Illinois, 439 U.S. 128 (1978)).
It was noted that Gentry did acknowledge he lacked standing to challenge the search of the stolen vehicle, “but he maintains that the trial court’s suppression order should be affirmed under the tipsy coachman doctrine,” arguing Officer Blowers “lacked the requisite reasonable suspicion to stop the vehicle.”
The 5th DCA cited to Bailey v. State, 319 So. 2d 22, 26 (Fla. 1975), where “[t]he Florida Supreme Court has recognized that an officer is justified in stopping a vehicle to determine the reason for the vehicle’s unusual operation.” The 5th DCA also looked to its own determinations and found that “under the totality of the circumstances, Officer Blowers’ suspicion that the defendant may have been impaired or ill was reasonable and, thus, justified the investigatory stop of the defendant’s vehicle” and reversed the trial court’s order granting the suppression motion.
Assistant Attorney General Carmen Corrente represented the state.
[State v. Gentry, 03/11/11]
Opinion:
Fundamental error; defendant convicted of crime not charged in information.
Reddick v. State, 5D09-4503. Opinion filed March 11, 2011.
Reddick, convicted and sentenced on the charge of aggravated battery and discharging a firearm in public, appealed his conviction and sentence arguing “the trial court fundamentally erred by instructing the jury on a theory of the crime of aggravated battery that was not charged in the information.” “Specifically, the defendant argues that the trial court erred in instructing the jury on the elements of aggravated battery by use of a weapon, rather than aggravated battery due to great bodily harm as was charged in the information.”
Agreeing with Reddick, the 5th DCA reversed and remanded for a new trial.
NOTE: J. Cohen concurred stating “there are two ways the State could have charged Reddick with aggravated battery.”
- It is obvious the State intentionally avoided charging Reddick with aggravated battery through the use of a deadly weapon. However, when the trial court reviewed the proposed jury instructions, the State made no effort to correct the erroneous instruction, despite having drafted an information with a specific goal in mind. This is not a case where the defense was on notice of the charge, despite an inartfully drafted information or indictment. I agree that reversal for a new trial is required.
[Reddick v. State, 03/11/11]
Opinion: