Recent Updates
April 28, 2010
State Must Prove Defendant's Knowledge of Driver's License Suspension
April 13, 2010
Sentencing Commission Votes to Eliminate Recent Criminal History Points
October 15, 2009
Consent to search inside of vehicle does not extend to locked containers
October 14, 2009
Making phone calls to get drugs for personal use not a felony
October 07, 2009
Duval County schools agree to reduce number of students getting arrested
Criminal
?OBVIOUS? PRESERVATION OF ERROR ISSUE
August 31, 2009
One of the most important things a trial attorney can do is preserve errors for appeal. Unfortunately, it is all too common for an attorney to focus only on winning the case and not consider the need for an appeal should the outcome be different. However, part of being a good trial attorney is knowing how to build a record for appeal.
Appellate courts are "reactive" and only address errors on matters ruled upon by a lower court or plain errors. Therefore, unless the matter is a jurisdictional or fundamental error, any objection is waived unless it is raised in the trial court. The chief requirement to preserving an error is that the objection be contemporaneous and specific. This means that the objection must be made at the time of the alleged error, with a few exceptions, and the legal grounds for the objection must be stated. And, only those grounds can be argued on appeal. For example, if an attorney is examining a witness during trial, and he asks an improper question, opposing counsel must object at the time the question is asked and state the legal reason why the question is improper. On appeal, he must limit his argument to the grounds stated at trial.
There are more specific rules for different stages of a case, some more stringent than others. For example, the preservation of an error made during jury selection is very complicated and requires several steps to be followed in order to adequately preserve the error for appeal. Motions in Limine and standing objections also raise complicated preservation issues.
Ultimately, even if the error is obvious and it is clear that the attorney had a problem with what was taking place, when the error is not properly preserved, there can be no appeal on the matter. This is a hard lesson that is often learned through experience, at the expense of the client.
This is exactly the problem that was discussed in a recent Florida case. In State v. Calvert, 34 Fla. L. Weekly D1637a (Fla. 4th DCA 2009), a trial judge accepted the guilty plea of a defendant charged with a second-degree felony. The State recommended adjudication and eighteen months in prison, but the judge instead withheld adjudication. According to Florida law, a judge may not withhold adjudication for a second-degree felony unless the State requests a "withhold" in writing or the judge makes written findings that the withholding of adjudication is reasonably justified. Fla. Stat. § 775.08435(1)(b) (2008).
When the judge announced that he was withholding adjudication, the State asked the judge what the reason was for his decision. The judge replied that the defendant had no history and he wanted to "give [the defendant] the best shot of getting over" this mistake. The State then said, "Just for purposes of the record, obviously it would be over the State's objection." To which the judge said, "Okay. All right. Thank you. Good-bye."
On appeal, the court held that this was not sufficient to preserve the error for appeal. The objection was contemporaneous, but it was not specific. The State gave no basis for the objection, indicating that it was obvious why they were objecting. While it might be obvious in this case, foregoing the specificity requirement when grounds are obvious could lead to even more problems. In different circumstances, grounds for the objections may not be clear to the appellate court.
Even in this case, the grounds for the objection are not clear, as the appellate court noted. Was the State objecting to the lack or written findings, the finding that a reasonable basis existed, or anticipating that the judge would not submit the written findings at a later time? Because the State failed to clearly state the grounds for its objection, the sentence in the lower court was affirmed.
Had this mistake been made by a defense attorney, the defendant would be paying the price. Don't put your future in the hands of an inexperienced attorney who does not understand the importance of preserving errors at trial. At Arnold & New, our attorneys have more than thirty years of combined experience. Let us put that experience to work for you.
Improper Jury Instruction on Law of Principals
August 24, 2009
A man convicted of battery in Duval County successfully challenged his conviction based on an improper response to a jury question. At trial, after each party had made their closing arguments, the jury submitted a question to the judge. They asked whether they could still find the Defendant guilty of a battery if they were not able to decide who had actually fired the weapon. The judge responded by reading the standard jury instruction on the law of principals, which basically states that if a defendant helped another person commit a crime, the defendant is a principal and must be treated as if he had committed the crime.
Defense Attorney Makes Successful Double Jeopardy Challenge
August 17, 2009
In Cross v. State, 34 Fla. L. Weekly D1376a (Fla. 1st DCA 2009), a defense attorney challenged the trial court’s denial of a motion for post conviction relief. One of the arguments was based on a double jeopardy violation.
The defendant was arrested when he robbed a business and stole an employee’s car as he left the store. Based on those actions, the State charged him with two counts: armed robbery of a business and grand theft. However, at trial, the defense argued that these charges could not be brought and that the defendant could not be punished for both crimes pursuant to the Double Jeopardy Clause of the Constitution.
Crack 1:1 ratios
August 13, 2009
The history of the last twenty five years of those arrested for crack cocaine offenses seems to be coming to an end. Currently we have many of these cases are there appears to be some real relief in the form of the sentencing guidelines coming for these clients as opposed to just last year. If you know someone arrested in Jacksonville for selling crack cocaine, or arrested in Jacksonville for selling any drugs, contact Arnold and New at 904-731-3800. Below are several links to other stories on this issue:
- Is the new DOJ about to crack the stalemate over fixing the crack disparity?
- Watching the webcast of the Senate crack disparity hearing
- New York Times editorial on crack sentencing
- With the new DOJ advocating completely eliminating crack/powder disparity, now what?
- Has there been any in-court impact from DOJ's new crack sentencing policy?
- Thoughtful new district court opinion adopting 1:1 crack/powder ratio
Battery with a Cheeseburger
August 07, 2009
A Florida man was charged with domestic violence for committing an unusual battery on his girlfriend: battery with a cheeseburger. On the day of the incident, the young couple sat in their car eating dinner from McDonald's when they began to argue. The defendant became angry and would not let the victim out of the car when she tried to leave. So, the victim threw the defendant's drink out of the car. Incensed by her actions, the defendant grabbed the victim and pushed a McDonald's cheeseburger into her face. She immediately got out of the vehicle, but the defendant followedher and again smashed the sandwich into her face.
Life Sentence in Felony Murders for Juveniles Making Way Through the House
August 05, 2009
On May 6, 2009, a bill was introduced in the House of Representatives that will affect all juveniles who have been sentenced to life in prison. The bill, HR 2289 - The Juvenile Justice Accountability and Improvement Act of 2009, was introduced by by Bobby Scott (D-VA) and John Conyers (D- MI).
A public hearing on this bill was held on June 9 but it has not yet made it out of committe.
If this bill passes, every child offender that has been given life or life without parole in the country would come up for parole after serving 15 years and then subsequently every 3 years after that.
The sentencing of juveniles to life sentences if problematic. They are not yet adults yet they have been sentenced to spending the rest of their lives in jail. It will be interesting to see how the public debate comes out. This bill seems to balance the interest in punishment as well as the chance to become a productive citizen. A 15 year minimum sentence is a long sentence for someone not yet an adult.
Bad Economy does not necessarily mean more crime
August 03, 2009
National statistics and testimony from police leaders reveal that the recent downturn in the economy has not led to a rise in crime across the country. The Florida crime rate or the Jacksonville criminal rate has not been recently published, but we will keep an eye out for it. See the attached interview done with CNN here:
http://amfix.blogs.cnn.com/2009/08/03/crime-rates-down-despite-bad-economy/
When Officer Safety Leads to Illegal Searches
August 03, 2009
The Fourth District Court of Appeal this week in NAVAMUEL v. FLORIDA highlights how searches based on officer safety can be abused, and that searches, consent to search, and the fruit of those searches can be suppressed resulting in charges being dropped against clients. Navamuel was facing charges of possession of a firearm or electric weapon by a convicted felon, possession of cannabis with intent to deliver/sell, and possession of drug paraphernalia. In this case, DEA agents, based on information from an informant, drove to Navamuel's house to investigate the informant's allegations of marijuana cultivation and sales.
Two agents approached Navamuel in the driveway near his car and told him that they "were going to conduct a pat down for their safety." The court properly concluded that there was no reasonable suspicion to believe that the Navamuel was armed and dangerous, nor presented any danger to the officers. Because of that, the pat down search of Navamuel was illegal. Any evidence obtained after the pat down, even if done with Navameul's consent was tainted and had to be thrown out.
The United State Supreme Court in the famous case of Wong Sun v. United States states that all physical evidence derived from an illegal stop and frisk must be excluded as "fruit of the poisonous tree." Wong Sun v. United States, 371 U.S. 471, 488 (1963). Even if a court grants a search warrant after the initial interaction between the defendant and the police, the evidence is suppressed because the warrant was tainted by the prior illegal search of the house. See Grant v. State (Fla. 2d DCA 2008).
We have had several cases we very incriminating evidence is found against a client, however the evidence is thrown out and charges are dropped after we investigate both the facts and provide supportive case law to prosecutors. Although even one agrees that police officer's must be protected, officer safety pat downs must be done only upon a reasonable suspicion that the defendant is armed and dangerous. If they are not, the evidence gained against the client must be suppressed, which often leads to charges being dropped.
If you are facing charges based upon evidence found by the police pursuant to a search, whether from a search warrant, traffic stop, or even consensual search, be sure to consult a firm with a Board Certified Criminal Trial Attorney prior to entering a plea. The money spent on a private defense lawyer can be worth it if charges are dismissed or reduced.
