Criminal Law Alert

Smith v. United States, 11-8976. Decided January 9, 2013. Summary by Dan Schweitzer at NAAG.

The Court unanimously held that once the Federal Government has proven that a defendant was a member of an unlawful conspiracy, the defendant bears the burden of proving the defense that he withdrew from the conspiracy early enough that the statute of limitations expired before prosecution. The Court ruled that neither the Constitution nor the federal conspiracy statute support treating withdrawal as an element of the offense that must be proven by the government beyond a reasonable doubt.

Opinion: USSC11-8976Smith.pdf

Ryan v. Valencia Gonzales, 10-930 and Tibbals v. Carter, 11-218. Decided January 8, 2013. Summary by Dan Schweitzer at NAAG.

The Court unanimously held that neither 18 U.S.C. §3599 nor 18 U.S.C. §4241 entitles a state prisoner to a stay of his federal habeas proceeding when he is found incompetent to assist habeas counsel. The Court ruled that the Ninth and Sixth Circuits erred in inferring that those statutes created a right to competence during federal habeas proceedings. The Court further held a district court properly exercises its equitable discretion when it denies a stay based on alleged incompetence when the federal habeas claims are record-based; and that any equity-based stay granted so that a petitioner may regain competence may not be indefinite. “Where there is no reasonable hope of competence, a stay is inappropriate and merely frustrates the State’s attempts to defend its presumptively valid judgment.”

Opinion: USSC 10-930 RyanvGonzales.pdf

Certiorari Denied:

New Mexico v. Herring – Certiorari denied January 7, 2013
Docket: 12-276
Issue(s): Whether Berghuis v. Thompkins requires advice that a suspect has the right to stop talking at any time in order to establish an implied waiver of Miranda rights.

“Petitions to Watch.” Summaries @ SCOTUS.

The following cases are up for consideration at the Justices’ private conference on January 11, 2013:

Marshall v. Rodgers
Docket: 12-382
Issue(s): Whether Faretta v. California "clearly establish[es]," for purposes of habeas corpus review of state-court judgments under 28 U.S.C. § 2254(d), that a defendant retains a constitutional right to revoke his prior waiver of counsel at trial and require re-appointment of counsel to file a new-trial motion.

Salinas v. Texas
Docket: 12-246
Issue(s): Whether or under what circumstances the Fifth Amendment’s Self-Incrimination Clause protects a defendant’s refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights.


Florida Supreme Court correctly identified Strickland “as the controlling federal law” when it ruled defendant “failed to establish prejudice.”

Evans v. Sec’y, DOC, et al., 10-14920. Decided January 4, 2013.

Following a rehearing en banc, the 11^th Circuit affirmed the denial of Evans’ petition for habeas relief holding that “the state court’s finding that petitioner failed to establish prejudice was reasonable application of Strickland v. Washington, 466 U.S. 668 (1984).”

The sole issue before the en banc panel: “whether Evans is entitled to a writ of habeas corpus because his counsel failed, in the penalty phase, to present the mitigating evidence that Evans presented on state collateral review.” Evans is on death row for the first-degree murder of his brother’s 17-year-old girlfriend, Angel Johnson. He shot and killed Johnson two days after being released for an earlier parole violation.

The state introduced evidence during the penalty phase “that Evans had two previous convictions for battery upon a law enforcement officer, a previous conviction for aggravated battery, and that Evans was on probation for felony possession of a firearm and escape when he shot Johnson.” His previous convictions were uncontested and Evans “even testified about three violent felonies that he committed.” His counsel presented good character evidence. In the state postconviction proceedings, “Evan’s new mitigation evidence, in contrast with the evidence introduced in the penalty phase of his trial, presented a more troubled and violent history.” Including a head injury when he was young, a troubled childhood, alcohol and drug abuse, that he suffered from “poor impulse control, and had exhibited aggression, especially toward women.” Three experts testified Evans probably had antisocial personality disorder while one expert stated “unequivocally” that there is no doubt he has an antisocial personality disorder. The trial court weighed all the evidence and ruled “that Evans had not proved that he was prejudiced by his trial counsel’s failure to discover and present the evidence offered during the evidentiary hearing.” The Florida Supreme Court “identified Strickland as providing the applicable standard and affirmed the decision of the state trial court.” “The state supreme court declined to address whether defense counsel’s failure to present the additional evidence of mitigation was deficient performance because ‘Evans . . . failed to demonstrate that he was prejudiced.’” Evans, 946 So. 2d at 12.

The 11^th Circuit found the Florida Supreme Court “reasonably applied Strickland when it ruled that Evans had failed to establish prejudice.” “The Supreme Court of Florida correctly identified Strickland as the controlling federal law and concluded that Evans could not establish prejudice under Strickland because the mitigation evidence was a ‘double-edged sword,’ Evans, 946 So. 2d at 13 (quoting Reed, 875 So. 2d at 437), that ‘would likely have been more harmful than helpful,’ id. That conclusion was reasonable in the light of recent decisions of the Supreme Court holding that prejudice had not been established when evidence offered in mitigation was not clearly mitigating or would have opened the door to powerful rebuttal evidence, see Cullen v. Pinholster, --- U.S. ---, 131 S. Ct. 1388 (2011); Wong v. Belmontes, 558 U.S. 15, 130 S. Ct. 383 (2009).’”

Evans also argued “that Porter compels the conclusion that the Supreme Court of Florida unreasonably applied Strickland because the court failed to consider or unreasonably discounted mitigation evidence presented in the postconviction proceeding.” The 11^th Circuit disagreed with that argument.

Porter does not compel the conclusion that the Supreme Court of Florida failed to consider or unreasonably discounted Evans’s postconviction evidence. Nothing in the opinion of the Supreme Court of Florida suggests that the court did not give appropriate mitigating weight to Evans’s postconviction evidence. Instead, the decision of the Supreme Court of Florida establishes that the court considered the evidence and concluded that the mitigation evidence “would likely have been more harmful than helpful.” Evans, 946 So. 2d at 13.

The 11^th Circuit determined that the Florida Supreme Court “affirmed on the ground that Evans had failed to prove prejudice because his postconviction evidence of mitigation was more harmful than helpful. Because that decision is reasonable, we affirm the denial of Evans’s petition for a writ of habeas corpus.”

Assistant Attorney General Kenneth Nunnelley represented the state.

Opinion: 11Cir201014920EVANS.pdf

Circumstantial evidence presented was sufficient to establish premeditated murder and felony murder.

Kocaker v. State, SC10-229. Opinion filed January 3, 2013.

On direct appeal, Kocaker appealed his first-degree murder conviction and death sentence arguing “(1) that the evidence presented at trial was insufficient to support the first-degree murder conviction; (2) the death sentence is not proportionate; (3) Florida’s protocol for execution by lethal injection is unconstitutional; and (4) Florida’s capital sentencing process is unconstitutional.”

Eric Stanton, a cab driver, was stabbed several times and was placed in the trunk of his cab while he was still alive. The cab was set on fire. “Stanton was eventually able to free himself from the trunk through the backseat of the vehicle, but ultimately died from a combination of his stab wounds and carbon monoxide poisoning.”

The Florida Supreme Court determined “the State’s case was wholly circumstantial.” The Court noted the jury was instructed “on both premeditated murder and felony-murder” and stated that “[b]ecause the guilty verdict was rendered on a general form, the evidence must support either premeditated murder or felony-murder.” Dessaure v. State, 891 So. 2d 455, 472 (Fla. 2004).

“Leaving a wounded, living victim trapped in a burning vehicle is sufficient evidence from which to infer premeditation.” Also, “the stab wound which would have been fatal without medical treatment also supported a finding of premeditation.” “Moreover, the evidence of the burning vehicle sufficiently demonstrated that the murder had occurred during an enumerated felony—arson.” See § 782.04(1)(a)2., Fla. Stat. (2004).

The Court found “the circumstantial evidence was sufficient to establish premeditated and felony murder, and was inconsistent with defendant's hypothesis of innocence.” Further, the death penalty is proportionate, Florida's protocol for execution by lethal injection is not unconstitutional, and Florida's capital sentencing scheme is not unconstitutional. The Court affirmed Kocaker’s conviction for first-degree murder and sentence of death.

Assistant Attorney General Carol Dittmar represented the state.

Opinion: sc10-229Kocaker.pdf

B.O.L.O. - - - B.O.L.O. - New Cases Review by Florida Supreme Court. Summary in The Florida Law Weekly, Volume 38, Number 1, January 4, 2013.

STATE v. LAFAVE, __ So.3d __, 37 Fla. L. Weekly D1935a (Fla. 2DCA 2012). Supreme Court Case No. SC12-2232 (LaFave v. State). Order dated December 31, 2012. Oral argument to be set by separate order. Criminal law-- Probation--Early termination--Circuit court departed from essential requirements of law, resulting in gross miscarriage of justice, when it granted defendant's motion for early termination of her sex offender probation, in direct violation of negotiated plea agreement in which state agreed to downward departure, nonprison sentence and defendant promised not to seek early termination of probation--State was not prohibited from using the "no early termination" provision in negotiated plea agreement, and defendant was bound by that provision--Fact that circuit court could not have imposed such a condition if defendant had been convicted after trial or had entered an open plea does not affect enforceability of the terms of the plea bargain to which defendant agreed--"No early termination" provision does not violate constitutional separation of powers doctrine--Appeals--Certiorari--Although state has no right to appeal order granting early termination of probation, case presents extraordinary circumstance under which state may seek common law certiorari review in absence of right to appeal--Question certified: In the absence of a statutory right to appeal, may the state seek certiorari review of an order terminating probation where it can show that the circuit court departed from the essential requirements of the law by violating the plea agreement between the state and the defendant which called for no early termination?

Suppression motion correctly denied, however, mandatory life sentence without possibility of parole for juvenile violates Eighth Amendment.

Partlow v. State, 1D10-5896. Opinion filed January 4, 2013.

Partlow was adjudicated guilty of first-degree murder (Count One) and robbery with a deadly weapon (Count Two) for crimes he committed when he was sixteen. He was “sentenced to a mandatory life sentence without eligibility for parole on Count One pursuant to section 775.082(1), Florida Statutes (2009), and to 45 years’ incarceration on Count Two.” Sentences were ordered to run consecutively. On appeal, Partlow argues: “1) the trial court erred by denying his motion to suppress, as there was no well-founded or reasonable suspicion of criminal activity to detain him, and 2) his sentence of life without eligibility for parole constitutes cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution.”

The 1^st DCA affirmed the conviction and sentence for robbery with a deadly weapon in Count Two. However, “[i]n light of the United States Supreme Court’s recent decision in Miller v. Alabama, 132 S. Ct. 2455 (U.S. June 25, 2012), we reverse Partlow’s mandatory life sentence for first-degree murder and remand for resentencing on the authority of Washington v. State, 37 Fla. L. Weekly D2579 (Fla. 1st DCA Nov. 5, 2012).”

The record reveals that two brothers observed the victim in some sort of altercation with two other males in a parking lot. The brothers turned around and went back to assist the victim. There was a vehicle in the parking lot with someone sitting on the driver side. The two males got into that vehicle and drove off. The brothers “rendered assistance to the dying victim, who said he had been robbed and stabbed.” The brothers gave a description to the police of the vehicle the men drove off in. A “be-on-the-lookout” (BOLO) was issued which described “two or three young black males occupying a white, four-door Chevy Malibu or Monte Carlo sedan with bondo covering damage to the right front bumper.” A few days later, Officer Sarria observed a vehicle matching the BOLO description that was less than three miles from where the stabbing took place. He followed the vehicle to a residence, called for back-up and when the driver exited the vehicle, “the police approached and detained him and the other occupants, including Partlow.” “Partlow admitted his active participation in the crimes” stating that one of the co-defendants took money from the victim “and handed the money to Partlow, who stabbed the victim in the chest with a knife as the victim attempted to run away.” An autopsy revealed that the stab wound was the cause of death.

The 1^st DCA cited to the Florida Supreme Court’s decision in Hunter v. State, 660 So. 2d 244, 249 (Fla. Stat. (2009), where it explained that “[a] ‘founded suspicion’ is a suspicion which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer’s knowledge.” The Court further explained that a trial court must “consider the totality of the circumstances” and “[a]mong the relevant factors in determining the legality of a temporary investigatory detention based on a BOLO are the ‘length of time and distance from the offense,’ the ‘specificity of the description of the vehicle and its occupants,’ and ‘the source of the BOLO information.’” Hunter, 600 So. 2d at 249.

The 1^st DCA determined “the trial court correctly denied Partlow’s motion to suppress.” The officers “had legitimate basis to detain and investigate Partlow and the other occupants of the Chevy Malibu.”

The strength of the other relevant Hunter factors—the two eyewitness sources of the information, the specificity of their descriptions of the automobile and its occupants, the fact that the officer saw no other vehicle closely matching the BOLO description, and the geographical proximity between the crime site and the detention—mitigates any concern we may have had about the lapse of 2-1/2 days between the BOLO and the sighting of the car.

Former Assistant Attorney General Therese Savona represented the state.

Opinion: 1D10-5896Partlow.pdf

It was error for the trial court to accept admission to the violation of probation without first informing defendant of his right to counsel “and without state’s having provided written notice of claimed violation of probation.”

Speckhardt v. State, 2D11-2990. Opinion filed January 4, 2013.

Speckhardt sought “review of the order revoking his probation and placing him on two years of community control.” He argued “he was entitled to be informed of his right to counsel before he was required to respond to charges that he violated his probation.” See State v. Hicks, 478 So. 2d 22, 23 (Fla. 1985); Brady v. State, 910 So. 2d 388, 390 (Fla. 2d DCA 2005).

Speckhardt was already on probation for various burglary and grand theft charges he pled guilty to back in 2010 when he was arrested for possessing marijuana on May 12, 2011. At the probable cause hearing Speckhardt was informed he “had a violation of probation for possessing marijuana” and the court found probable cause. Later, the court informed Speckhardt “the State was offering two years of house arrest with drug conditions” and Speckhardt took the offer. A plea colloquy ensued where Speckhardt, after being asked, informed the court that he understood the rights he was giving up. “The court started to ask if Speckhardt was satisfied with counsel and then corrected itself and asked if Speckhardt was satisfied with moving forward without having an attorney. Speckhardt replied in the affirmative, and the judge accepted his plea.”

The 2^nd DCA concluded that Speckhardt was entitled to be informed of his right to counsel before responding to the charges of violation of probation and that “without a knowing and intelligent waiver of the right to counsel, the trial court erred by accepting Speckhardt’s admission to the violation of probation.” See Brady, 910 So. 2d at 390.

The 2^nd DCA also found that Speckhardt was “entitled to written notice of the claimed violations of his probation.” The criminal report affidavit was not sufficient to constitute an affidavit of violation of probation. The 2^nd DCA “reversed the order revoking Speckhardt’s probation without prejudice to the State’s right to file an appropriate affidavit of violation of probation.” See Perkins v. State, 842 So. 2d 275, 278 (Fla. 1st DCA 2003). Also See Chadwick v. State, 37 Fla. L. Weekly D2050 (Fla. 2d DCA Aug. 24, 2012).

. . . for a criminal report affidavit to provide sufficient written notice of the claimed violations of probation, it must "contain[] the factual allegations necessary to fulfill the function of an affidavit alleging a violation of probation." Id. at D2051. The factual allegations in the criminal report affidavit do not fulfill this function. These allegations reference the reason for the arrest as Speckhardt's possession of marijuana not his violation of probation. While the allegations do reference Speckhardt's being on probation, they do not inform him that he is being charged with a violation of probation and do not mention any conditions of probation Speckhardt may have violated by possessing marijuana.

Former Assistant Attorney General Joseph H. Lee represented the state.

Opinion: 2D11-2990Speckhardt.pdf

Double jeopardy not violated . . . “aggravated assault with a firearm counts do not violate double jeopardy because they contain different elements than the robbery with a firearm and attempted robbery with a firearm counts.”

Bell v. State, 5D12-1368. Opinion filed January 4, 2013.

Bell, found guilty on three counts of aggravated assault with a firearm, two counts of robbery with a firearm and one count of attempted robbery with a firearm, appealed his convictions and sentences arguing that “the aggravated assault convictions violate double jeopardy because they are subsumed within the robbery convictions.”

The 5^th DCA affirmed stating that “[a]lthough all of the counts arose from a single criminal act -- robbing three victims at gunpoint -- the aggravated assault with a firearm counts do not violate double jeopardy because they contain different elements than the robbery with a firearm and attempted robbery with a firearm counts.”

Note: The 5^th DCA was not happy with Bell’s argument, his failure to tell the district court he was “relying on a dissent to a per curiam affirmance,” and “his failure to acknowledge cases directly on point from both the Florida Supreme Court and this court upholding convictions arising from a single criminal act for robbery with a firearm and aggravated assault with a firearm, against a double jeopardy challenge.”

Assistant Attorney General Rebecca Roark Wall represented the state.

Opinion: 5D12-1368Bell.op.pdf