Office of Attorney General Pam Bondi
Criminal Law Alert
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Date issued: 04/06/2011
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
Cullen v. Pinholster, 09-1088. Decided April 4, 2011. Summary by Adam Schlossman @ SCOTUSblog.
In an opinion by Justice Thomas, the Court reversed the decision of the Ninth Circuit. It held that review under the federal habeas law is limited to the record that was before the state court which ruled on the claim on the merits. Moreover, on the record that was before the state court, Pinholster was not entitled to federal habeas relief.
The Chief Justice and Justices Scalia and Kennedy joined the decision in full; Justice Alito joined the decision as to all but Part II of the Court’s opinion; Justice Breyer joined the decision as to Parts I and II, and Justices Ginsburg and Kagan joined the decision as to Part II. Justice Alito filed a separate opinion concurring in part and concurring in the judgment; Justice Breyer also filed a separate opinion concurring in part and dissenting in part. Justice Sotomayor filed a dissenting opinion, which Justices Ginsburg and Kagan joined in part.
Opinion:
Connick v. Thompson, 09-571. Decided March 29, 2011. Summary by Dan Schweitzer at NAAG.
By a 5-4 vote, the Court held that a district attorney’s office may not be held liable under §1983 for a Brady violation committed by one of its prosecutors where no pattern of violations was shown. Specifically, the Court ruled that “this case does not fall within the narrow range of ‘single-incident’ liability hypothesized in Canton [v. Harris, 489 U.S. 378, 390 n.10 (1989)] as a possible exception to the pattern of violations necessary to prove deliberate indifference in §1983 actions [against municipalities] alleging failure to train.” The Court found that “[a]ttorneys are trained in the law and equipped with the tools to interpret and apply legal principles, understand constitutional limits, and exercise legal judgment.” As a consequence, “recurring constitutional violations are not the ‘obvious consequence’ of failing to provide prosecutors with formal in-house training about how to obey the law” ─ and therefore do not fit within the narrow exception.
Opinion:
Tolentino v. New York, 09-11556. Decided March 29, 2011. Summary by Dan Schweitzer at NAAG.
The Court dismissed the writ of certiorari as improvidently granted. The Court had granted certiorari to review a New York Court of Appeals decision holding that, under the Fourth Amendment, “a defendant may not invoke the fruit-of-the-poisonous tree doctrine when the only link between improper police activity and the disputed evidence is that the police learned the defendant’s name.”
Decision:
Certiorari Granted.
Title: Greene v. Fisher. Certiorari Granted April 4, 2011.
Docket: 10-637
Issue: For purposes of adjudicating a state prisoner's petition for federal habeas relief, what is the temporal cutoff for whether a decision from this Court qualifies as “clearly established Federal law” under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996?
Title: Florence v. Board of Chosen Freeholders of the County of Burlington. Certiorari Granted April 4, 2011.
Docket: 10-945
Issue: Whether the Fourth Amendment permits a jail to conduct a suspicionless strip search whenever an individual is arrested, including for minor offenses.
Certiorari Denied.
Title: Davis v. Humphrey. Certiorari Denied March 29, 2011.
Docket: 10-949
Issue(s): 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.
Title: Davis v. Humphrey. Certiorari Denied March 29, 2011.
Docket: 10-950
Issue(s): 1) Whether Sawyer v. Whitley (1992), supplies the appropriate burden of proof for a claim that the execution of an innocent person violates the Eighth Amendment; 2) whether, in the context of an actual innocence proceeding, the district court gave proper consideration to evidence that the alternative suspect confessed in accordance with House v. Bell (2006), and Schlup v. Delo (1995); 3) whether, through witness testimony, the petitioner established his innocence to the requisite degree to render his execution unconstitutional under the Eighth Amendment; and 4) whether the court of appeals has jurisdiction under 28 U.S.C. §§ 1291 and 2253 to review the district court's final order in the first instance?
Florida Supreme Court
Trial court properly denied suppression motion; defendant was not in custody when he gave his statement.
Johnston v. State, SC09-780 and SC10-75. Opinion filed March 24, 2011.
Johnston, convicted of first-degree murder and sentenced to death, appealed the denial of his 3.851 postconviction relief motion raising ten issues. In one issue, Johnston argued trial counsel was ineffective “under Strickland for failing to move to suppress his statement made to law enforcement prior to issuance of a Miranda warning.” Johnston also asserted his statement made to police after receiving the Miranda warning should have been suppressed because “the warning came in the middle of continual interrogation.”
The record revealed that after Johnston saw his picture on TV, he phoned police, then drove himself to the station, and made a statement to the detectives working the case. Johnston believed “his statements would account for his whereabouts on the night of the murder and his use of the victim’s ATM card.” At the evidentiary hearing on this issue, Johnston’s counsel “explained that he wanted the jury to hear Johnston’s statements because they provided the only lawful explanation as to why Johnston possessed the victim’s ATM card.” The Florida Supreme Court concluded that counsel’s explanation “demonstrates that his decision not to move to suppress Johnston’s statements was a reasonable, strategic choice.” Further, a motion to suppress on this issue would have been meritless. Because the evidence presented at the evidentiary hearing demonstrated Johnston’s initial statement to police was voluntary, “no Miranda warnings were required until Johnston was formally arrested.” The Court stated that “. . . since Johnston was not in custody when he gave his initial statement, it follows that Johnston’s post-Miranda statement was obtained following a valid waiver.” Thus, “the motion to suppress either statement would have been denied.” The Court affirmed the trial court’s denial of this claim.
The Court affirmed the denial Johnston’s rule 3.851 postconviction relief motion and denied his habeas petition.
Assistant Attorney General Katherine Blanco represented the state.
[Johnston v. State, 03/24/11]
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 13, April 1, 2011.
DUNBAR v. STATE, 46 So.3d 81, 35 Fla. L. Weekly D2048b (Fla. 5DCA 2010). Supreme Court Case No. SC10-2296 (Dunbar v. State). Order dated March 28, 2011. Oral argument will be set by separate order. Criminal law--Sentencing--Mandatory minimum--No error in including mandatory minimum sentence in written sentence for offense of robbery with firearm, although mandatory minimum sentence was not orally pronounced--Court recedes from prior decision in which it held that oral pronouncement of sentence controls in this context.
Summary in The Florida Law Weekly, Volume 36, Number 12, March 25, 2011.
BOUDREAUX v. STATE, 45 So. 3d 36, 35 Fla. L. Weekly D1842a (Fla. 1DCA 2010). Supreme Court Case No. SC10-2069 (Boudreaux v. State). Order dated March 17, 2011. No oral argument. Criminal law--Post conviction relief--Trial court properly dismissed defendant's amended motion for post conviction relief as untimely where both two-year window for rule 3.850 motions and 60-day period given for amendment of motion had passed before amended motion was filed.
First District Court of Appeal
Another Montgomery issue; reversed and remanded for new trial.
Anderson v. State, 1D09-411. Opinion filed March 31, 2011.
Anderson appealed his conviction and sentence for attempted second-degree murder arguing the trial court should have instructed the jury on the aggravated battery and simple battery. Anderson was originally charged with attempted first-degree murder and “he requested instructions on aggravated battery and simple battery, among other crimes, as permissive lesser-included offenses of the charged offense.” The requested instructions were denied by the trial court.
The 1st DCA reversed for a new trial based on the Montgomery issue and further noted that “at the new trial, the court should instruct the jury on aggravated battery and simple battery as lesser-included offenses of attempted first-degree murder if those instructions are requested.”
Bureau Chief Trisha Meggs Pate and Former Assistant Attorney General Michael Kennett represented the state.
[Anderson v. State, 03/31/11]
Opinion:
Per Mendenhall, when defendant discharges firearm resulting in death, the trial court has discretion to impose mandatory minimum sentence anywhere within the range of 25 years to life when sentencing for armed robbery and armed burglary.
Dean v. State, 1D10-0230. Opinion filed March 22, 2011.
Dean was originally convicted of one count of first-degree murder, two counts of armed robbery, and one count of armed burglary and sentenced to “concurrent terms of life imprisonment with a mandatory minimum sentence of life imprisonment.”
In its prior opinion, the 1st DCA affirmed the convictions, “but reversed and remanded the mandatory minimum sentences of life for the armed robbery and armed burglary convictions and remanded for the entry of mandatory minimum sentences of 25 years instead.” The 1st DCA based its decision on Hoover v. State, 877 So. 2d 751 (Fla. 1st DCA 2004), where it held that “section 775.087(2)(a)3, Florida Statutes (2008), provided that a defendant who discharged a firearm during the commission of certain enumerated felonies, including robbery and burglary, and, as the result of the discharge, caused the death of any person, could not be sentenced to a mandatory minimum sentence of more than 25 years.”
- However, we are now constrained to affirm the sentences based on the Florida Supreme Court’s decision in Mendenhall v. State, 48 So. 3d 740 (Fla. 2010), holding that section 775.087(2)(a)3 gives the trial court the discretion to impose a mandatory minimum sentence anywhere within the range of 25 years to life.
Assistant Attorney General Jennifer Moore represented the state.
[Dean v. State, 03/22/11]
Opinion:
Second District Court of Appeal
Pre-Miranda statements admitted in error; however, error was harmless beyond a reasonable doubt given the overwhelming evidence of guilt.
Horne v. State, 2D09-4020. Opinion filed March 25, 2011.
Horne appealed his “judgment and life sentence for second-degree murder, arguing that the trial court erred in denying his motion to suppress his pre-Miranda statements to law enforcement.” Horne argued the detectives’ conduct amounted to custodial interrogation.
At the suppression hearing, three Winter Haven Police Detectives testified that “Horne was taken into custody and brought into the interrogation room.” Before Horne was given his Miranda rights, “the detectives showed him a picture of the victim, played a recorded statement by Horne’s brother indicating Horne admitted to the crime, and showed Horne a recovered firearm.” Horne confessed he shot the victim. “It was only after Horne’s confession that he was advised of his Miranda rights.” The trial court denied the suppression motion “because Horne’s statements were not made in response to any question.”
The 2nd DCA concluded that the detectives’ actions “amounted to the functional equivalent of questioning.” They should have “known that their actions of showing Horne the victim’s picture, playing the recorded statement by Horne’s brother, and showing Horne the recovered firearm, were reasonably likely to elicit an incriminating response from Horne.” Based on the detectives’ behavior before giving Horne his Miranda warnings, the 2nd DCA found that the trial court erred in denying Horne’s suppression motion.
However, the 2nd DCA found that “[d]espite this conclusion, the admission of Horne’s pre-Miranda statements was harmless beyond a reasonable doubt given the overwhelming evidence of guilt.” See Ross v. State, 45 So. 3d 403, 434 (Fla. 2010)(applying harmless error analysis). The 2nd DCA noted there were several eyewitnesses that testified they saw Horne and the victim in a verbal confrontation, saw Horne remove a gun from his pocket, saw Horne shoot the gun in the air, and then saw Horne shoot the victim. The 2nd DCA found there is “no reasonable possibility that the error in admitting Horne’s pre-Miranda statements contributed to the guilty verdict” and affirmed Horne’s judgment and sentence.
Assistant Attorney General Sonya Horbelt represented the state.
[Horne v. State, 03/25/11]
Opinion:
Third District Court of Appeal
Trial court failed to hold adequate Richardson inquiry.
T.J., v. State, 3D10-461. Opinion filed March 30, 2011.
T.J., charged by amended petition for delinquency with burglary of an unoccupied dwelling, third degree grand theft and criminal mischief, sought reversal of his adjudication of delinquency and commitment.
The record reveals that on the morning of the adjudicatory hearing, “the State listed two new witnesses: Officer Antenor, the crime scene investigator, and Officer Sumner, the latent fingerprint analysis and expert witness.” The State classified the officers as “B” witnesses. Defense counsel objected to “the late submission of them as witnesses,” and to their classification as “B” witnesses. The trial court allowed the “B” classification and allowed them to testify. On appeal, the State admitted “its late submission of the two testifying witnesses was error but argues that the error is harmless because the defense had the names of both witnesses in a supplemental discovery report.”
The 3rd DCA concluded that the “State’s failure to strictly comply with Florida Rule of Juvenile Procedure 8.060(a)(2) is not harmless as these witnesses were key State witnesses with direct and relevant knowledge of the investigation.” “. . . both of these witnesses should have been classified as ‘A’ witnesses” which would have entitled defense to take their depositions. “The rule’s strict requirement of listing the names of ‘A’ witnesses is not satisfied by having the names included in reports as was argued by the State.” The 3rd DCA determined “the trial court failed to hold an adequate Richardson inquiry,” “failed to inquire whether the discovery violation was willful or inadvertent, whether it was substantial or trivial, and whether the violation had a prejudicial effect on the defense’s trial preparation.” Richardson v. State, 246 So. 2d 771, 775 (Fla. 1971).
The 3rd DCA reversed and remanded for a new adjudicatory hearing. “We cannot say beyond a reasonable doubt that no prejudice to the defense resulted from this discovery violation, and therefore the trial court’s failure to make an adequate inquiry is not harmless error.”
Assistant Attorney General Lunar Claire Alvey represented the state.
[T.J., v. State, 03/30/11]
Opinion:
Fourth District Court of Appeal
Common pocketknife is not included in definition of weapon per § 790.001(13), Fla. Stat.
R.H., v. State, 4D09-4654. Opinion filed March 23, 2011.
R.H. was adjudicated of violating section 790.115(2), Florida Statutes (2009), by possessing a common pocketknife on school property. He “moved for judgment of dismissal under Rule 8.110(k), on the basis that possession of a pocketknife, as defined under section 790.001(13), is not a violation of section 790,115(2).” The trial court denied the motion and R.H. appealed.
Section 790.115(2) reads, in pertinent part, as follows:
A person shall not possess any firearm, electric weapon or
device, destructive device, or other weapon as defined in s.
790.001(13), including a razor blade or box cutter, except as
authorized in support of school-sanctioned activities, at a
school-sponsored event or on the property of any school,
school bus, or school bus stop . . . .
§ 790.115(2)(a), Fla. Stat. The 4th DCA noted that “[a] weapon is defined by section as being ‘any dirk, knife, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife, plastic knife, or blunt-bladed table knife.’”
The 4th DCA determined that R.H.’s “adjudication is based solely on the possession of a common pocketknife on school grounds.” A common pocketknife is exempted “from the ambit of the statute for which R.H. was adjudged to have violated.” The 4th DCA found that R.H. did not violate the statute, reversed the adjudication, and remanded for entry of a judgment of dismissal.
Assistant Attorney General Melynda Melear represented the state.
[R.H., v. State, 03/23/11]
Opinion:
Fifth District Court of Appeal
Reversed and remanded for new trial; Faretta inquiry was inadequate.
Vega v. State, 5D09-2598. Opinion filed March 25, 2011.
Vega appealed his convictions for “possession of cannabis, trafficking in MDMA (commonly known as ecstasy), possession of cocaine, and obstructing a police officer without violence.” Vega specifically asserted “the Faretta inquiry was inadequate because he was not informed of the potential sentence he could face, was not informed of the potential limitations in legal resources, was not informed that he would have to abide by the relevant rules of procedure and evidence, and was not told that his access to the state attorney would be reduced compared to an attorney.” Faretta v. California, 422 U.S. 806 (1975).
The 5th DCA noted that Vega was “somehow able to convince a judge to give him six continuances in a case devoid of any real complexity.” Vega moved to discharge his attorney because he wanted to hire a private attorney. The trial court granted the motion and “made it clear that no more continuances would be granted . . .” At the status hearing, held before the scheduled trial date, Vega was informed by the trial court that if “counsel did not appear for trial, he was on his own.” The trial court conducted a short Faretta inquiry. Following jury selection, Vega who was still without counsel, requested the public defender be reappointed. The public defender informed the court he was not available on the scheduled trial dates. The trial court denied the motion. A footnote stated the following: “It is clear that the trial court had reached the end of its patience with Vega and had no intention of reoffering the services of the public defender.”
The 5th DCA determined that the Faretta inquiry revealed that Vega was competent, literate and “was unfamiliar with the trial process.” The trial court did advise Vega it was in his best interest to have an attorney represent him, but the trial court “did not inform him of the maximum penalty he faced, or the pitfalls or dangers that accompany self-representation, or that he would have to abide by the relevant rules of procedure and evidence code.” Nor did the trial court inform Vega of the “various advantages of having counsel.” The 5th DCA found that “viewed in its totality,” the Faretta inquiry was inadequate and reversed and remanded for a new trial.
Assistant Attorney General Douglas Squire represented the state.
[Vega v. State, 03/25/11]
Opinion: