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?