Office of Attorney General Pam Bondi
Criminal Law Alert
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Date issued: 04/06/2010
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
Non-citizen client must be advised that guilty plea carries risk of deportation. Summary provided by SCOTUS.
Padilla v. Kentucky, 08-651. Decided March 31, 2010.
The Court held that counsel provides constitutionally deficient representation under the first prong of Strickland v. Washington, 466 U.S. 668 (1984), if she fails to advise her non-citizen client whether a plea of guilty carries the risk of deportation. More precisely, where deportation is the clear consequence of pleading guilty, counsel has a duty to advise the defendant of that fact; where the deportation consequences of a plea are unclear, counsel must advise the defendant that pleading guilty may carry adverse immigration consequences. The Court did not extend its holding to other collateral consequences of pleading guilty, finding that deportation has unique consequences and is intimately related to the criminal process. And the Court did not address whether petitioner is entitled to relief, which depends on whether he can show prejudice, an issue the lower courts can address on remand.
Opinion:
Court rejects Sixth Amendment habeas challenge to the representation of African Americans in the jury pool.
Berghuis v. Smith, 08-1402. Decided March 30, 2010. Summary provided by SCOTUS.
Diapolis Smith was convicted of second-degree murder in Kent County, Michigan. All twelve of the jurors who convicted him were white; Mr. Smith and the thirty-six other witnesses to the shooting in question were African American. The venire panel from which the jury was drawn included no more than three African-Americans in its sixty to one hundred members. Mr. Smith appealed his conviction on the ground that he had been denied his Sixth Amendment right to a jury drawn from a fair cross-section of the community. The Supreme Court had announced that right in Taylor v. Louisiana (1975), and in Duren v. Missouri (1979) it held that a criminal defendant must establish three things to demonstrate a prima facie violation: that (1) a “distinctive” group (2) is not fairly and reasonably represented in jury pools because of (3) “systematic exclusion” from the jury selection process. After the Michigan Supreme Court rejected Mr. Smith’s arguments, he sought federal habeas relief, which the Sixth Circuit granted.
The Supreme Court reversed. In a unanimous decision, it held that Mr. Smith had failed to establish that the decision of the Michigan Supreme Court “involved an unreasonable application of clearly established Federal law as determined by the Supreme Court of the United States” — the standard of review for habeas petitions after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996.
Opinion:
Certiorari Denied:
Title: Peterka v. McNeil, 09-8971. Certiorari denied April 5, 2010.
Docket: 09-8971
Issue: Whether this Court has jurisdiction to review the Eleventh Circuit’s decision denying an application to file a second or successive habeas petition and if so, should it review a decision that does not conflict with any other circuit court decisions?
United States District Court
Northern District/Tallahassee Division
Northern District/Tallahassee Division
All challenges to conviction and sentence are unfounded; defendant lost because of the overwhelming weight of the evidence.
Branch v. McDonough, 4:06cv486-RH. Decided March 30, 2010.
The Northern District issued an order denying Branch habeas relief. Branch who was convicted and sentenced to death for “sexually battering and murdering a college student who was walking to her car alone at night on a college campus,” argued several issues, “including alleged errors by the trial judge and ineffective assistance of counsel.” The Northern District noted that “the trial judge conducted a full and fair trial that was remarkably free of error” and that Branch’s “attorney performed quite well.” Further, “Mr. Branch lost not because of any ruling by the trial judge or any deficiency in his attorney’s performance but because of the overwhelming weight of the evidence.” The Northern District concluded that Branch’s “challenges to the conviction and sentence were unfounded.”
In a separate order, the Northern District issued a certificate of appealability to one issue. The issue is “whether Mr. Branch is entitled to relief based on the prosecutor’s references to Mr. Branch’s failure to disclose his version of the facts prior to his testimony at the trial.” Regarding the other issues, a certificate of appealability is denied.
Assistant Attorney General Thomas Winokur represented the state.
[Branch v. McDonough, 03/30/10]
Order Denying the Petition:
Ninth Judicial Circuit Court / Orange County
UPDATE: Johnston not mentally retarded.
State v. Johnston, 1983-CF-5401, Ninth Judicial Circuit/Orange County. Decided April 5, 2010.
The Ninth Judicial Circuit, following an evidentiary hearing, held that David Eugene Johnston “is not mentally retarded.”
The Ninth Judicial Circuit found that Johnston “did not meet his burden of establishing the second prong of the test for mental retardation . . .” and further held that “it was not established that there was onset of mental retardation prior to age 18 wherein Defendant’s first two test scores were discounted and his IQ score at age 14 was too high to place him in the mental retardation range.”
Assistant Attorney General Kenneth Nunnelley represented the state.
Order:
Florida Supreme Court
“Section 924.34 does not permit an appellate court to direct entry of a conviction for a crime where the jury has not determined all of the elements of that crime beyond a reasonable doubt.”
Coicou v. State, SC04-637. Opinion filed April 1, 2010.
The Third District Court of Appeal certified the following question to be of great public importance in Coicou v. State, 867 So. 2d 409 (Fla. 3d DCA 2003):
- MAY AN APPELLATE COURT DIRECT THE ENTRY OF A CONVICTION FOR ATTEMPTED SECOND-DEGREE MURDER WHERE THE JURY’S VERDICT DOES NOT REFLECT A FINDING THAT THE DEFENDANT ACTED WITH A DEPRAVED MIND?
The Court further noted:
- Section 924.34 does not permit an appellate court to direct entry of a conviction for a crime where the jury has not determined all of the elements of that crime beyond a reasonable doubt. To do so would amount to a violation of the defendant’s Sixth Amendment right to a trial by jury. See id. at 841, 844. Accordingly, pursuant to section 924.34, Florida Statutes (2001), it was improper for the Third District to remand to the trial court with directions to enter a judgment of conviction for attempted second-degree murder. The proper remedy is remand to the trial court for retrial on any lesser offenses contained in the charging instrument and instructed on at trial. See State v. Wilson, 680 So. 2d 411, 412 (Fla. 1996).
The Court held that a “case-by-case determination is warranted when deciding whether attempted second-degree murder is a permissive lesser-included offense of attempted first-degree felony murder.”
Bureau Chief Richard Polin and Assistant Attorney General Timothy Thomas represented the state.
[Coicou v. State, 04/01/10]
Opinion:
First District Court of Appeal
By finding defendant guilty of violating section 316.1935(2), “the jury made a finding on every element of the lesser-included offense under subsection (1).”
Slack v. State, 1D07-6305. Opinion filed March 25, 2010.
On motion for rehearing and/or clarification, the 1st DCA withdrew its prior opinion dated January 12, 2010, where it concluded that “[b]y neglecting to bring forth any evidence that Deputy Stone’s vehicle contained agency insignia or other jurisdictional markings, the state failed to make out a prima facie case of fleeing or attempting to elude a law enforcement officer in violation of section 316.1935(2).” In that prior decision, the 1st DCA reversed holding that “the trial court erred by denying Slack’s motion for judgment of acquittal.”
Following a motion for rehearing and/or clarification, 1st DCA still “agrees that the trial court erred in denying the motion for judgment of acquittal and reverses for this reason,” however, the 1st DCA remanded “for entry of a judgment of conviction for violation of section 316.1935(1), Florida Statutes (2006), on the authority of section 924.34, Florida Statutes (2009).” “By finding Mr. Slack guilty of violating section 316.1935(2), the jury made a finding on every element of the lesser-included offense under subsection (1),” which, the 1st DCA noted “was punishable in the same fashion.”
Assistant Attorney General Joshua Heller represented the state.
[Slack v. State, 03/25/10]
Opinion:
Third District Court of Appeal
Section 775.21 “expresses no intention that the consequence of a failure to make a written sexual predator finding at the time of sentencing is a waiver of the right to make the finding in the future.”
Cuevas v. State, 3D07-184. Opinion filed March 31, 2010.
Cuevas appealed a final order “designating him a sexual predator under section 775.21, Florida Statutes (2006).”
The record revealed that Cuevas “pled guilty to charges of lewd and lascivious molestation on a child under 12 and lewd and lascivious conduct on a child under 16.” He was sentenced to 56 months in prison and was not designated as a sexual predator at the time he was sentenced. A motion to designate him a sexual predator was filed just prior to the end of his incarceration. The hearing was scheduled following his release from prison and the trial court granted the motion. Cuevas appealed.
The issue is “whether designation as a sexual predator may be ordered after a defendant has served his sentence and been released (rather than when ‘before the court for sentencing’).” The 3rd DCA noted it has “previously determined that section 775.21 is ‘regulatory and procedural in nature,’ such that the provision does not violate the ex post facto clause or impermissibly modify a criminal sentence or punishment.” Gonzalez v. State, 808 So. 2d 1265, 1266 (Fla. 3d DCA 2002). Further, Cuevas’s case “is not one in which his offense was not a qualifying offense for the sexual predator designation at the time of his sentencing, as occurred in Therrien v. State, 914 So. 2d 942 (Fla. 2005).”
Note: J. Shepherd wrote a lengthy dissent as to why he would have reversed the order on appeal.
Assistant Attorney General Lunar Claire Alvey represented the state.
[Cuevas v. State, 03/31/10]
Opinion:
Fourth District Court of Appeal
Trial court erred admitting photographic evidence; photograph had little or no relevance to issue of sexual abuse.
Farias v. State, 4D08-406. Opinion filed March 31, 2010.
Farias appealed his conviction and sentence for one count of lewd or lascivious molestation of a child under 12. In one issue Farias argued that “the trial court committed reversible error in admitting photographic evidence.” At issue was the admission into evidence of a photograph of the child’s vaginal examination that was preformed at the hospital. Defense objected to the admission of the photograph, however, the trial court “determined that the photograph was relevant to show that someone would not falsely report a sexual assault and thereby subject herself to such an examination.” The victim was only seven at the time of the incident.
The admission of photographs is reviewed under the abuse of
discretion standard. Welch v. State, 992 So. 2d 206, 216 (Fla. 2008).
“The test for admissibility of photographic evidence is relevancy rather
than necessity.” Id. (quoting Douglas v. State, 878 So. 2d 1246, 1255
(Fla. 2004)). For photographic evidence to be relevant, it must logically
tend to prove or disprove a material fact. §§ 90.401–90.402, Fla. Stat.
(2008). Even if the evidence is relevant, it may be inadmissible under the
section 90.403 balancing test, if the “probative value is substantially
outweighed by the danger of unfair prejudice, confusion of issues,
misleading the jury, or needless presentation of cumulative evidence.”
Further, the trial court may decline to admit photographs if it determines
that the “gruesomeness of the portrayal is so inflammatory as to create
an undue prejudice in the minds of the jur[ors] and [distract] them from
a fair and unimpassioned consideration of the evidence.” Welch, 992 So.
2d at 216 (quoting Douglas, 878 So. 2d at 1255) (alterations in original).
The 4th DCA determined the photograph “had little or no relevance” because “it did not tend to prove or disprove a material fact that was in dispute in this case.” The only issue before the jury was whether Farias molested the child “and the photo showing no injuries had no relevance to this issue.” The 4th DCA held it was error to admit the photograph because the it “had minimal probative value, and its potential for offending the jury’s sensibilities and evoking sympathy for the victim was substantial.” Further, the 4th DCA was unable to find the error harmless because “we cannot say beyond a reasonable doubt that the improperly admitted photograph did not affect the jury’s verdict.” The 4th DCA reversed and remanded for a new trial.
Assistant Attorney General Melanie Dale Surber represented the state.
[Farias v. State, 03/31/10]
Opinion: