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?

 

It May Hit Close To Home When the Diamonds Are Stolen From a Law Office, But You Still Have to Prove Their Value.

Anthony Council v. State, 1D15-4382, Dec. 12, 2016.

Held:  Value of stolen property cannot be proven by testimony of one who did not purchase property or have independent knowledge of replacement value.

Discussion:  In a truly dastardly crime, scoundrels broke into that most sacred of spaces, a law office, and stole cash and jewelry, including rings.  The rings were apparently owned by the victim's mother, who had been gifted them by her late husband.  She did not know about diamonds and she did not know what the late husband had paid for the rings.  Thus, she was not competent to testify as to the rings' value.  Value still could have been determined by testimony as to the replacement cost for the rings, but here the owner simply testified that she had looked on a computer with a prosecutor and found an apparently comparable ring, and it was selling for a certain amount.  This was inadmissible because it was hearsay, and no appropriate exception (such as the business record exception) had been established.  The prosecutor apparently failed to lay the record to establish the computer records he relied on were business records.  Thus, defendant could not be sentenced for grand theft over $20,000, because the value of the ring was necessary to get the value of the stolen property over the $20,000 threshold, and the case was remanded for resentencing for theft between $10,000 and $20,000.

My thoughts:  Proving value can be tricky, but come on prosecutors, you can't just Google "diamond rings" with your victim, find the ring they say looks like the one taken from them, and then have them testify to what they saw listed as the price on the website.  Restitution/proof of value seems like one of those things that trial judges and prosecutors constantly screw up, not sure why that is.  Also, if you're gonna keep over $20,000 in your law office, you might want to invest in a good safe.

Tempting as It May Be, You Don't Get to Delegate Parenting to the Cops.

A.J.R. v. State, 2D15-3226, 2D15-3359, Dec. 9, 2016

Held:  Police officer is not authorized to take a child into custody for truancy when in the presence of his parent or guardian.

Discussion:  The case hinges on interpreting section 948.13(1)(b), which says that a child may be taken into custody “when the officer has reasonable grounds to believe that the child is absent from school without authorization or is suspended or expelled and is not in the presence of his parent or legal guardian, for the purpose of delivering the child without unreasonable delay to the appropriate school system site.”

Here the juvenile’s mother had called the police because her son wouldn’t go to school, and the officer told him he had to either go to school or a truancy center, and, apparently not finding either option appealing, the juvenile took off running, at which point the officer chased him, they had an altercation, and he was arrested for resisting without violence.  Resisting without violence requires that the officer be engaged in the lawful execution of a legal duty, so the legal question was whether the officer had the right to take the juvenile into custody in the first place.

No, said the Second, because, in analyzing the entire statutory scheme of truancy law, they see it as generally involving engaging the parents and returning children to their parents when they aren’t in school.  Here, the child was already with his parent.  The Second also talks about the “community caretaker” function of policing, which, for children, generally involves returning them to their parents, not taking them away from their parents.  An officer’s duty ends when a child is reunited with their parents.

The State argued, but the Court rejected, the “last antecedent” principle of statutory construction, where the “and is not in the presence of his parent” language would modify only “is suspended or expelled” and not “is absent from school without authorization”.  They said that the last antecedent principle will not be applied when an alternative construction is more reasonable, which, here, it is.

My Thoughts:  Makes sense to me.  Police officers should be solving or stopping crime, not taking custody of kids when they aren’t doing what their parents want them to do.

Don't Do Drugs.  If You Do Drugs, Don't Leave Them In Your Car.  If You Leave Them In Your Car, Hide Them.

State v. Damien Ross, 2D15-3682, Dec. 9, 2016

Held:  When drugs are in plain view through window of parked car, police are authorized to search the car without a warrant, even if there are no exigent circumstances.

Discussion:  The defendant fled from the police and the located the defendant inside a home and the car parked on the lawn.  After the defendant was arrested, an officer looked through the window of the car and saw drugs inside.  Without a warrant, police searched the car and found more drugs.  The trial court granted a motion to suppress, but the Second reversed.  They say that the automobile exception to the Fourth Amendment warrant requirement applies, and they interpret that exception as permitting the search of a readily mobile vehicle when the police have probable cause to believe it contains contraband, which they did once they looked through the window.  They rely heavily on their prior decision in State v. Green, 943 So.2d 1004 (Fla. 2d DCA 2006) for this conclusion.  That case found that there is automatic probable cause to search a car when police see contraband in plain view inside the car.

According to the Second, the trial court granted the motion to suppress based on a belief that “something more” happened between when the defendant was arrested and the drugs were seen, due at least in part to conflicting testimony between officers as to whether the windows were up or down.  But this is not enough, says the Second, because the trial court made no findings as to what the “something more” was and did not find that the officer who testified he saw the drugs lacked credibility.

My Thoughts:  As the Second describes the case, this is certainly the right result under Green.  I am skeptical that the automobile exception is as broad as the Second has found.  It makes sense if the car is capable of being driven away, but if the police have the keys (as in Green) or have the driver in custody (as in this case) it doesn’t seem that there is any real justification for lessening the normal Fourth Amendment warrant requirements.  However, there is certainly an argument to be made that if you leave your drugs in plain view in a car, you don’t have much to complain about if someone finds them and takes them, be it police officer or fellow aficionado.

The subtext of the opinion is that the trial judge didn’t believe the officer’s version of what happened, which does seem facially implausible based on the limited description in the opinioin.  The lesson as a practitioner is if you manage to get a judge to agree with you on officer credibility issues, you have to insulate those findings on appeal by having the Court make specific findings regarding why the officer was not credible, what the judge concluded based on the conflicts in the evidence, etc..  No appellate court would ever disturb a trial court’s bare finding that it didn’t believe a defendant, but all’s not fair in love and criminal defense, and if you don’t believe a police version of events you have to say why and say it thoroughly.

A Quartet of Pushbacks Against 3.850 Summary Denials.

Marshall Vaughan v.State, 5D16-2426, Dec. 9, 2016

Held:  Order on 3.850 must address an affidavit from the victim stating that she fabricated incident.

Discussion:  Defendant was convicted of felony battery, and filed a 3.850 with an affidavit from victim saying she fabricated everything and defendant never put his hands on her. The trial court summarily denied without addressing this affidavit.  This was error, and case remanded for trial court to determine whether evidentiary hearing required.

My thoughts:  Why not just remand for an evidentiary hearing?  Considering standard is that affidavit must be taken as true unless refuted by other record evidence, and victim’s affidavit that crime that police didn’t witness is pretty much automatically sufficient for evidentiary hearing, seems like a waste of time to not just remand for hearing.  I do a lot of 3.850’s and I generally feel like judges are way too loathe to just have an evidentiary hearing.

Jude Lahens v. State, 5D15-2569, Dec. 2, 2016

Held:  Error to summarily deny 3.850 because: 1) can raise claim in 3.850 even if could have been fundamental error on direct appeal; 2) counsel ineffective for failing to seek to admit defendant’s Stand Your Ground testimony despite explicit hearsay exception, 90.803(22), for such testimony; and 3) justifiable use of force instruction was not supported by evidence as to victim.

My thoughts:  Not a ton of facts here, but for appellate court to say trial court wrong to summarily deny three separate 3.850 claims is unusual and signals they think his claims have merit.  This guy needs a lawyer.

Brett Fournier v. State, 5D16-2329, Dec. 2, 2016

Held:  Error to summarily deny 3.850 claim that counsel failed to convey defendant’s acceptance of plea offer to State.

Discussion:  3.850 alleged defendant had received a ten-year plea offer, and told his lawyer he was accepting it, but lawyer never told the prosecutor this before the State revoked the offer.  He alleged if counsel had conveyed his acceptance, State wouldn’t have revoked offer and court would have accepted it, and he would have a lower sentence than he does have.  This was a facially sufficient post-conviction motion.

My thoughts;  Seems like a no-brainer.  If you’re denying a 3.850 motion, that means you are accepting the facts the defendant puts forth and saying they wouldn’t warrant relief even if proven.  The duties of a lawyer don’t get much more basic than facilitating the acceptance of a plea offer that has been made and the defendant wants to take.

Dylan Harris v. State, 5D16-2888, Dec. 2, 2016

Held:  Error to summarily deny 3.850 claim that counsel didn’t inform him of five-year plea offer.

Discussion:  3.850 alleged prosecutor offered five years and his lawyer didn’t tell him about it.  He alleged the Alcorn factors (he would have taken offer, State wouldn’t have withdrawn it, court would have accepted it, and sentence would have been lower than ultimate sentence imposed).  The State filed a response saying that they never made a five year offer, and the trial court summarily denied.  This was error because the State’s claim was not record support that the offer was never made, nor did they cite any such record support.  “Documents prepared to refute claims in a postconviction motion are not substitutes for an evidentiary hearing.”

My thoughts:  Gee, I wonder what’s going to happen at this evidentiary hearing.  Gonna be quite the credibility contest between the defendant and the prosecutor. 

Do You Know How Fast You Were Going?  No?  Well, Uh, Me Neither, But I Know It Was Too Fast, and That's All I Need to Know.

Galvin Gallardo v.State, 5D16-1399, Dec. 2, 2016

Held:  Lawful to stop someone for speeding based on officer’s visual observation of speeding without independent proof.

Discussion:  The officer said she saw the defendant going approximately sixty miles per hour in a forty-mile-per-hour speed zone.  Visual observations are enough and do not require independent proof like a radar gun.  The Fifth distinguished its own opinion in DHSMV v. Roberts, 938 So.2d 513 (Fla. 5^th DCA 2006) on the grounds that there all they had was an affidavit saying the officer had seen the defendant speeding, whereas here there were details as to the officer’s vantage point and opportunity to see the defendant speeding.

My thoughts:  If the officer is credible and the speeding is obvious, I don’t see any reason why they shouldn’t be able to stop someone for speeding even if they don’t have a radar gun or aren’t themselves driving and so can’t do a speedometer calibration.

Juveniles Really Can't Be Sentenced Without Real Release Opportunity.

Thomas Kelsey v. State, SC15-2079, Dec. 8, 2016

Held:  All juveniles currently sentenced to more than twenty years in state prison are entitled to be resentenced pursuant to chapter 2014-220, Laws of Florida, so that their sentences will be imposed with individualized sentencing considerations due to their juvenile status.

Discussion:  This is the latest in a series of recent juvenile sentencing decisions by the Florida Supreme Court that have thoroughly rejected lower courts’ attempts to minimize or avoid the impact of the United States Supreme Court’s Graham/Miller cases on Florida’s juveniles.  The FLSC again says emphatically that juveniles are different than adults, and this time it draws a line as to where juvenile sentences have to be redone under the post-Miller/Graham juvenile sentencing scheme enacted by the Florida Legislature in chapter 2014-220.  Below, the First District in Kelsey v. State, 183 So.3d 439 (Fla. 1^st DCA 2015) held that a forty-five year sentence for a juvenile was constitutional because it was not a de facto life sentence, and thus Graham did not apply.  The FLSC has thoroughly rejected that reasoning and conclusion.

To briefly review, in Graham v. Florida, 560 U.S. 48 (2010), the Court held that the a juvenile life without parole sentence for a nonhomicide offender was cruel and unusual punishment in violation of the Eighth Amendment.  But beyond that holding, the Court talked very specifically about the need to give juveniles “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” and that they must be given “a chance to demonstrate maturity and reform”.  The underlying sentiment of Graham and the rest of the Supreme Court’s jurisprudence in this area, which includes Roper v. Simmons, 543 U.S. 551 (2005) (juvenile death penalty unconstitutional), Miller v. Alabama, 132 S.Ct. 2455 (2012) (extending Graham to juvenile homicide offenders), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016) (Graham/Miller are retroactive) is that juveniles are fundamentally different from adults for three reasons:  1)  children have a lack of maturity and an underdeveloped sense of responsibility which leads to recklessness, impulsivity, and heedless risk-taking; 2) children are more vulnerable to negative influences and outside pressures, including from their family and peers, and have limited control over their environment and limited ability to extricate themselves from horrible, crime-producing settings; and 3) a child’s character is not well-formed, his traits are less fixed than those of an adult, and actions, even horrific actions, taken as a child are less likely to evidence irretrievable depravity.

This language may seem plain, but it has not been viewed that way by many prosecutors and lower court judges.  Consistently since Graham and Miller, there has been an effort to limit those cases to their explicit facts (i.e., only to juveniles sentenced to life, meaning to some courts a 90-year sentence was fine, because it was not explicitly a life sentence, and to most courts a life sentence that included parole, a system which barely exists other than as an academic topic in this state, was acceptable).  The Florida Supreme Court has been consistent in adhering to the spirit, not the letter, of Graham/Miller and their progeny.  In Henry v. State, 175 So.3d 675 (Fla. 2015) they reversed a 90-year sentence for a juvenile, because, although not literally a life sentence, such a sentence did not provide a meaningful opportunity for release upon demonstration of maturity and reform.  In Atwell v. State, 197 So.3d 1040 (Fla. 2016) they found that a life with parole sentence was still illegal under Miller, because neither the life with parole sentence or Florida’s parole system provides for individualized consideration of the unique features of a juvenile offender.  Atwell, incidentally, has some solid language that might be useful in an attack on the constitutionality of Florida’s parole system as a whole at some date.

In any event, the next frontier for lower courts was long sentences that were not so long that they amounted to de facto life sentences.  The First DCA, in this case, and the Second DCA in Williams v. State, 197 So.3d 569 (Fla. 2d DCA 2016) found that such sentences were not illegal precisely because they were not de facto life sentences, and thus Graham and its admonitions about the differences between juveniles and adults and the need to give juveniles an opportunity for release upon reform were inapplicable.  The Fifth DCA, to its credit, issued two very solid opinions, Tyson v. State, 199 So.3d 1087 (Fla. 5^th DCA 2016) and Peterson v. State, 193 So.3d 1034, 1038 (Fla. 5^th DCA 2016), which surprisingly get no mention in the Florida Supreme Court’s Kelsey opinion but which clearly anticipated it.  The Fifth District found that lengthy term-of-years sentences for juveniles, without a review mechanism and the opportunity for early release, and without a sentencing hearing that considers the unique characteristics of the juvenile offender, are unlawful.  This is what Kelsey says as well.

Ultimately, per Kelsey, every juvenile who was sentenced before the new 2014 juvenile sentencing law took effect and was sentenced to more than 20 years gets a new sentencing hearing.  The issue is not the length of the sentence but the fact that the offender being sentenced is a juvenile, who is thus entitled to certain considerations that the pre-2014 sentencing statutes did not provide.  There has to be a “meaningful opportunity for early release based on a demonstration of maturity and rehabilitation”, and if there isn’t one, the sentence is illegal.

Kelsey also makes a related double jeopardy finding.  The defendant there had initially been sentenced to life, and then was resentenced under Graham to 45 years.  He argued that on the resentencing that he sought, the new sentence was capped at 45 years.  Essentially, he wanted the 45 years (or something less) with the judicial review provisions of the new juvenile sentencing laws.  The Florida Supreme Court rejected that part of his argument.  Because the 45 years was not a legal sentence (because it was unconstitutional as the opinion held), the Double Jeopardy Clause did not apply to it and he had no protection against a higher sentence.  In other words, the benchmark for whether the defendant would be in a worse position than the original sentence was the original life sentence, not the later 45 year sentence (although this is hard to understand because the original life sentence was also illegal, as Graham clearly held).  In any event, the State could seek a life sentence if they saw fit.  What the defendant was entitled to was a brand new sentence that complies with 2014-220.  This portion of the opinion saw a pointed concurrence from Justices Pariente, Labarga, and Perry, essentially saying that, yes, a life sentence is a marginal possibility under the law, but such sentences should be vanishingly rare for juveniles and, under the facts of this case, should be impossible.

My Thoughts:  Although this decision seemed obvious to me based on the Henry case and the Graham/Miller language, it obviously wasn’t to many.  It will result in a lot of juveniles being resentenced, because there are a lot of them who have more than twenty-year sentences.  I question why the twenty-year line makes sense.  Any prison sentence is a lengthy sentence for a juvenile, if they were sentenced before the law said their juvenile status had to be accounted for, why should they not get a new sentencing where their juvenile status has to be taken into account?  However, to be fair, the FLSC does not say that this doesn’t apply to juveniles sentenced to less than twenty years, just that it does apply to all juveniles sentenced to more than twenty years.  They do not foreclose a juvenile sentenced to ten years from making the argument that she needs a chance to demonstrate she has changed and isn’t being afforded it.

In the long run, the question is going to be how this judicial review process plays out.  It is too early to know that.  I have never had a client go through the judicial review process, nor have I heard from anyone else who has.  I have my concerns.  Will it provide a meaningful opportunity for release?  Or will judges just focus on the often-horrific nature of the underlying crimes rather than whether the person who committed them as a child has demonstrated meaningful reform.  Also, are Florida’s prisons even set up to allow opportunities for such meaningful reform?  If not, isn’t that a Constitutional issue?  If the child is being confined by the State in a place that offers no education, no positive socialization, no opportunities to develop character, then can we blame the child when they are still underdeveloped twenty years later?  If we believe juveniles can be reformed, don’t we have an obligation to provide the opportunities to achieve such reform?  Let’s just say I think we are just at the beginning of a juvenile sentencing revolution that I have some hope could ultimately affect the very nature of the criminal justice system and what we as a society expect it to accomplish.

Want to Check Out My Cell Phone?  Get a Warrant.

State v. K.C., 4D15-3290, Dec. 7, 2016

Held:  An abandoned cell phone may not be searched without a warrant.

Discussion:  Significant Fourth Amendment case from the Fourth DCA.  The police conducted a traffic stop of what turned out to be a stolen car and the occupants ran and were not caught.  Left behind in the car was a cell phone, which was seized by the police (no problem with the seizure).  Presumably to find out who had been in the car, the police turned the phone over to their forensic expert, who cracked the password protection and linked the phone to the defendant, hence the case.  The police never sought a warrant, relying instead on the abandonment exception to the Fourth Amendment’s warrant requirement.

The Fourth extends the US Supreme Court’s ruling in Riley v. California, 134 S.Ct. 2473 (2014) by finding that the special protections afforded cell phones also apply to abandoned cell phones.  Riley distinguished cell phones from other property which police typically search, and which has typically been the subject of Fourth Amendment jurisprudence, because of cell phones unique power and portability.  On a cell phone, we can and do carry with us everywhere an immense amount of personal information that we would never carry in physical form.  The holding of Riley was that cell phones seized incident to arrest cannot be searched absent a warrant.  The Fourth extends the logic of Riley to abandoned cell phones, at least those protected by a password.  The password, they seem to suggest, means the contents of the phone are not truly abandoned, since the whole point of a cell phone password is to keep others from looking through the phone, even when out of one’s possession.  But the Fourth’s opinion does not seem ultimately to rest on the password protection (although the holding is limited to password protected phones), but on the plain fact that we are talking about a cell phone, full of potentially sensitive and private data, not a cigarette packet (United States v. Robinson, 414 U.S. 218 (1973) or a vehicle (Arizona v. Gant, 556 U.S. 332 (2009)) and cell phones are simply different and worthy of more Fourth Amendment protection.  We don’t carry around the whole of our private lives in our cigarette packets or vehicles, and we don’t have the same sort of expectations of privacy for those things.

My Thoughts:  I think this is a significant Fourth Amendment decision that will be of increasing relevance as law enforcement and technology continue to intersect.  It is well-reasoned and I believe will endure, likely even outside the State of Florida (interestingly, the Fourth split with the only other two courts in the country to consider the issue, one in South Carolina and one in Washington).  And it has the virtue of adhering to/announcing a clear rule that is easily followed: Want to search?  GET A WARRANT.

Defendants Who Act Crazy Might Be Crazy--Wouldn't Be Crazy to Find Out.

Xavier Moore v. State, 1D15-4848, Dec. 5, 2016

Held:  Abuse of discretion to fail to declare mistrial and hold competency hearing “following Appellant’s inexplicable testimony during the state’s cross-examination, which echoed Appellant’s earlier behavior in the trial proceedings”.

Discussion:  Courts are obligated to conduct a competency hearing when they have reasonable grounds to question competency.  The First does not describe in their opinion what the defendant did that constituted said reasonable grounds to question his competency.

Curious, I pulled the briefs.  The competency issue was the defendant testifying on cross-examination that a phone call that had been played of the defendant talking to the victim’s mother was not really him, and a video recorded interview of him giving a statement to an investigating detective was not really him and that he was not even in the room when the videotaped interview of him was taking place. Both prior statements were consistent with his trial testimony and defense so it was particularly irrational for him to deny the obvious fact that they were made by him.  Obviously, since the specifics of the behavior that gave rise to a reasonable question as to competency are not in the First DCA opinion, they are not citable as precedent, but I like to know what the facts an opinion is based on are in any event.

The First also says that the lower court can, on remand, do a retroactive competency hearing if possible, but if not, must do a new trial.

My thoughts: I find opinions that reverse without giving the facts as to why they are reversing only marginally more helpful than opinions that affirm without giving the facts as to why they are affirming (i.e. PCA’s).  Nevertheless, it is good that appellate courts are guarding against the trial of incompetent people.  I also find the retroactive competency procedure to be a farce.  To my mind, if one didn’t get doctors at the time to do an evaluation, how can competency possibly be determined?  The whole underlying principle of competency is that mental health and mental status is a fluid thing.  If you’ve ever dealt with an incompetent or potentially incompetent defendant, you know it’s hard enough to figure out what’s inside their head now, let alone retroactively determining what was in their head two years ago, which is probably how long has elapsed since the trial after the appellate process and remand.  My feelings notwithstanding, courts continually seem to allow this.  Hopefully a case will come up that will present a good set of facts to mount a challenge to this procedure.

Second District Declares Court Not Staffed by Aliens.

Lawrence Gudmestad v. State, 2D14-3140, Dec. 7, 2016

Held:  1)  Defendant’s out-of-court statements that police officers were aliens are not hearsay because not admitted for the truth of the matter, and thus impeachment of the defendant’s credibility with prior convictions inadmissible.

                2)  New competency hearing required, and court questions defendant’s “rational” understanding of proceedings based on his belief that police and court personnel are aliens.

Discussion:  When defendant was arrested, he called his fiancée an “alien bitch’ and called police officers “green aliens” and “green parasites”.  When he was being treated by paramedics after being shot by police, he said the paramedics looked like aliens and the ambulance an alien spacecraft.  He was evaluated for competency and the experts found that he had a genuine schizoaffective disorder that manifested in a fixed delusion that aliens had infiltrated Earth and disguised themselves among the humans.  Among the aliens were the judge, prosecutor, and jury.  The experts said that defendant was not malingering, but one expert said he understood the adversarial nature of trial and roles of parties and was competent, which the trial court then found him to be.

At trial, the State moved to introduce the defendant’s prior convictions as impeachment if the defense elicited any statements regarding aliens.  The State’s reasoning was that such statements were exculpatory and opened the door to his prior convictions.  The judge granted the motion based on Fla. Stat. 90.806(1), which provides that where a hearsay statement is admitted, the credibility of the declarant may be attacked as if he testified as a witness.  The defense did cross-examine on the defendant’s statements about aliens the night of the incident, and the State was permitted to introduce the priors.  The Second found the trial court abused its discretion in this ruling, because to permit impeachment, the allegedly exculpatory statements about aliens had to be hearsay.  Hearsay, as we hopefully all know, must be offered to prove the truth of the matter asserted.  Counsel was not admitting the defendant’s statements about the police and paramedics being aliens in order to prove that they were in fact aliens.  Thus, these statements were not hearsay.  As they were not hearsay, impeachment under 90.806(1) was not permissible.

This was not harmless error.  The defense was insanity.  The prior convictions affected the probability that the jury would acquit based on insanity.  When cases, like this one, turn on a defendant’s credibility, improper admission of the defendant’s prior convictions is not harmless because those convictions go directly to his credibility.

The Second also noted its concern with the defendant’s competency, ordering a new competency hearing before a new trial and noting in dicta that the competency test is “whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him”.  Dusky v. United States, 362 U.S. 402, 402 (1960).  The Second said it is “skeptical” that a defendant who “honestly believes he is being tried by extraterrestrials can be said to have a rational and factual understanding of the proceedings” and ordered that, on remand, the court “delve into this aspect o the experts’ opinions more deeply” and consider the defendant rational and factual understanding of the proceedings with “due consideration”.

My thoughts:  First of all, a very well-written opinion by Judge Northcutt.  Concise, clear, and explains in plain language exactly what the facts are and what the legal error was.  The hearsay issue seems obvious when you read about it, but it is the sort of issue that in the heat of trial lawyers often miss.  If one wants to admit an out-of-court statement, one must always think about why, and if there is a plausible reason it is not for the truth of the statement, one must make that argument.  The competency facts are egregious, and it is somewhat surprising that the trial judge permitted the trial to go forward without a better competency record, but the reality is that in the hustle of trial work too often competency just becomes another box to check off:  “OK, we have a doctor who’s willing to say he’s competent, check the box and set the trial date” without real consideration of the unique mental situation of the potentially incompetent defendant.  I am glad to see the Second recognizing this and ordering a more thorough determination on the second go-round.

Keep Drug Offender Probation for the Druggies.

Caineth Orr v.State, 2D15-5131, Dec. 7, 2016

Held:  Drug offender probation may not be imposed for the crime of resisting an officer with violence.

Discussion:  Per statute (948.20(1)), drug offender probation may be imposed when a defendant violates certain portions of the drug prohibition statute (893.13) dealing with purchase or possession, or any other nonviolent felony.  The statute defines “nonviolent felony” as a third-degree felony burglary or any other felony that is not a forcible felony under section 776.08.  Resisting with violence (843.01) does not fall within any category.  This is so because the Second has found that resisting with violence is a forcible felony under 776.08 in Walker v. State, 965 So.2d 1281 (Fla. 2d DCA 2007).

The Court rejected a State argument that I couldn’t understand, that the limits on drug offender probation apply only when drug offender probation is imposed in lieu of another sentence, not in addition to another sentence, as here the defendant was sentenced to a jail term followed by drug offender probation.  In any event, the Second quickly rejects that argument.  948.20(1) governs.

The Second also says that on remand if the trial court wants it can impose regular probation with a special condition of drug treatment, assuming that is a special condition that is reasonably related to the offense and promotes the rehabilitation of the defendant or the protection of the public.

My thoughts:  Pretty straightforward statutory interpretation opinion.  One of those you get as a lawyer and you realize the trial court made a mistake, even if it’s not one that’s going to make much of a difference for your client, at least you have something to argue.  I will note that, although it helps the defendant in this case, the fact that resisting with violence, which in reality can be anything from a serious assault on an officer to a simple incidental touching with absolutely no harm done during the stressful and sometimes contentious process of an arrest, qualifies as a “forcible felony” is wrong.  Look at the list of enumerated offenses in 776.08 and compare them to resisting with violence.  The significance being that forcible felony priors permit serious and sometimes mandatory sentencing enhancements down the road, so that minor run-in with a cop could turn into a mandatory life sentence down the road as a Violent Career Criminal.

Hey What's Your iPhone Passcode?  No Seriously, You Have To Tell Me, I'm the Government.

State v. Aaron Stahl, 2D14-4283, Dec. 7, 2016

Held:  The Fifth Amendment privilege against self-incrimination does not protect an individual from being compelled to give the government the passcode to their cell phone, because it is a foregone conclusion that the government knows that the passcode exists and the defendant has it.

Discussion: The defendant was alleged to have used his cell phone to take upskirt photographs of women in a dressing room.  The police seized the phone and were granted a search warrant to access its contents.  However, the phone (an iPhone 5) was passcode protected and the police could not access it without the defendant giving them the passcode.  Importantly, the phone was seized after the fact and the police did not know it was the phone allegedly used to take the upskirt pictures, though obviously they suspected it was.  The State filed a motion to compel him to give them the passcode.  He argued, and the trial court agreed, that the Fifth Amendment privilege against self-incrimination applied as the passcode was testimonial and the foregone conclusion did not apply.

There was no dispute that the state was seeking to compel the defendant to give information, and that that information was incriminatory.  The question was whether the evidence the State sought, the passcode, was testimonial.  Testimonial communications, in this context, are those which compel an individual to use the contents of their own mind to explicitly or implicitly communicate some statement of fact.  According to the Second, the communication at issue here, the passcode, “was sought only for its content and the content has no other value or significance”, because the passcode was not itself an acknowledgement that the defendant had committed video voyeurism or that the phone contained evidence thereof.  Thus, they seem to believe, though they do not explicitly say, that providing the passcode was not testimonial and thus was not protected by the Fifth Amendment.  The Second cites the enduring standard that the government can force someone “to surrender a key to a strongbox containing incriminating documents” but not “the combination to his wall safe”.  Obviously, the passcode is more like a combination (something known inside the defendant’s mind) than a key (a physical object anyone can use just by possessing it), but the Second essentially says that this distinction, drawn by many courts including the US Supreme Court, is outdated and has not stood the test of time, and they will not rely on it.

The Second spends a decent amount of time on the “foregone conclusion” doctrine, which basically says that if the government already knows that the evidence they are seeking exists, and is just seeking access to it, then the defendant is not being asked to tell the government anything they don’t know and doesn’t have a Fifth Amendment privilege.  The Second focuses its foregone conclusion analysis on the passcode, not the contents of the phone that the passcode would reveal, and says that the passcode is a foregone conclusion because the government knows it exists and the defendant knows it.  They say “the question is not the State’s knowledge of the contents of the phone; the State has not requested the contents of the phone or the photos or videos on Stahl’s phone”.  Ultimately, as far as I can tell, the Second’s logic is that the defendant has to give up the passcode because the government already knows it exists and he has it, so he has no Fifth Amendment privilege in it.

The case also has a somewhat interesting standard of review section.  The State initially appealed the denial of their motion to compel, but when the Court asked them to show cause why that appeal should not be dismissed as one from a non-final, non-appealable order, they moved for review by petition for writ of certiorari, which is how the case ultimately was reviewed.  The Second says that certiorari is appropriate where the State has demonstrated that a ruling significantly impairs their ability to prosecute in a way that could not be remedied via post-judgment appeal and establishes that the trial court has violated a clearly established principle of law.  By taking the case up on certiorari and reversing, then, the Second is finding that the inapplicability of the Fifth Amendment privilege is a “clearly established principle of law”.

My thoughts:  This case is wrongly decided, and I don’t think it’s even close if you read the precedent.

First, the State should never have been able to get up on certiorari given the heightened standard and that the Second was clearly making new law here, not applying some clearly established principle of law.  Even they don’t try to argue otherwise, they simply ignore that issue in their opinion.

Second and more importantly, the analysis misses the mark.  The State doesn’t want the passcode for the passcode, they want it because it will lead them to the contents of the phone, where potentially incriminating information the defendant doesn’t want to give them access to resides.  No cases apply the Second’s “foregone conclusion” analysis to the passcode, they apply it to the information the government is seeking.  If the government already knows that information exists, foregone conclusion may apply.  If they don’t, it doesn’t.

There is a thorough analysis in United States v. Doe (in re Grand Jury Subpoena Duces Tecum), 670 F.3d 1335 (11^th Cir. 2012), which the Second cites throughout its opinion without acknowledging it reached a diametrically opposed result.  In Doe, the government had hard drives that were encrypted, presumably (though not definitely) by the defendant.  On those hard drives, the government believed (but did not know), was child pornography.  The government couldn’t access the drives without the defendant providing the decryption password.  The 11^th said that the defendant did have a Fifth Amendment privilege against decrypting the drives, because decrypting them would require “the contents of his mind” and because the existence of specific incriminating information on the hard drives was not a foregone conclusion.  The foregone conclusion analysis was specific to the content of the drives, not the decryption process.  If the Second’s analysis had been applied in Doe, the 11^th would have ruled for the government, because the government knew there was a decryption password and the defendant had it.  That, correctly, was not the analysis, because the issue in terms of the Fifth Amendment is not the password, but what the password will reveal.

The Second also cites the Supreme Court in United States v. Hubbell, 530 U.S. 27 (2000), which also ruled against the government.  This was a case related to the Whitewater investigation, and the government had given the defendant immunity to get him to provide certain documents.  The government then sought to use those documents to prosecute him, and said that the immunity applied to the act of production (i.e. they wouldn’t tell the jury that the defendant had turned over the documents) but not the documents themselves.  The Supreme Court held that because the government needed the defendant’s help to acquire the information they then used to prosecute him, he had a Fifth Amendment privilege in that information.  And, the “foregone conclusion” rationale did not apply, because the government did not know of the existence or whereabouts of the specific documents produced until the defendant produced them.  The government simply knew the defendant was a businessman and logically would have business documents, they didn’t know the specifics of what those documents were or what they’d contain.  Again, if the Second’s analysis were correct, the outcome would be different, because the foregone conclusion analysis would look to whether the government knew the defendant had the ability to provide the documents (yes), rather than what actually is supposed to be looked at, whether the government knew what the documents contained (no).  See also SEC Civil Action v. Huang, 2015 US Dist LEXIS 127583 (E.D. PA. Sept. 23, 2015) (foregone conclusion doctrine inapplicable to smartphone passcodes if government only knows the defendant possessed and had sole access to smartphones, and does not know what is on them, and finding the requirement that defendants produce smartphones passcodes testimonial and protected by the Fifth Amendment).

And, the United States Supreme Court, in Doe v. United States, 487 U.S. 201 (1988) has said that testimonial statements protected by the Fifth Amendment are those which “explicitly or implicitly relate a factual assertion or disclose information” and the “expression of the contents of an individuals mind” is testimonial.  This is also the case where the Supreme Court majority approved Justice Stevens’ distinction (in dissent) between the key to a box containing incriminating documents (not protected by Fifth Amendment) and the “combination to a wall safe” (protected).  The obvious reason for the distinction is that the key is a physical object, the combination is inside the defendant’s mind.  The Second deals with this by saying that it is outdated because of advances in technology.  My understanding of Supreme Court precedent is that lower courts are bound to follow it, even if they disagree with it, unless or until it is overruled.

I would certainly hope that the Florida Supreme Court (and if necessary the US Supreme Court) takes up this case.  The literal import of the Second’s opinion is that the government could force any of us to give them the passcodes to their phones, for any or no reason.  In this case, the government had a warrant for the phone, but there is nothing in the opinion limiting it to situations where a warrant exists, and the probable cause for a warrant standard is unrelated to the Fifth Amendment privilege standard.  After all, according to the Second, by giving the government our passcodes we are not giving up anything that they don’t know we already have (the knowledge of what the passcodes are).

Lets Play "What Did Those Crazy Legislators Mean".

James Baxter v. State, 2D14-5661, Dec. 9, 2016

Held:  A dangerous sexual felony offender sentenced pursuant to Florida Statutes sec. 794.0115(2), which says such an offender “must be sentenced to a mandatory minimum term of 25 years imprisonment up to, and including, life imprisonment” can be sentenced to a mandatory minimum of more than 25 years even if their offense is otherwise punishable by a lesser maximum, certifying conflict.

Discussion:  The Fifth District in Wilkerson v. State, 143 So.3d 462 (Fla. 5^th DCA 2014) found that if the mandatory minimum of the DSFO law exceeds the statutory maximum for the underlying offense (in both cases a second degree felony punishable by up to fifteen years) then the twenty-five year minimum mandatory must be imposed.  The Second says that the statutory language allows any minimum mandatory sentence, even if the underlying crime carries a lesser sentence.  The FL Supreme Court will have to resolve the conflict.

My thoughts:  I think the Fifth is right.  The language of 794.0115(6) says that “if the mandatory minimum term of imprisonment imposed under this section exceeds the maximum sentence authorized [for the underlying crime] the mandatory minimum term of imprisonment under this section must be imposed.  If the mandatory minimum term of imprisonment under this section is less than the sentence that could be imposed [for the underlying crime] the sentence imposed must include the mandatory minimum term of imprisonment under this section.”  That second clause would make no sense of the Second is right and the mandatory minimum is whatever the judge wants it to be even if the statutory max is lower, because then it would be impossible for the mandatory minimum term to be less than the sentence that could be imposed, except, I guess, for a death case.  I think the statutory language makes it clear that the legislature meant the 25 year min man had to be imposed for a crime with a lower statutory cap.