Testifying Witness who Is Mentally Disabled Is Not Unavailable, But You Have to Object.

Gary Lynn Sprouse v. State, 1D15-3235, Dec. 16, 2016

Held:  The hearsay exception that allows out-of-court statements of a mentally disabled adult if they are unavailable does not apply if they testify at trial.  However, the defense has to specifically object that the witness is not unavailable to preserve the issue for appeal.

Discussion:  Fla. Stat. 90.803(24) allows in the hearsay statements of disabled adults with certain conditions, including that they are unavailable as a witness.  Here, the State had the victim, who had Down's Syndrome, testify, but they also introduced through her mother what she told her mother about the crime.  The defense argued against the admission of this hearsay on the grounds that it was unreliable, but did not argue that the victim was not unavailable.  

The State argued on appeal that the witness was in fact "unavailable", despite her testimony, because due to her mental health condition she could not testify responsively, but the First rejected that, saying "we cannot accept that tortured definition of 'unavailable'".  

Instead, the Court will not reach the question on preservation grounds, ruling that a general reliability objection does not reach the contention on appeal that the witness was not unavailable, and does not satisfy the requirement that the defense place the trial judge on notice as to what error the defense claims is being committed.  The Court states that if the defense had brought up availability, the Court might have decided not to call the witness and sought a finding that she was unavailable, or might have decided not to introduce the hearsay.

My thoughts:  Good reminder on the importance of a) reading the statute; and b) making a specific objection.  A basic reading of the statute should have apprised the defense that unavailability was a prerequisite for the introduction of the hearsay.  I take issue with the First's footnote regarding how if the defense had objected, the State might have chosen not to call the witness and seek a finding she was unavailable.  Courts hate it when they see the defense as playing games, but this is encouraging total game-playing by the State.  The witness was available.  She testified.  Availability should not be a strategic decision.  A State choice not to call a witness because her hearsay statement is more helpful to them does not mean the witness is unavailable, and the Court shouldn't suggest otherwise.

Find Out Judge Biased After He Denies Your Postconviction Motion?  You Can File Another One.

Dana S. Cannon v. State, 1D16-93, Dec. 16, 2016

Held:  Successive Rule 3.850 motion can be filed within two years of discovering grounds for alleging judge impartial.

Discussion:  The facts in this case are pretty crazy and worth a reading of the opinion. Basically, the defendant's post-conviction counsel had filed a separate post-conviction motion alleging that the defendant's post-conviction judge was ineffective when he was a lawyer in a separate death penalty case.  That motion apparently got contentious, and was ultimately denied.  This defendant then sought disqualification of the judge because of the prior litigation handled by her attorney alleging that the judge was an ineffective lawyer, which was denied.  Then, the post-conviction motion was denied, by that judge.  Afterwards, the defendant learned that in another unrelated case, the judge had said, on the record, "Well, don't argue to me about [this lawyer].  That's not going to help you out.  That's only going to hurt your case."  The defendant sought to set aside the result in her post-conviction case based on this new comment, and after that was denied, in a rather personal order where the judge defended himself against the earlier ineffectiveness allegations, appealed.

The First finds that a motion to set aside was probably not the right procedural vehicle here, but there is a procedural vehicle, to wit, a new, successive 3.850 motion based on the new information.  The Court doesn't make it clear when this has to be filed (is it within two years of the new information, pursuant to Rule 3.850, or within 10 days, pursuant to the judicial disqualification statute?), but either way this motion was timely.  The Court remands and says that if the judge was biased, a new judge must take a new look at the 3.850.

My thoughts:  This is an interesting case because there is nothing I see in the Rule 3.850 text that allows a successive motion in these circumstances, but the First clearly felt that some remedy had to exist, and this is the one.  I also am confused that the Court at the end of the opinion says that the judge's disqualification is not decided, suggesting that perhaps the judge was joking.  Considering that the standard for disqualification is not whether the judge is actually biased but whether the defendant had a good faith fear that he or she is, and considering the blatant on-the-record attack on the defense attorney, I am not sure why this question could not simply be settled on appeal.

Even if the Defendant's Crazy AND a Pain in the Butt, You Can't Involuntarily Commit Him Without Convening a Committee.

Gary Bernard Tillman v. State, 4D15-1497, Dec. 21, 2016

Held:  Before involuntarily committing a mentally incompetent and non-restorable defendant, an examining committee must be convened and must issue a report.

Discussion:  The defendant was declared incompetent to proceed due to an intellectual disability, and could not be restored to competency.  The State wanted him involuntarily committed to a group home with supervision, and the judge, per statute, appointed an examining committee, but the committee could not complete its report due to the defendant's non-cooperation.  The judge then committed the defendant based on the written report of a single expert.  This was error because the statute requires an examining committee of at least three disinterested experts to see the defendant and issue a report, and also requires a hearing at which various due process protections are observed. The order of commitment was reversed and the case remanded for further proceedings.

My thoughts:  Pretty clear case, calling it statutory interpretation is not even accurate, its just literally following the procedure the statute says has to be followed before taking the major step of involuntarily committing a person into the "care" of the State.  This case illustrates some of the problems with dealing with mental illness through the criminal justice system.  This defendant may have needed help, but his underlying charges were grand theft, possession of drug paraphernalia, and no valid drivers license.  These are the sorts of charges that in 99% of cases are resolved quickly and without significant sanctions. It is almost certain that this defendant has been confined (and thus, I'm sure in his understanding, punished) far more than a mentally healthy defendant would be for the same crimes.

Even a School Search Requires Some Reasonable Suspicion.

G.C. v. State, 4D15-4541, Dec. 21, 2016

Held:  A school search of a student's bag must be supported by some articulated basis.  Here, because the same bag had already been searched earlier and there was no record explanation of the basis for a second search, the search was illegal.

Discussion:  A "school security specialist" (is that what they call school rent-a-cops these days?) testified that they had seen students, including the respondent, playing with a taser.  The next day, the respondent was called to the office and her bag was searched, with negative results.  Later, the assistant principal searched the bag again, and this time a taser was found.  The assistant principal didn't testify, and the school security specialist assumed the assistant principal must have gotten some additional information, but didn't know what it was.  

The Fourth said the first search was legal, because the respondent had been observed with a taser, but the second search wasn't, because after the first search, there needed to be some additional facts or circumstances to support the second search, and thus second invasion of the respondent's privacy, and here there weren't.

If You Don't Show Up to Court Because You Were Illegally Arrested, That Might Not Be Your Fault.

Andres Aguirre v. State, 4D15-4795, Dec. 21, 2016

Held:  When furlough violated because defendant was arrested in interim, if arrest invalid, enhanced sentence based on failure to return after furlough may be invalid.

Discussion:  Defendant made the always-inadvisable decision to plead to a maximum sentence to be mitigated if he showed up at some specified date in the future.  He didn't, because he was arrested in the meantime, so he is serving his non-mitigated maximum sentence.  Later,  motion to suppress was granted in the new case because the defendant was stopped illegally for walking down the street.  The defendant filed a 3.850, and the appellate court said that the results of the motion to suppress could be new evidence supporting a 3.850 motion.  A hearing was necessary.  Despite the fact that a defendant can be found to have violated probation even if a new substantive case is dismissed, here the finding is that there was no basis for the arrest at all, and because the arrest is why the defendant didn't appear, there is an issue with willfulness.

My thoughts:  Furloughs are a terrible idea.  Criminal defendants far overestimate their ability to comply with them and not have something unexpected (like getting arrested for walking down the street) occur in the meantime.  It is good to see the Fourth doing the just thing here and strongly suggesting to the trial court that a maximum sentence is not justified when a defendant doesn't show up because he was illegally arrested.  I have no doubt the State in this case argued, and will argue on remand, that the defendant still had whatever he had when he was illegally stopped, and thus violated the conditions of his furlough, but luckily the Fourth does not take this tack.

Be Careful With that Ineffectiveness of Trial Counsel on Direct Appeal Claim--You Could Waive Post-Conviction Remedies.

Terrance Hartley v. State, 1D15-3209, Dec. 21, 2016

Held:  A claim on direct appeal that trial counsel was ineffective for failing to move for judgment of acquittal can be denied on the merits if there is record evidence demonstrating that counsel was not ineffective as a matter of law.

Discussion:  Appellate counsel (private attorney) raised an ineffective assistance of trial counsel claim on direct appeal, arguing trial counsel was ineffective for failing to move for judgment of acquittal.  The First noted that the standard is whether there is substantial competent evidence to support the defendant's guilt, taking all conflicts and inferences in the State's favor.  Here, eyewitnesses and police officers testified and their testimony was such that a verdict of guilt could be supported.  The First notes that ineffectiveness claims on direct appeal are only granted when the error is apparent and it would be a waste of judicial resources to required a 3.850 motion, and says that by that same logic if it is apparent that counsel was not ineffective as a matter of law, the appellate court can (and here does) rule on the merits that counsel was not ineffective, thus barring a later 3.850 claim.

Held:  I have never seen this result before, but it is hard to argue with the logic.  If the court has reviewed the transcripts and they feature evidence of guilt such that the trial attorney was clearly not ineffective, why not rule that way and save the resources to be consumed with a 3.850 motion?  Of course, as a practitioner this is an illustration of why this sort of claim should rarely be made on direct appeal.  I am sympathetic to the fact that sometimes as a private attorney one has to raise whatever claims one can, but certainly one should try to do no harm to a client, which foreclosing a later 3.850 claim could be seen as being (although, on the other hand, if the 3.850 claim would not meritorious, theres not really any harm done).  In any event, such an argument obviously won't look good to an appellate court.

Witness Recanted?  Well, I Don't Believe Him.  Case Closed.  Tough Luck.

Darryl D. Ruth v. State, 1D15-4099, Dec. 21, 2016.

Held:  A post-conviction judge's finding that a witness recantation is not credible settles the matter, regardless of whether it was that same witnesses trial testimony that led to the conviction.

Discussion:  The main witness testified at trial that he was 100 percent sure that the defendant perpetrated the crime, and he was the only witness thereto.  Later, he wholly recanted and said he was 100 percent sure it wasn't the defendant.  The First goes through details of how this witnesses testimony changed dramatically throughout the pendency of the case, and the opinion is a disturbing read if one is concerned about the integrity of convictions based upon eyewitness testimony.  The trial court heard the recantation and said "I simply do not believe the witnesses testimony." and found that although it was possible the witness had lied at trial, it was more likely he was lying now about the recantation.  The First, commendably, notes that the defendant's criminal convictions and prison sentences rest on the word of an admitted liar, but says that regardless a court must deny a recantation claim when it is "not satisfied that the recantation is true".  The appellate court won't substitute its judgment for that of the fact-finder, and that is that.

My thoughts:  This is a difficult case to read.  A man is in prison based on the word of another man, and that other man gave constantly shifting stories and now has completely recanted.  The defendant actually waived his direct appeal to pursue this claim.  I think that the standard should be that in cases with no other evidence and a sole eyewitness who recants, if the trial judge does not know what is true and what isn't, a new trial should be ordered.  This would seem to be the essence of a reasonable doubt.  The price of incarcerating a potentially innocent defendant is too high for a lesser standard in this situation, especially given how much we now know about the problems with eyewitness identification.

If You Don't Know You Have Discretion, You Can't Exercise It.

Rakeem T. Patterson v. State, 4D15-133, Dec. 21, 2016

Held: A Prison Release Reoffender sentence can be imposed concurrently or consecutively, and if the judge thinks it has to be consecutively, new sentencing is required.

Discussion:  The State argued, and the trial judge believed, that because the defendant qualified as a PRR, his sentence had to be consecutive to another sentence he was serving.  This is not the case, such a sentence can be concurrent or consecutive.  When a judge mistakenly believes he or she has no discretion when in fact they do, the remedy is a new sentencing at which they can exercise said discretion.

Statute of Limitations is Jurisdictional, But We Wish It Wasn't, Hint Hint Florida Supreme Court.

Victor Guzman v. State, 3D14-776, Dec. 21, 2016

Earvin Smith v. State, 3D14-1635, Dec. 21, 2016

Held:  An argument that convictions are barred by the statute of limitations can be raised for the first time on direct appeal and requires vacation of the underlying convictions.  An amended information which brings new charges does not relate back to an original information for statute of limitations purposes.

Discussion:  In both companion cases, the Third vacates convictions for crimes which are barred by the statute of limitations.  The Third does so reluctantly and because of their own precedent in Key v. State, 990 So.2d 529 (Fla. 3rd DCA 2008).

In Guzman, the defendant was originally charged in 2004 with crimes that occurred in 2001, specifically attempted first degree felony murder, lewd and lascivious battery on a 12-16 year old, and sexual battery.  In 2010, the State filed an amended information, charging attempted felony murder, lewd and lascivious battery on a 12-16 year old,aggravated battery with great bodily harm.  The defendant was tried and convicted on this amended information, and trial counsel did not raise statute of limitations as an issue or defense.  

Count One, the attempted felony murder, was barred because it was originally charged as attempted first degree felony murder, which is not a crime.  Because it was not a crime, the 2010 information charging attempted felony murder (as opposed to attempted first degree felony murder, which is not a crime because one by definition doesn't intend to commit felony murder) is a new charge and doesn't relate back to the 2004 charge.  Thus, the four year statute of limitations for first degree felonies ran before 2010.  Count Two, the lewd and lascivious battery, has a three year statute of limitations which ran before the first charges were filed.  Count Three, the aggravated battery with great bodily harm, was a new charge (the original charge was sexual battery), and if it had been charged in the first place, it would have been barred by the three year statute of limitations.

In Smith, the Court reaches the same result after considering the case en banc. There, the defendant was sixteen in 1990 when he allegedly committed the crimes, and thirty-six when he was arrested in 2011.  His counsel moved to dismiss some counts on statute of limitations grounds, but not an armed burglary count, despite the fact that that is a first degree felony punishable by life, with a four-year statute of limitations, which was obviously well exceeded.  This count was reversed and vacated on appeal, despite the lack of preservation below.

The majority opinion notes that a violation of a statute of limitations is not always fatal to a conviction.  For instance, if a defendant negotiates a plea to a charge that is barred by the statute of limitations (perhaps to avoid a conviction for a more serious offense that is not barred), this is permitted.  Similarly, defendants can waive statute of limitations to have a jury consider lesser included offenses that would otherwise be time-barred, although in this situation the defendant must be personally colloquies on the fact that the lessers would otherwise be barred by the statute of limitations.  

The Third notes that it has reached conflicting results on the actual question presented, whether a statute of limitations defense as to the charge in the information is waived by failure to object.  Ultimately, it relies on Florida Supreme Court precedent to hold that such a defect is fundamental and an objection is not required.  However, the Court notes that absent such precedent it would find the opposite, and certifies the question for Supreme Court review.

Judge Emas writes a lengthy concurrence, clearly hoping to influence the result of the hoped-for Supreme Court review.  He traces the history of the statute of limitations in Florida, notes that in some other states, and in the federal system, a violation of the statute of limitations is not jurisdictional or fundamental and must be objected to (Musacchio v. United States, 136 S.Ct. 709 (2016)), and ultimately argues that on policy grounds the precedent finding that a statute of limitations defense does not need to be preserved should be reviewed and reversed.  He notes that Florida's statute of limitations is now much more complicated and fact-intensive than it was when some of the leading cases came out (for instance, the limitations period can be tolled when the defendant is continuously absent from Florida, does not run when a "continuing course of conduct" is afoot, and starts anew when DNA evidence is discovered in some cases, all of which might require factual inquiries rather than simply subtracting the date of the offense from the date of the charge).  Judge Emas notes that venue is not jurisdictional and must be objected to to be reviewed on appeal, and he does not see a persuasive reason why venue should be treated differently than the statute of limitations.  Generally, Judge Emas is concerned that a defendant will "game" the statute of limitations issue, purposely not objecting so as to avoid the State amending the information to validly charge an offense, and then if convicted be able to succeed on appeal.  Judge Emas says that the opposing view, that the State should know statute of limitations issues and properly charge defendants, ignores that "errors and omissions are inevitable in any human endeavor" and the State should have thus have its error pointed out to it.  Judge Emas is joined by Judges Rothenberg, Salter, and Scales, meaning that six judges agreed with the result of the case but were not willing to join Judge Emas's recommendations to the Florida Supreme Court.

My thoughts:  First of all, the result is clearly right based on Florida Supreme Court precedent, as the Third, to its credit, acknowledges.  All an appellate court can properly do in a situation where they disagree with Florida Supreme Court precedent is what they did here, follow the precedent but express why they believe reconsideration is in order.

I doubt that the Florida Supreme Court will reconsider this. I think that statute of limitations is generally considered by lawyers and judges to be jurisdictional, and although Judge Emas puts forth a very impressive effort in his well-written and impressively-researched concurrence, at the bottom it rests on an analogy between venue and statute of limitations that I don't think is supportable (venue can be waived because a defendant may agree that the crimes were committed within the county, whereas how can a defendant agree that he committed the crime within the necessary time period if he clearly didn't); and a policy decision that the mistakes of prosecutors should be forgiven and the onus but on defense attorneys to catch said mistakes (if the people charging the crime can't get it right, why is it the defense's job to do so, and if prosecutors are to be forgiven for making mistakes as such is natural in a "human endeavor" like criminal litigation, why are defendants penalized for their attorney's failure to catch a clear statute of limitations violation?).  I am not convinced by the "gaming the system" rationale, which seems to reflect a view of defense attorney's efforts that I don't see often borne out in reality.  It would be quite a gamble to intentionally ignore a valid statute of limitations defense because the State could potentially fix it, and thus go to trial on a serious felony charge and hope that years later (these were 2004 cases) the defendant would be set free.  I don't think defense attorneys, at least in the vast majority of cases, are making such calculations.  The Guzman case is a good example.  Clearly defense counsel missed an obvious statute of limitations defense that could only have helped his client to have raised.

It will be interesting to see whether the Florida Supreme Court reviews and whether they engage with Judge Emas.  Even though I disagree with the reasoning, his opinion demonstrates that he is operating on a high level.  I'm sure he would like consideration for the Court that would review this decision, and I think he deserves to get it.

Youthful Offender Sentencing Allows All Sorts of Crazy Things, Like Withholds for First Degree Felonies.

Carlos A. Pacheco-Velasquez v. State, 3D15-1403, Dec. 21, 2016

Held:  Youthful offenders can have adjudication withhold for a first degree felony punishable by life.

Discussion:  A statute (775.08435(1)(a)) requires adjudication, rather than a withhold, for capital, life, or first degree felony offenses.  Here, the defendant was sentenced as a youthful offender for robbery with a weapon, a first degree felony punishable by life.  He was sentenced to a withhold and a typical youthful offender sentence of boot camp and six years of supervision.  The Court says that the youthful offender act, and its statement that "in lieu of other criminal penalties authorized by law"  the Court can impose sanctions "with or without an adjudication of guilt".  The Court cites various other examples of situations where the YO statute supersedes otherwise valid statutory sentencing provisions.

My thoughts:  Although not helpful to the defendant in this case, who is apparently going to be deported (remember, the federal government doesn't care about withholds, viewing them as indistinguishable from adjudications and as convictions of the underlying offense), this is the right result.  Youthful offenders are exempted from other sentencing provisions, a fact that generally helps our clients and should be remembered and acted upon when our clients qualify.

Happy Birthday Justice Perry.  I Hope You Like What I Got You, It's a Big Package of You Lose Your Job and Rick Scott Gets His First Florida Supreme Court Appointment.

And it is Fifth DCA Judge C. Alan Lawson.  I do not know Judge Lawson, so I cannot give any personal insight into this appointment.  I am familiar with the judge who was forced into retirement by the state law mandating judicial retirement at age 70, Justice Perry, and think he did an excellent job and was on the right side of most recent criminal justice issues that have come before the Court.  I will note that Justice Perry is black and Judge Lawson is white.  The fact is that the prototypical face of a Florida State Prison inmate, and thus the face of the Petitioner in a huge part of the Florida Supreme Court docket, is a black male face.  Some might see an advantage in having one out of seven who is a black man, but we no longer will.

Out:

In:

Shortlist of Third DCA Judges

According to the excellent Justice Building Blog, the Third DCA Judicial Nominating Commission has chosen the following six names, one of whom will fill the vacancy created by the retirement of Judge Shepherd in early 2017:

John A. Greco
Judge Norma S. Lindsey
Fleur J. Lobree
Judge Robert J. Luck
Judge Bronwyn C. Miller
Oren Rosenthal

Here are the members of the Third DCA JNC.  Despite the fact that at least half of the Court's work by volume is criminal, not a single criminal practitioner is on the JNC.

Raquel A. Rodriguez, Esq., Chair McDonald Hopkins, LLC Southeast Financial Center 200 S. Biscayne Blvd., Suite 2600 Miami, Florida 33131-5324 Tel: (305) 704-3990 Fax: (305) 704-3999 E-mail: rrodriguez@mcdonaldhopkins.com

Eliot Pedrosa, Esq., Vice Chair Co-Chairman, Miami Litigation Department Greenberg Traurig, P.A. 333 S.E. 2nd Avenue Miami, FL 33131 Tel: (305) 579-0743 Fax: (305) 961-5743 E-mail: PedrosaE@gtlaw.com

Roy K. Altman, Esq. Podhurst Orseck P.A. SunTrust International Center One S.E. 3rd Avenue, Suite 2700 Miami, Florida 33131 Tel: (305) 358-2800 Fax: (305) 358-2382 Email: RAltman@podhurst.com

Jeffrey S. Bass. Esq. Shubin & Bass, P.A. 46 SW 1st Street, 3rd Floor Miami, FL  33130 Tel: (305) 381-6060 Fax: (305) 381-9457 E-mail: jbass@shubinbass.com

Juan C. Enjamio, Esq. Hunton & Williams LLP 1111 Brickell Avenue, Suite 2500 Miami, FL  33131 Tel: (305) 810-2511 Fax: (305) 810-2460 E-mail: jenjamio@hunton.com

Richard D. Lara, Esq. Spanish Broadcasting System, Inc. 7007 NW 77th Avenue Miami, FL  33166 Tel: (305) 644-4824 Fax: (305) 883-3373 E-mail: rlara@sbscorporate.com

Harout J. Samra, Esq. DLA Piper LLP 200 S. Biscayne Blvd., Suite 2500 Miami, Florida  33131-5341 Tel: (305) 423-8534 Fax: (305) 468-6348 E-mail: harout.samra@dlapiper.com

Justin J. Sayfie, Esq. Ballard Partners 450 E Las Olas Boulevard, Suite 1500 Fort Lauderdale, FL  33301 Tel: (954) 523-2427 Fax: (954) 523-9146 E-mail: justin@ballardfl.com

Mr. Robert A. Spottswood Spottswood Companies, Inc. 506 Fleming Street Key West, FL  33040 Tel: (305) 294-6100 Fax: (305) 294-6122 E-mail: rspottswood@spottswood.com

Third DCA PCA Count 12/14/16 Opinion Release

As my primary arena of appellate litigation is the Third District Court of Appeals, and as I tend to think, for reasons I may elaborate on later, that there are far too many PCAs (abbreviation for "we won't tell you why you lost and because we didn't tell you you can't appeal any further, so don't let the prison door hit you on the way out"), I intend to keep a tally of written opinions versus PCA's in the Third DCA.  Because I tend to think, perhaps arrogantly, that cases where the defendant had an attorney are more likely to be meritorious or at least warrant a written opinion, I will differentiate between PCA's with and without an attorney, and also those where the appointed attorney filed an Anders brief, signaling that a PD didn't believe the case had arguable points, which would tend to make a PCA more likely to be warranted.  I will also differentiate between direct appeals and collateral appeals (usually appeals of denials of 3.850 motion alleging ineffective assistance of counsel).  These numbers apply only to criminal cases.

Written Opinions: 2

• 1 reversed (after previous affirmance and Florida Supreme Court review)

Total PCA's:  9

• 1 direct appeal with counsel
• 1 Anders direct appeal
• 7 pro se collateral appeals

One Shooting, Two Victims.  You Can Run Sentences Concurrently.  You Don't Have To, But You Can.

Jesse Penn v. State, 4D15-492, Dec. 14, 2016

Held:  Resentencing necessary when judge believes that consecutive sentencing mandatory when in fact it is permissive, in situation where defendant commits multiple firearm offenses, shooting at multiple victims, contemporaneously.

Discussion:  Trial court thought it had to impose 10-20-Life (775.087(2)) minimum mandatorys consecutive when defendant shot at multiple victims, but in fact trial court had discretion to impose sentences consecutively or concurrently.  Remand is required for resentencing because trial court has to have opportunity to exercise its discretion.

You Gotta Believe! (In the Innocence of This Man).

Calvin Willoughby v. State, 4D15-1524, Dec. 14, 2016

Held:  Error, though harmless error, for court to forbid defense counsel from asking certain jurors whether they could "believe" the defendant was innocent.

Discussion:  Defendant was going down the rows of prospective jurors during voir dire and asking them if they believed the defendant was innocent. One juror said "presumably", and the judge intervened and told the jury that whether they presumed the defendant innocent, not whether they believed him innocent, was the proper inquiry.  Then at a sidebar, the defense lawyer said that jurors had to believe the defendant innocent at that point, and if they didn't they weren't following the law.  The judge felt that the jurors' belief was not relevant, only their presumption, and forbade defense counsel to inquire as to the remaining jurors' belief in the defendants innocence.  The defense asked for a mistrial based on the Court limiting his voir dire and, in fact, doing so sua sponte without a state objection.

The Fourth found that it was error to preclude the defense from asking jurors about their "belief" in the defendant's innocence.  Fla. Std. Jury. Instr. (Crim.) 3.7 uses says a juror must "presume or believe the defendant is innocent".  Thus, the Court should have allowed the question, as it correctly stated the law.

However, the error was harmless and the Court did not err in denying the mistrial.  The Fourth says that there was no argument the error affected his jury selection strategy and the jurors did, in the charge conference, get Jury Instruction 3.7 that has the "presume or believe" language.  Thus, the error was not so prejudicial that it required a mistrial.  As to the fact that the Court intervened on its own, without a state objection, and stopped defense counsel from asking a proper question, the Fourth again found this not so prejudicial as to require a mistrial.  The Fourth acknowledged caselaw holding that a court cannot repeatedly intervene and interrupt defense counsel's flow and throw defense counsel off balance, but found that said caselaw deals with continuous and repeated court interruptions, whereas here there was only one sua sponte ruling.

My thoughts:  I understand the mistrial standard is high, and arguably this error is unlikely to have affected the outcome of the trial, so I see where the Fourth is coming from.  However, in situations like this, where defense counsel specifically pointed the Court to the language that clearly permitted this question to be asked (the standard jury instruction) and the Court's ruling was thus so clearly erroneous, I tend to think there should be a lower standard.  It is one thing for a lower Court to make an error, it is another for the lower Court to willfully ignore the law because they don't want to say they were wrong the first time, which seems to be what happened here.  If the latter occurs, I think the mistrial standard should be lower.  Otherwise, intentional errors negatively affecting the defense are incentivized, and there are certainly some judges out there who will take advantage of such incentivization.

Sorry State, But Fundamental Error Analysis Is Only For When They Don't Object.

Willie Lumdon v. State, 3D07-2324, Dec. 14, 2016

Held:  When defense objects to erroneous manslaughter by act instruction, review is based on harmless error standard, not fundamental error standard, and if defendant's intent is disputed, reversal will be required.

Discussion:  This is one of many decisions interpreting the Florida Supreme Court's decision in State v. Montgomery, 39 So.3d 252 (Fla. 2010).  Montgomery held that the then-standard jury instruction on manslaughter by act, which required an intent to kill (rather than the correct intent to commit an act that results in death) was erroneous and when it was the next-lesser-included-offense, as it generally is when a defendant is convicted of second degree murder, a new trial was required.

Many appellate courts have tried to limit the application of this ruling (generally ultimately unsuccessfully once reviewed by the Florida Supreme Court).  In Dawkins v. State, 170 So.3d 81 (Fla. 3rd DCA 2015), the Third said that in a case where a defendant didn't object to the erroneous manslaughter by act instruction, and there was some evidence to support an accurate instruction that was also given on manslaughter by culpable negligence, the error is not per se fundamental error.  Dawkins is in conflict with the Fourth in Dominique v. State, 171 So.3d 204 (Fla. 4th DCA 2015) and the conflict is on review in the Florida Supreme Court now (SC15-1613).  

In any event, returning to this case, the State argued that Dawkins could support affirmance here, given that the defendant had gotten an accurate manslaughter by culpable negligence instruction.  The Third said no, because in Dawkins the defendant hadn't objected to the erroneous manslaughter by act instruction, and here he had.  Thus, in Dawkins the standard of review was fundamental error (correctable on appeal even without objection, a high standard), and here it was harmless error (State must prove beyond a reasonable doubt that the error did not affect the conviction).  Here, there was a dispute over the defendant's intent (as indeed there is in almost every murder case) and thus the harmless error standard was not met.

Interestingly, there is a concurrence by Judge Wells that reads as if it could be a majority opinion and gives more details into the facts of the case and the specific instructions that were given, as well as the procedural history.  There does not, however, seem to be any difference in the reasoning, and there is certainly no difference in the result, between Judge Wells and the majority opinion by Judges Logue and Shepherd.  I wonder why Judge Wells decided to write separately, or, alternatively, if I am right that Judge Wells' concurrence was drafted to be the majority opinion, why the other judges decided not to join it.

My thoughts:  Good that the Third is limiting what I think is an incorrect decision in Dawkins.  I would bet that the Florida Supreme Court will reverse Dawkins based on what I see (and the Fourth saw) as pretty clear language in Haygood v. State, 109 So.3d 735 (Fla. 2013).  This opinion is also useful as a primer on the difference between harmless and fundamental error, and how much more favorable the former is than the latter for the defense.  The Court says "the determination that the error was not fundamental falls far short of holding the error was not harmful", language I could see using in future briefs.

The trial attorney was very astute here to object, given that this trial happened before the Florida Supreme Court had even decided Montgomery.  They saved their client from a 40 year sentence, even if it took almost a decade from when the trial happened until when the courts realized that trial attorney was right back then.  I looked it up and the trial attorneys appear to have been Herb Smith and Marissa Altman, those are the names on the judgment and sentence.  Great job by excellent lawyers!

Got a Mandate?  Wait 120 Days...Then You've Really Got a Mandate.

Derrick McPhee v. State, 3D14-1025, Dec. 14, 2016

Held:  An appellate court cannot recall a mandate more than 120 days after it issued, pursuant to Florida Rule of Appellate Procedure 9.340(a).

Discussion:  The Third initially PCA'd this appeal of the denial of a 3.850 (McPhee v. State, 143 So.3d 963 (Fla. 3rd DCA 2014).  The State moved to reopen the case to have transcripts of the evidentiary hearing below filed, which apparently the Court had never received or reviewed prior to the PCA.  Although the Third's opinion does not say this, the impetus for this was the fact that there is a pending federal habeas petition pending (McPhee v. Jones, 15-21799-Civ-Williams), and the federal magistrate realized that the Third had PCA'd without reviewing the evidentiary hearing transcripts.  Thus, the federal case was stayed for the Third to review them and issue a new opinion, something that the Third has now said it cannot do because of the 120 day mandate rule.  So, the ping pong ball bounces back to the Southern District.

My thoughts:  This case is illustrative of what I see to be a frequent problem with 3.850 appeals that are reviewed without a full record or what appears to be full consideration.  How can a 3.850 held after an evidentiary hearing be affirmed without review of the transcripts of the evidentiary hearing?