Office of Attorney General Pam Bondi
Criminal Law Alert
__________________________________________________________________
Date issued: 02/01/2010
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
Dan Schweitzer @ NAAG.org summarizes what he calls the “most noteworthy” of the USSC’s revised version of Rules of the Court.
The U.S. Supreme Court announced that it had adopted a revised version of the Rules of the Court, which will take effect on February 16, 2010. Here is a link to the revised Rules: http://www.supremecourtus.gov/ctrules/2010revisedrules.pdf
Most of the changes are technical in nature. The most noteworthy ones are:
● The word limit for Reply Briefs on the merits has been changed from 7,500 to 6,000. When the Court changed from page limits to word limits in 2007, it inadvertently reduced the Reply Briefs’ word limit to an amount that left them far longer than they had previously been. The new revision returns them to their former length (namely, 40% the length of the opening merits briefs). [Revised Rule 33.1]
● Covers of briefs must now include the e-mail address of the counsel of record. [Revised Rule 34.1(f)]
● “Every appendix to a document must be preceded by a table of contents that provides a description of each document in the appendix.” [Revised Rule 34.4]
● Another revised rule addresses apparent confusion in how statutes should be cited. Some statutes are commonly cited by the sections of the original enactment, rather than the sections as codified in the U.S. Code. The rules now state that “[a]ll references to a provision of federal statutory law should ordinarily be cited to the United States Code, if the provision has been codified therein. . . . Additional or alternative citations should be provided only if there is a particular reason why those citations are relevant or necessary to the argument.” [Revised Rule 34.5]
● The Court clarified that the recently added requirement that amici curiae provide 10-day notice to all parties only applies to amicus briefs filed at the certiorari stage. [Revised Rule 37.3(a)]
● Finally, the Court laid out when the new Rules will apply. Except where the Court finds it to be infeasible, the revised “Rules govern all proceedings after their effective date,” here, February 16, 2010. However, briefs may comply with the prior version of the rules “in any case in which a petitioner or appellant has filed its brief on the merits prior to” February 16. [Revised Rule 48] , 08-9156. Decided, 2010.
Revisions:
United States Court of Appeal
Eleventh Circuit
Eleventh Circuit
District Court erred dismissing § 2254 petition; case reversed and remanded for further proceedings.
Thompson v. Secretary, DOC, et. al., 08-10540. Decided January 27, 2010.
Thompson, appealed the “district court’s dismissal of his 28 U.S.C. § 2254 petition as untimely under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” The 11th Circuit granted a Certificate of Appealability on the following issue:
Whether, in light of Delancy v. Fla. Dep’t of Corr., 246 F.3d 1328,
1330-31 (11th Cir. 2001), the district court erred by dismissing
[Thompson]’s 28 U.S.C. § 2254 petition as time-barred where it
determined that a state petition for a writ of habeas corpus, which
ultimately was dismissed for using the wrong statutory vehicle, was
not “properly filed” pursuant to 28 U.S.C. § 2244(d)(2).
The 11th Circuit reversed and remanded for further proceedings concluding “that the district court erred in dismissing the § 2254 petition as untimely.”
- Based on the foregoing, we conclude that the district court incorrectly dismissed Thompson’s federal habeas petition as untimely based on its erroneous determination that Thompson’s September 2004 and December 2005 state habeas corpus petitions were not “properly filed” within the meaning of § 2244(d)(2). As the latter petitions met all the state procedural and filing requirements on their face, Thompson was entitled to statutory tolling of the one-year limitations period under § 2244(d)(2) during the pendency of those petitions.
[Thompson v. Secretary, DOC, 01/27/10]
Assistant Attorneys General Ann Phillips and Robin Compton represented the state.
Opinion:
United States District Court
Southern District - Miami
Southern District - Miami
Amended Motion for Certificate of Appealability Denied.
Franqui v. State, 07-22384-CIV-Moore. Decided January 28, 2010.
Death row inmate, Franqui, raised several issues when motioning the court for a Certificate of Appealability (COA).
In one issue, Franqui asserted his counsel was ineffective for “failing to present evidence concerning the voluntariness of his confession during the penalty phase.” Franqui relied on Crane v. Kentucky, 476 U.S. 683 (1986), where “the United States Supreme Court held that refusing to allow a defendant to present evidence concerning the circumstances of his interrogation and confession in his case-in-chief, after the trial judge had ruled that the confession was voluntary, deprived the defendant of his Sixth and Fourteenth Amendment rights.”
The District Court determined that the instant case was controlled by Oregon v. Guzek, 546 U.S. 517 (2006), and not Crane. The Guzek Court held “that a defendant does not have a constitutional right to present evidence at the penalty phase that only serves to cast residual doubt on the conviction.” Id. at 525. The District Court concluded that this particular claim in Franqui’s COA “turns in part on whether the evidence his counsel failed to present would do more than merely cast residual doubt on his convictions, and whether the failure to do so was tantamount to a deprivation of counsel.” Even if this were the case, Franqui was “still required to demonstrate that the error prejudiced him in a way that deprived him of a fair trial.” The District Court concluded that “even assuming that such evidence could have served a proper purpose beyond casting doubt on the conviction, reasonable jurists could not debate that this counsel’s failure to do so was not a defect of sufficient gravity to meet Strickland’s first prong.” “Given the uncontroverted evidence that Franqui shot Officer Bauer, who then fell from a covered position and was shot and killed by Gonzalez, any evidence pertaining to the voluntariness of the confession would contribute little to how the crime was committed.” The District Court held that Franqui was not entitled to a COA on this claim because Franqui failed to “explain how he was prejudiced by counsel’s failure to raise this issue, and this Court is unable to ascertain how such prejudice may have occurred.”
Assistant Attorney General Sandra Jaggard represented the state.
[Franqui v. State, 01/28/10]
Opinion:
IN RE: Amendments to the Local Rules.
USDC – Southern District, rule amendments shall take effect on April 15, 2010.
Southern USDC Local Rule Amendments:
Florida Supreme Court
Florida Supreme Court affirms denial of successive postconviction relief motion; stay lifted.
Johnston v. State, SC09-839. Opinion filed January 21, 2010.
Johnston, prisoner under sentence of death, appealed the order denying his fourth and fifth successive 3.851 postconviction relief motions.
The Florida Supreme Court affirmed “the postconviction court’s orders denying Johnston’s successive motions for postconviction relief.”
The Court found no merit in Johnston’s newly discovered evidence claim. The Court agreed with the State’s contention that “if a new trial is warranted, the trial court must consider all admissible evidence, which in this case includes the new DNA evidence matching Johnston’s profile.” The Court concluded that “the trial court applied the correct newly discovered evidence standard and determined, in light of all the now available and admissible evidence, that the newly discovered evidence would not exonerate him.” The Court lifted the stay it imposed in May 2009.
Assistant Attorney General Kenneth Nunnelley represented the state.
[Johnston v. State, 01/21/10]
Opinion:
B.O.L.O. - - - B.O.L.O. - New Cases Review by Florida Supreme Court. Summary in The Florida Law Weekly, Volume 35, Number 4, January 29, 2010.
Stang v. State, __ So. 2d __, 34 Fla. L. WeeklyD1541a (Fla. 2DCA 2009). Supreme Court No. SC09-1409 (State v. Stang). Order dated January 25, 2010. Oral argument set for April 7, 2010. Criminal law – Sentencing – Void Sentence – Where initial sentence gave defendant credit for time served on multiple counts, but amended sentence, which was entered without notice to defendant, his counsel, or the state, gave defendant credit for time served against his total sentence, the amended sentence was void – Amended sentence was void because it was entered during pendency of direct appeal, it was entered in violation of defendant’s due process rights, and it violated defendant’s double jeopardy rights by rescinding jail credit previously awarded – Because initial sentence has expired, defendant is entitled to writ of habeas corpus and immediate release.
First District Court of Appeal
Motion to dismiss granted in error; traverse filed by State created dispute over material facts.
State v Hudson, 1D09-3214. Opinion filed January 29, 2010.
Hudson, charged with aggravated assault with a deadly weapon, moved to dismiss claiming “he acted out of self defense and emphasized that the victim had recanted earlier statements given to the police.” Hudson claimed “any statements made by the victim to the contrary were fabrications and attached an affidavit from the victim in which she corroborated his version of events.” The State filed a traverse, however, the trial court “granted the motion to dismiss, finding the material facts were not in dispute and the undisputed facts did not establish a prima facie case of guilt.”
Hudson claimed “he had not threatened or shot at the victim with a firearm,” and that any action he took was an attempt to stop the victim from a violent confrontation with him. The State’s traverse “denied these allegations and identified a material issue of fact, namely that the victim had earlier stated the defendant had ‘shot a 9mm handgun at her twice [] and knocked her to the ground and held the gun to her head.’”
The 1st DCA held that “[v]iewing, this allegation in a light most favorable to the State, the traverse created a dispute over material facts and the trial court erred in granting the motion to dismiss.” See State v. Terma, 997 So. 2d 1174, 1177-78 (Fla. 3d DCA 2008) (stating the State is entitled to the most favorable construction of the facts possible); State v. Ortiz, 766 So. 2d 1137, 1141-42 (Fla. 3d DCA 2000) (stating that when considering a Rule 3.190(c)(4) motion, “the [S]tate is entitled to the most favorable construction of the evidence with all inferences being resolved against the defendant”).
The 1st DCA reversed and remanded for further proceedings.
Assistant Attorney General Thomas Duffy represented the state.
[State v. Hudson, 01/29/10]
Opinion:
Second District Court of Appeal
Trial court erred denying motion for mistrial; prosecutor improperly commented on defendant’s right to remain silent.
Evans v. State, 2D08-3579. Opinion filed January 20, 2010.
Evans appealed his judgment and sentence for trafficking in cocaine asserting the State failed to establish that Evans had constructive possession of the cocaine. Finding no merit to this argument, the 2nd DCA, concluded the “surrounding circumstances of Evans’ location, combined with the location and amount of narcotics and drug paraphernalia found in the east bedroom, provided sufficient justification for a rational jury to conclude beyond a reasonable doubt that he constructively possessed the drugs.” Further, the 2nd DCA concluded that the “State met its threshold burden establishing a reasonable theory that, upon being warned of the police raid, Evans ran out of the east bedroom to the bathroom across the hall in an attempt to fool police into believing that he was merely using the bathroom at the time of the police’s search of the premises.” And while it was possible that Evans’ theory that someone else threw the drugs in the east bedroom, the 2nd DCA noted that the theory “is merely an alternate interpretation and ‘it becomes the jury’s duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt.’” Thus, “Evans is not entitled to relief on this ground.”
Evans also argued “the trial court erred denying his motions for a mistrial after the State improperly commented on his right to remain silent during closing arguments.” The 2nd DCA noted that “the State is prohibited from commenting on the defendant’s failure to produce evidence to refute an element of the crime ‘because doing so could erroneously lead the jury to believe that the defendant carried the burden of introducing evidence.’” Jackson v. State, 575 So. 2d 181, 188 (Fla. 1991); see also Fla. R. Crim. P. 3.250. The 2nd DCA found the “State’s comments are susceptible of being interpreted by the jury as an impermissible comment on Evans’ right to remain silent or his failure to mount a defense.” Further, “we cannot say beyond a reasonable doubt that the State’s comments on Evans’ right to remain silent did not contribute to the jury’s finding of guilt.” The 2nd DCA reversed in part, affirmed in part, and remanded for a new trial.
NOTE: Judge Wallace concurred in part with the majority, however, he wrote a lengthy dissenting opinion regarding his belief “the evidence was insufficient to establish Evans was in constructive possession of the cocaine found in the east bedroom of Kutner’s residence.”
Assistant Attorney General Jonathan Hurley represented the state.
[Evans v. State, 01/20/10]
Opinion:
Postconviction court abused its discretion by proceeding with evidentiary hearing without defendant present.
McDowell v. State, 2D08-3938. Opinion filed January 20, 2010.
McDowell appealed the nonsummary denial of his 3.850 postconviction relief motion arguing “the postconviction court erred by refusing to permit him an opportunity to be present to testify because there were disputed factual issues about which McDowell had personal knowledge.” The evidentiary hearing was set to address McDowell’s claims of ineffective assistance of trial counsel.
McDowell was in federal custody at the time of the evidentiary hearing. Defense counsel informed the postconviction court she was unsuccessful in having McDowell transported to the hearing and that “she needed McDowell present . . . so he could provide his testimony.” The State agreed that McDowell needed to be present. However, the postconviction court decided to proceed with the hearing and “took testimony from McDowell’s trial counsel.” Defense counsel renewed her objection. The postconviction court denied McDowell’s motions and even “addressed the issue of McDowell’s presence by concluding
- that "[b]ecause the presence of a defendant is not always required, and the fact that [McDowell] was represented by counsel, who was able to confer with her client prior to the hearing, the Court has decided in its discretion that [McDowell's] presence was not required in this case." The postconviction court also concluded that McDowell's allegations were unambiguous and that his trial counsel had a clear recollection of the case.
The 2nd DCA noted that McDowell “was neither permitted to present his own testimony in contradiction to trial counsel’s testimony nor was he given an opportunity to assist his postconviction counsel in cross-examining his trial counsel.” The 2nd DCA concluded that “because there were disputed factual issues, the postconviction court’s failure to permit McDowell an opportunity to be present was an abuse of discretion.” The 2nd DCA reversed and remanded for a new evidentiary hearing.
- McDowell must be permitted an opportunity to be present at this hearing to testify and cross-examine his trial counsel concerning McDowell's allegations that trial counsel misadvised McDowell about his plea and provided ineffective assistance by failing to raise certain issues below.
Assistant Attorney General Sonya Horbelt represented the state.
[McDowell v. State, 01/20/10]
Opinion:
Fourth District Court of Appeal
Trial court erred charging jury on attempted burglary; no evidence to support the attempt.
Jackson v. State, 4D08-2497. Opinion filed January 20, 2010.
Jackson was found guilty of attempted burglary, as a lesser included offense, and possession of burglary tools. He appealed arguing “the trial court erred in charging the jury on attempted burglary when there was no evidence to support the attempt.”
Jackson was found by police in an “uninhabited duplex that had been boarded up and scheduled for demolition” wearing a “tool belt containing pliers, screw drivers, and a hammer,” cooper wire on the ground around his feet and the walls ripped open. Jackson was arrested, “read his Miranda warnings,” and waived his rights. Miranda v. Arizona, 384 U.S. 436 (1966). He told the officers he stripped the copper wire but did not know it was illegal. The state requested, at the charge conference, the jury be instructed on attempted burglary. Jackson “objected and requested that only trespass be charged as a lesser included offense.” In closing, Jackson, who represented himself, argued “he committed a trespass, but not a burglary.” The jury was instructed on attempted burglary and Jackson objected to the trial court’s instruction.
The 4th DCA noted that, in pertinent part, Florida Rule of Criminal Procedure provides:
- On an indictment or information on which the defendant is to be tried for any offense the jury may convict the defendant of:
- (a) an attempt to commit the offense if such attempt is
an offense and is supported by the evidence. The
judge shall not instruct the jury if there is no evidence to
support the attempt and the only evidence proves a
completed offense . . . .
(Emphasis added). Because of the rule’s express prohibition, the trial court does not have the discretion to instruct on an attempt where the only evidence proves a complete offense. See Wilson v. State, 635 So. 2d 16, 17 (Fla. 1994).
The evidence established that Jackson was caught in the house, however, “[t]he single contested issue was whether he entered the house with the intent to steal something. If his intent was to steal, then a burglary was committed.” If his intent was to look around, “then he committed a trespass.” The 4th DCA concluded there was “no evidence that Jackson attempted a burglary but did not complete it.” The 4th DCA referred to Pepitone v. State, 846 So. 2d 640 (Fla. 2d DCA 2003), a similar case where the 2nd DCA held the trial court erred by instructing the jury on attempted burglary because the evidence established that Pepitone entered the house but nothing was taken. As the 2nd DCA did in Pepitone, the 4th DCA reversed “the attempted burglary conviction” and remanded “with directions to enter a judgment and sentence for trespass.”
Assistant Attorney General Diane Medley represented the state.
[Jackson v. State, 01/20/10]
Opinion:
Fifth District Court of Appeal
Intellectual capacity of victim never consider; trial court erred finding child victim not competent to testify.
State v. Karelas, 5D09-3398. Opinion filed January 22, 2010.
The State petitioned for Certiorari review of the lower court’s order “precluding the thirteen-year-old victim in this molestation case from testifying at trial.” “The lower court found that the victim was not competent to testify because she had been the subject of improper and suggestive question by law enforcement officers.” The State challenged the finding, “contending that the issue involves credibility, not competence, and is properly reserved for determination by the trier of fact.”
Officers were called to a lake front home after one of the guests, an off-duty Alachua County sheriff’s officer, witnessed Karelas “humping the victim,” who was eleven at the time of the incident. The officers and the mother “questioned the victim for several hours.” “The propriety of this questioning” became the center of the dispute. A forensic psychologist testified it was his opinion that “the victim’s recollection had been ‘irreparable polluted’ to the point that she could not competently testify.” The trial court found the victim not competent to testify. The trial court relied heavily on State v. Michaels, 642 A.2d 1372 (N.J. 1994), where that court “established a procedure for excluding a child witness’s testimony unless the state can establish that the suggestive interview did not affect the witness’s ability to testify truthfully.”
The 5th DCA, like a majority of jurisdictions, rejected the Michaels conclusion. The 5th DCA noted that “[t]he fact that suggestive questions might have been posited is only one factor that bears on the reliability of the testimony.” The record showed that the trial judge based his opinion to disqualify the witness on “the opinion of an expert who, likewise, never met or interviewed the witness, and offered no opinion about issues of intellectual capacity.” The 5th DCA found that “the reliability of the victim’s testimony can only be properly assessed after a trial on the merits during which the trier of fact may consider all of the facts and circumstances.” The 5th DCA granted the petition and quashed the lower court’s order precluding the victim in the instant case from testifying.
[State v. Karelas, 01/22/10]
Opinion:
Judge abused his discretion; no exceptional circumstances found for exclusion of state’s witness.
State v. Adorno, 5D09-3319. Opinion filed January 22, 2010.
The State petitioned for a writ of certiorari “quashing the trial court’s September 1, 2009, order which excluded a key State witness from testifying at Respondent’s trial, based on the State’s commission of a Richardson violation.” Richardson v. State, 246 So. 2d 771 (Fla. 1971).
Adorno conceded error and the 5th DCA granted the certiorari petition and quashed the order of the trial court excluding the State’s witness.
We are not unsympathetic to a trial court's need to manage a docket, frustrated
by last minute delays on both sides, often occasioned by a lack of preparation.
However, exclusion of either a State or defense witness is an extreme sanction
reserved for exceptional circumstances not found in the instant case.
Assistant Attorney General Wesley Heidt represented the state.
[State v. Adorno, 01/22/10]
Opinion: