Office of Attorney General Pam Bondi
Criminal Law Alert
__________________________________________________________________
Date issued: 02/21/2011
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
Petitions: Re-list Watch. Summary by John Elwood @ SCOTUS.
Re-list watch posted on January 24, 2011.
Title: Sheets v. Simpson (relisted after 1/7 and 1/14 Conferences; apparent re-list after 1/21), Docket: 10-458.
Issue(s): (1) Whether a prison inmate is in “custody” for Miranda purposes if law enforcement officers isolate and question him about criminal conduct occurring outside the prison but impose no additional restraints or coercive pressures beyond those inherent in ordinary prison confinement; and (2) whether a police officer violates clearly established Miranda law by advising a defendant who asks him whether a polygraph examination will confirm the veracity of the defendant’s statements that defendant will not have any trouble if his statements are truthful, but that he should terminate the examination and consult an attorney if he is lying.
Florida Supreme Court
“Appellate court should not preclude a trial court from resentencing a defendant to a downward departure if such a departure is supported by valid grounds.”
Jackson v. State, SC09-2383. Opinion filed February 17, 2011.
Issue for review: “whether an appellate court that reverses the imposition of a downward departure sentence must remand for resentencing within the CPC, or whether it may remand for resentencing outside of the CPC.”
The 1st DCA certified its decision in State v. Jackson, 22 So. 3d 817 (Fla. 1st DCA 2009), is in direct conflict with the 3rd DCA’s decisions in State v. Williams, 20 So. 3d 419 (Fla. 3d DCA 2009), State v. Davis, 997 So. 2d 1278 (Fla. 3d DCA 2009), and State v. Berry, 976 So. 2d 645 (Fla. 3d DCA 2008).
The review concerns Jackson’s resentencing under the Criminal Punishment Code (CPC). Jackson pled guilty to two noncapital offenses in 2008. The trial court, after the sentencing hearing, “imposed a downward departure sentence, which was reversed on appeal because the trial court failed to file written reasons for the original departure sentence and the oral reason it provided at sentencing was determined to be invalid.”
The Court concluded that “on remand for resentencing a trial court is permitted to impose a downward departure when the trial court finds a valid basis for departure as prescribed under the Code.” The Court quashed the 1st DCA’s decision in Jackson and approved the decisions of the 3rd DCA in Williams, Davis, and Berry.
Bureau Chief Trisha Meggs Pate and Assistant Attorney General Heather Ross represented the state.
NOTE: The State will seek clarification as to whether the decision in Shull v. Dugger, 515 So. 2d 748 (Fla. 1987), has been overruled.
[Jackson v. State, 02/17/11]
Opinion:
“Principles set out in Vasilinda should continue to apply if and when a case is returned to the originating court.” Vasilinda v. Lozano, 631 So. 2d 1082 (Fla. 1994).
Hernandez v. State, SC09-2225. Opinion filed February 17, 2011.
Issue for review: “to resolve the issue of which district court of appeal has appellate jurisdiction when a defendant has been tried and convicted in a trial court within the jurisdiction of one district court, but where the judgment and sentence have been entered in a trial court within the jurisdiction of a different district court.”
The 3rd DCA, in Hernandez v. State, 34 Fla. L. Weekly D2269 (Fla. 3d DCA Nov. 4, 2009), denied “appellant’s motion to transfer his appeal to another district court, but certified that its decision is in conflict with Cole v. State, 280 So. 2d 44 (Fla. 4th DCA 1973), and Stanek-Cousins v. State, 896 So. 2d 865 (Fla. 5th DCA 2005).”
Applying the principles set forth in Vasilinda, the Court approved the decision of the 3rd DCA in Hernandez and disapproved the decision of the 4th DCA in Cole and the 5th DCA in Stanek-Cousins.
- We hold that once an order transferring venue has been entered by the transferor court and the court file has been received by the clerk of the transferee court, appellate jurisdiction becomes vested in the district court with jurisdiction over the transferee court for all subsequent matters in the case. This rule applies both to an initial transfer of venue and to any subsequent transfer back to the court of original jurisdiction.
Bureau Chief, Assistant Attorney General Richard Polin represented the state.
[Hernandez v. State, 02/17/11]
Opinion:
Court affirms denial of 3.850 postconviction relief motion and denies habeas petition.
Taylor v. State, SC09-1382. Opinion filed February 11, 2011.
Taylor appealed the denial of his amended 3.850 postconviction relief motion challenging his capital murder conviction and sentence of death where he raised several issues.
Taylor raised seven claims of ineffective assistance of counsel. The Court concluded that “Taylor failed to satisfy his burden to demonstrate ineffectiveness on any of these claims.” For instance, the Court determined that “[t]he postconviction court correctly found that trial counsel was not ineffective for failing to request a Frye hearing to challenge the DNA evidence.” Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Taylor’s argument relied on “case law that developed after the conclusion of the trial” and the Court noted that it has previously made clear that “trial counsel cannot be held ineffective for failing to anticipate the change in the law.”
In another claim, Taylor asserted “counsel was ineffective for failing to request a Richardson hearing when Zeigler’s name was revealed at trial.” Richardson v. State, 246 So. 2d 771 (Fla. 1971). Shirley Zeigler’s initials were “on the calculated fragment report that was used by Dr. Pollock at Taylor’s initial trial.” Dr. Pollock was the state’s DNA expert and Dr. Libby (defense DNA expert) alleged problems associated with the testing procedures Dr. Pollock utilized. The Court noted trial counsel was aware of Zeigler’s existence once they received the calculated fragment report with her initials on it. While trial counsel may not have known her full name, “the State certainly did not inadvertently or willfully conceal her identity.” Therefore, trial counsel “cannot be said to have been deficient in failing to request a Richardson hearing when such a hearing was not appropriate under the circumstances.” Taylor failed to establish any prejudice. The Court concluded that relief is not warranted for this claim.
The Court affirmed the denial of the 3.850 motion for postconviction relief and denied relief on the habeas petition.
Assistant Attorney General Stephen White represented the state.
[Taylor v. State, 02/11/11]
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 5, February 4, 2011.
STATE v. HACKLEY, __So.3d __, 35 Fla. L. Weekly D2436a (Fla. 1DCA 2010). Supreme Court Case No. SC10-2316 (State v. Hackley). Order dated January 28, 2011. No oral argument. Criminal law--Sentencing--Prison releasee reoffender--Where defendant was originally sentenced as prison releasee reoffender for burglary of conveyance with assault and trial court granted rule 3.800(a) motion to correct illegal sentence and resentenced defendant without PRR designation, trial court's order is affirmed to avoid absurd consequence of encouraging a defendant who has already committed burglary with assault to put victim in physical danger by committing a battery to avoid possibility of PRR sentencing--Conflict certified.
STATE v. McMAHON, 47 So.3d 368, 35 Fla. L. Weekly D2486b (Fla. 4DCA 2010). Supreme Court Case No. SC10-2425 (State v. McMahon). Order dated January 28, 2011. Oral argument will be set by separate order. Criminal law--Sentencing--Appeals--Sentencing order imposing legal sentences is not an order appealable by state--Sentence imposed by court was within sentencing guidelines and ultimately a legal sentence, even though trial court improperly initiated plea discussions with defendant--Conflict certified--Trial court's failure to conduct hearing on habitual felony offender status is not an appealable issue for state.
First District Court of Appeal
Trial court erred; once witness admits to a number of prior convictions, prosecutor should not be allowed to ask further questions regarding those convictions.
Stallworth v. State, 1D09-5943. Opinion filed February 7, 2011.
Stallworth appealed his judgment and sentence for trafficking in illegal drugs. Seeking reversal on two grounds, Stallworth alleged: “1) the trial court erred by allowing the State to question a defense witness about his prior convictions; and 2) the State improperly bolstered its law enforcement witness during closing argument.” The 1st DCA affirmed the second ground without comment.
At issue was a police officer who arrested Stallworth after watching Stallworth toss a prescription bottle, containing a controlled substance, from his parked vehicle. The vehicle was parked in front of home of Stallworth’s uncle, Kevin Ducree. The officer testified he saw Stallworth toss this prescription bottle. Stallworth, Ducree and another witness “testified that the bottle was placed there by someone else.” Attempting to impeach Ducree’s credibility, the State questioned Ducree and asked if he had ever been convicted of a felony. Ducree admitted he had and when questioned how many times, Ducree responded numerous times. The State asked: “Would eight times sound right?” Ducree responded: “Could be right.” Over several objections, the State was allowed to continue its questioning of Ducree regarding his prior convictions and the nature of those crimes. The exchange is listed in the opinion.
The 1st DCA noted that pursuant to Section 90.610(1), Florida Statutes, it has held that “the prosecutor is permitted to attack the [witness’s] credibility by asking whether the [witness] has ever been convicted of a felony or a crime involving dishonesty or false statement, and how many times.” Gavins v. State, 587 So. 2d 487, 489 (Fla. 1st DCA 1991). The 1st DCA stated that if the witness “admits the number of prior convictions, the prosecutor is not permitted to ask further questions regarding prior convictions, nor question the [witness] as to the nature of the crimes.” However, if “the [witness] denies a conviction, the prosecutor can impeach him by introducing a certified record of the conviction.”
The 1st DCA determined that Ducree’s responses were neither false nor misleading. The 1st DCA concluded “the trial court abused its discretion by allowing the State to continue questioning Ducree as to the exact nature of all eight of his convictions.” The witness could have been impeached by submitting the certified copies of his convictions. The 1st DCA determined that the trial court’s error was not harmless and reversed and remanded for a new trial.
Assistant Attorney General Giselle Lylen represented the state.
[Stallworth v. State, 02/07/11]
Opinion:
Trial court erred; fact that defendant’s sentence was imposed after probation was revoked does not preclude defendant from seeking postconviction DNA testing.
Lee v. State, 1D10-0173. Opinion filed February 7, 2011.
Lee challenged the trial court’s dismissal of his motion for postconviction DNA testing arguing “the trial court erred in finding appellant was precluded from seeking postconviction DNA testing because he was resentenced after violating probation.”
The record reveals that Lee entered a no contest plea, in August 2005, to one count of lewd and lascivious battery and was sentenced to 15 years’ probation. In October 2005, Lee was found to have violated the terms of his probation and his sentence was reinstated. In January 2006, Lee was found to again have violated his probation and this time, “his probation was revoked and he was sentenced to 15 years in prison.” When denying Lee’s motion for postconviction DNA testing, the court found Lee “was precluded from challenging the evidence relevant to the lewd and lascivious battery charge because appellant’s current sentence was entered as a result of his violation of probation.” “The court reasoned this challenge would have the effect of ‘undermining the finality of a VOP judgment and sentence.’”
The 1st DCA concluded that when Lee’s probation was revoked, “he was sentenced for lewd and lascivious battery, not violation of probation.” The 1st DCA determined that “the fact appellant’s sentence for lewd and lascivious battery was entered after violation of probation does not preclude him from seeking postconviction DNA testing of physical evidence relevant to the lewd and lascivious battery charge.” The 1st DCA reversed and remanded “for the trial court to consider appellant’s motion on the merits.”
Assistant Attorney General Charlie McCoy represented the state.
[Lee v. State, 02/07/11]
Opinion:
Trial court erred; court must consider the reasonableness and necessity of the investigative costs at issue with respect to the particular case.
Criminal Specialist Investigations, Inc., v. State, 1D10-4650. Opinion filed February 7, 2011.
Criminal Specialist Investigations, Inc., (Petitioner), sought “a writ of certiorari quashing the trial court’s order denying a motion for additional mitigation coordinator fees in a capital case.” Petitioner argued the trial court erred by failing to “undertake the appropriate consideration of the reasonableness and necessity of the costs at issue with respect to this particular case.”
The record reveals that Rosalie Bolin was appointed by the trial court as the mitigation coordinator in a first-degree murder case. The defendant was eligible for the death penalty and Bolin was hired by counsel “to assist in the preparation for the penalty phase . . . which the trial judge found was one of the most unusual and extraordinary cases he had presided over.” Several motions for mitigation coordinator fees were approved by the judge over the course of the case. At the end of the case, the defendant received life imprisonment and defense counsel “filed an Amended Fourth and Final Ex-Parte Motion for Authorization to Incur Additional Mitigation Coordinator Fees.” At the hearing, the judge “opined that Florida law did not recognize any such position as that of a mitigation coordinator,” and also “opined that Bolin had already been paid too much.” The Justice Administrative Counsel (JAC) “informed the court it would not oppose the motion for additional mitigation coordinator fees if the court found those fees to be reasonable and necessary.” The “judge advised defense counsel that he would consider additional information after the hearing.” Defense counsel provided the itemized logs as requested by the judge, however, “the court denied the motion without explaining its reasoning.”
The 1st DCA noted that per “[t]he ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (rev. ed. 2003)(“ABA Guidelines”) suggest that the ‘defense team’ in a capital case include ‘at least one mitigation specialist and one fact investigator.’” § 10.4(C)(3)(a), ABA Guidelines; see also § 4.1(A)(1). The 1st DCA also listed several cases “where the use of a mitigation specialist or a mitigation coordinator is not unusual in Florida.”
The 1st DCA determined that “[t]he record in the instant case does not reflect that the trial court gave case-specific consideration to the reasonableness and necessity of the costs the defense incurred in hiring Bolin” which is required by Florida law. Thus, “the trial court’s handling of the motion at issue was a departure from the essential requirements of the law.” The 1st DCA granted the petition, quashed the order under review and remanded for further proceedings.
General Counsel Stephen Presnell and Assistant Attorney General Christian Lake for The Justice Administrative Commission represented the state.
[Criminal Specialist Investigations, Inc., v. State, 02/07/11]
Opinion:
Second District Court of Appeal
Case reversed and remanded for new trial; court failed to conduct an adequate Nelson hearing.
Nash v. State, 2D09-3825. Opinion filed February 11, 2011.
Nash appealed “his judgments and sentences for trafficking in heroin and conspiracy to traffic in heroin arguing the trial court failed to conduct an adequate hearing pursuant to Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973).”
The record reveals that on the morning of trial, “Nash’s court-appointed counsel informed the trial court that Nash wanted to discharge counsel and hire a private attorney.” The court then asked several questions of Nash (see opinion). The court asked Ms. Fletcher (attorney representing Nash) only one question; whether she was ready to proceed with trial.
“Under Nelson, when a defendant seeks to discharge his court-appointed counsel before trial, the trial court must ascertain whether the defendant is unequivocally requesting counsel’s discharge and, if so, the reason for the request.” Maxwell v. State, 892 So. 2d 1100, 1102 (Fla. 2d DCA 2004). The 2nd DCA concluded that “Nash unequivocally requested his counsel’s discharge and complained that he was unaware of his trial date.” The trial court only inquired if counsel was ready for trial and never asked counsel about any of the complaints raised by Nash. “Without such an inquiry, the court could not, and did not, make the findings on the record which Nelson mandates.” The 2nd DCA stated that because “Nash and his counsel continued to have irreconcilable differences during the trial, we do not find the error was harmless.” The 2nd DCA reversed and remanded for a new trial.
Note: Judge Altenbernd concurred but noted that “[g]iven that the circumstances of the typical Nelson hearing are often frustrating even for the most patient and experienced trial judge, I continue to believe that a bench book colloquy would help prevent new trials.”
Assistant Attorney General Richard Fishkin represented the state.
[Nash v. State, 02/11/11]
Opinion:
Fourth District Court of Appeal
Order granting motion to dismiss Count IV (firearm possession charge) affirmed; State waived deficiency by failing to object to the unsworn motion.
State v. Pitts, 4D09-4472. Opinion filed February 9, 2011.
The State appealed the order granting Pitts’ rule 3.190(c)(4) motion to dismiss the firearm possession charge (count IV), “asserting that the factual allegations of the motion were not sworn to by the defendant as required by the rule.” The 4th DCA stated that “[w]hile the rule unquestionably requires that the motion be sworn, we find the State waived the deficiency and affirmed.”
The 4th DCA noted that the State never filed a traverse, nor did the State raise any objections to the unsworn motion at the hearing on the motion to dismiss.
- The language of the rule expressly contemplates that “[t]he facts on which the motion is based should be alleged specifically” and that the motion be sworn. Fla. R. Crim. P. 3.190(c). The rule permits the State to file a traverse, denying under oath and with specificity the facts alleged in the motion. See Fla. R. Crim. P. 3.190(d). “If the State does not file a traverse specifically denying the factual matters asserted in the motion to dismiss, the factual matters are considered admitted.” State v. Beaubrun, 36 So. 3d 897, 899 (Fla. 3d DCA 2010) (citing Fla. R. Crim. P. 3.190(d)).
Assistant Attorney General Helene Hvizd represented the state.
[State v. Pitts, 02/09/11]
Opinion:
Objection not preserved; when you jump to your alternative argument without obtaining a ruling on your objection --- you lose.
Guerra v. State, 4D07-5023. Opinion filed February 9, 2011.
Guerra, convicted for burglary of a conveyance, appealed his conviction arguing “the trial court abused its discretion in allowing the state to play a DVD showing him and a co-defendant conversing in Spanish in an interrogation room, and allowing a deputy, who observed the conversation to provide a translated account of the conversation for the jury.” Guerra relied on Ortega v. State, 721 So. 2d 350, 351 (Fla. 2d DCA 1998), “which held that a trial court erred when it allowed a detective to translate a defendant’s videotaped statements for a jury.”
The record reveals that the trial court sustained defendant’s initial objection to the deputy serving as the interpreter. After the state requested to play the DVD, without the audio, the “defendant responded that the DVD should not be admitted into evidence.” “Without obtaining a ruling on that objection, the defendant immediately raised the alternative argument that, if the court were to admit the DVD into evidence, then the DVD should be played with the audio and the video.”
The 4th DCA found that “because the defendant turned to this alternative argument without obtaining a ruling on his objection to the admission of the DVD, the defendant did not preserve that objection for review.” See Carratelli v. State, 832 So. 2d 850, 856 (Fla. 4th DCA (2002). The 4th DCA further noted there were no objections later in the trial when the state: “(1) offered the DVD into evidence; (2)requested to publish the DVD to the jury; and (3) asked the deputy to comment on what he heard.” Because there were no objections, the 4th DCA found that “the defendant waived his earlier-sustained objection to the deputy serving as an interpreter of the DVD.” The 4th DCA also found that “any possible error in the admission of the DVD or the deputy’s testimony does not rise to the level of fundamental error” and affirmed.
Assistant Attorney General Mrya Fried represented the state.
[Guerra v. State, 02/09/11]
Opinion: