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“OBVIOUS” PRESERVATION OF ERROR ISSUE
August 31, 2009
Topic: Criminal
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.
