Defender Spring 2019

P OHI NYTATRTECSOOCROTN&USTPA
JUNE 20-22, 2019

TO REGISTER,
SEE PAGE 5 OR
GO TO WWW.FACDL.ORG

PHOTO © HYATT HOTELS

2 • FLORIDA DEFENDER | Winter 2018

FLORIDA ASSOCIATION OF From the President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
CRIMINAL DEFENSE LAWYERS
RICHARD GREENBERG
Post Office Box 1528
Tallahassee, Florida 32302 Editor’s Column . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

850 / 385-5080 MITCH STONE
Fax: 850 / 385-6715
E-mail: [email protected] Executive Director’s Report: Becky’s Bulletin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Web page: www.facdl.org
BECKY BARLOW
EDITOR & PUBLISHER
Mitch Stone FACDL’S 32ND ANNUAL MEETING
Becky Barlow
£Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
EXECUTIVE COMMITTEE £Sponsorship Opportunities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

President – Richard Greenberg FACDL NEWS
President Elect – Hal Schuhmacher
Vice President – Andrew B. Metcalf £FACDL Calendar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
£Defender Publishing Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Treasurer – Mitch Stone £New Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Secretary – Jude Faccidomo £Active Affiliate Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Immediate Past President – Andrew B. Metcalf £Life Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

DIRECTORS AT LARGE FEATURES

Huda Ajlani Jason Blank Marsy’s Law: Its Impact on the Criminal Defense Practitioner . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Tania Alavi Luke Newman DENIS DEVLAMING

Scott Berry Sabrina Puglisi Pinellas County PD’s Office Launches Trauma Informed Diversion Programs . . . . . . . . . . 12

Ernie Chang James T. Skuthan BOB DILLINGER

Bob Dillinger Varinia Van Ness Don’t Make a Federal Case Out of It: An Analysis of the First Step Act . . . . . . . . . . . . . . . . . 17

Robert B. Fisher Barry Wax LISA CALL

CHAPTER REPRESENTATIVES The Problem of Unpreserved Evidence-Sufficiency Issues in
Direct Criminal Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
James Amarosa Sam Masters
Lisa Anderson Matthew Meyers RICHARD SANDERS
Marcos Beaton
John Beroset Jose Nuñez An Overhaul, Not a Tune-Up: Florida’s Criminal Justice System Is in Need
Amanda Sampaio Bova David Oberliesen of Top-to-Bottom Repairs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Bjorn Brunvand Andrew Pozzuto
Susan Cohen ADAM TEBRUGGE
Clementine L. Conde Jason Reid
Spencer Cordell Wayne Richter The World’s Vices Versus a Lawyer’s Ethics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
AnneMarie Rizzo
Ron Ecker Loriellen Robertson GEORGE E. TRAGOS AND J.D. PATEL
Randall Grantham Richard Ruhl
Leonard Sands Death Is Different: Updates on Cases, Law, Rules & So Forth . . . . . . . . . . . . . . . . . . . . . . . . 38
Robert Gray
Robert Harrison Ian Seitel PETER N. MILLS
Catherine Henry Larry Shearer
Terry Shoemaker The Potentially Fatal Flaws in the Implementation of Florida’s Firearm Laws . . . . . . . . . . . 41
Ben Hutson D. Gray Thomas
Tom Kennedy Cyrus Toufanian G E O F F R E Y P. G O LU B
Michael Kessler J. Samathan Vacciana
Travis Koon Charles Vaughn Administrative Searches Pursuant to Fla. Stat. 812.055 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Ron Kozlowski Margaret K. Wagner
Jason Kreiss Matt Willard ARTHUR M. MIKSIS
Betty Llorente Benjamin Wurtzel
Lee Lockett Josh Zelman From the Pits: Are Trials Truly a Search for Truth? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

EXECUTIVE DIRECTOR DENIS M. deVLAMING
Becky Barlow
F Words: The Friendly Felony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
QQQ
CALEB KENYON
The Florida Defender is published quarterly
by the Florida Association of DUI Notes: Tools of the Trade – What’s In Your Toolbox? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Criminal Defense Lawyers.
LEE LOCKETT
The material contained herein is solely
for informational purposes. Opinions expressed From Across the Courtroom: A Prosecutor’s View of How to Maintain
a Professional Adversarial Relationship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
herein may not necessarily reflect the views
and/or policies of FACDL. TAYLOR MCQUAIDE

Editorial matter, change in address, and Handling Florida Petty Offenses and Misdemeanors on Federal Land . . . . . . . . . . . . . . . . 54
correspondence regarding advertising should be
mailed to P.O. Box 1528, Tallahassee, Florida 32302, SEAN M. WAGNER

or emailed to [email protected]. RESOURCES
Copyright © 2019. Florida Association of
Criminal Defense Lawyers. All Rights Reserved. FACDL Membership Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

Spring 2019 | FLORIDA DEFENDER •  3

FROM THE PRESIDENT

THE GOOD, THE BAD
AND THE UGLY (?)

by problems and identify solutions that against the unknown “rights” of
will move Florida’s criminal justice victims, and the financial burden on
Richard system in a more positive direction.” the criminal justice system will be
Greenberg I know I speak for the board of extreme. In places like Tallahassee
FACDL and our members when I and Tampa we are already seeing the
THE GOOD: Kudos to Florida Bar say “right on, Michelle! We’re with loss of transparency as police agencies
President and FACDL member you 100%!” refuse to reveal the names of persons
Michelle Suskauer for organizing and killed or harmed in events where the
putting on an outstanding Criminal THE BAD: When you were young accused is named. Hopefully, Florida’s
Justice Summit this past October in your mother would say, “Don’t (fill Marsy’s Law will have the same fate as
Tampa. Michelle brought together in the blank) or you’ll hurt someone/ similar legislation and constitutional
a diverse group of elected state break your neck/be sorry.” Later, amendments passed in other states:
attorneys, elected public defenders, when she was putting ice on your it will be repealed.
private defense counsel, policy- bruises/applying the Band-Aids/
makers, legislators, educators, and taking you to the emergency room, THE UGLY (?): We all know
judges to discuss the state of Florida’s she would say, “I told you so!” Now, that elections have consequences.
criminal justice system. Many of after so many remained silent while Our new governor has, so far,
FACDL’s members were involved a $20 million campaign of lies and pleasantly surprised many with
as steering committee members, distortions persuaded just over 60% his pro-environmental initiatives
presenters, and participants. of Florida voters to approve Marsy’s and other positions. One area that
Law, we can say, “I told you so!” concerns me, however, is his apparent
As Michelle noted in her approach to judicial appointments.
remarks at the summit and in her On January 7, 2019, the Florida In his inaugural address, Governor
President’s column in the January/ Senate Criminal Justice Committee DeSantis said “judicial activism ends,
February 2019 Florida Bar Journal, hosted a panel discussion regarding right here and right now. I‘ll only
the summit was just the opening the potential impact of Marsy’s Law appoint judges who understand the
act of a goal to bring “stakeholders on the criminal justice system. Several proper role of the courts is to apply
together in order to further define commentators pointed out what we the law and Constitution as written,
in FACDL already know: the amend- not to legislate from the bench. The
ment is vague, implementation of the Constitution, not the judiciary, is
amendment will pit the established
constitutional rights of defendants SEE PAGE 7

After so many remained silent while a $20 million campaign of lies and distortions

 persuaded over 60% of Florida voters to approve Marsy’s law, we can say,
“I TOLD YOU SO!”

4 • FLORIDA DEFENDER | Spring 2019

PHOTO © HYATT HOTELS

JUNE 20-22, 2019

REGISTRATION HYATT
COCONUT
REGISTRATIONS ONLINE/MAIL/FAX MUST BE RECEIVED NO LATER THAN JUNE 3, 2019. Registrations available online at POINT RESORT
www.facdl.org / by mail at FACDL, P.O. Box 1528,Tallahassee, FL 32302  / by fax at 850-385-6715. No telephone registrations, please. & SPA

SEMINAR AND SOCIAL EVENTS Earlybird After 4 / 1 / 19 5001 Coconut Rd,
Bonita Springs, FL 34134
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SOCIAL EVENTS ONLY No earlybird rates available quantity Hal brings the
best of the Keys
l Non-registered FACDL Members and guests (includes Saturday night banquet) . . . . . . . $226 per person   to Coconut Point.
Music, a lazy
l Spouse / Guest Banquet Only . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $101 per person river, and the
challenge of a
l Saturday Night Kids’ Party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $65 per child green surrounded
by water. What
CHILD 1 NAME AGE CHILD 2 NAME AGE else does an
over‑worked
CHILD 3 NAME AGE CHILD 4 NAME AGE criminal defense
attorney need?
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Course materials will be provided in downloadable format, both for those registering and for those ordering materials.

Refund Policy: Tuition refund less a $35 administrative fee will be made for cancellations received in writing / email to
[email protected] by May 3, 2019. No refund will be made after that time.

Registration fee includes: Seminar sessions and reference materials, welcome reception, Friday social/entertainment,
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To register, complete the following form and mail with check or money order, OR you may fax your registration with
completed credit card information and signature.

NAME

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FOR THOSE UNABLE TO ATTEND PRESENTATION:
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Spring 2019 | FLORIDA DEFENDER •  5

THE EDITOR’S COLUMN

TRANSITIONS IN LEADERSHIP

Learning the Ropes by Serving

by in the world of criminal law in the by Taylor McQuaide, an assistant
last few months and this issue features state attorney from the 8th Judicial
Mitch articles about some of the more Circuit. Hopefully, with this new
Stone important aspects of those events. column we can recruit prosecutors to
To start, President Richard Greenberg provide their viewpoint and analysis
This is my first and second to last covers The Florida Bar’s Criminal for future editions.
issue as Editor. As per the bylaws Justice Summit in his column. That
upon Nicole Menz winning her was a first-ever event spearheaded by I have to admit that the response
election, Immediate Past President Florida Bar President and FACDL to the request for articles was
Andy Metcalf officially stepped back member, Michelle Suskauer. Denis overwhelming. So much so that
into the Vice President position to deVlaming provides insight into what more articles were provided than we
finish out Nicole’s term. Although Marsy’s Law will mean to the criminal could fit into this issue. As a result,
editing The Florida Defender is the justice system. Lisa Call explains The I have a head start on the next issue.
Vice President’s job and I am still First Step Act in her new column, So if you wrote an article that is not
the Treasurer, Andy was gracious Don’t Make a Federal Case out of It. in this edition expect to see it in the
enough to allow me the opportu- Richard Sanders tackles the problem Summer. Again to all those who
nity to serve in this capacity for the of unpreserved evidence on direct made this easy for me — Thank you,
Spring and Summer editions. appeals. Adam Tebrugge recom- Thank you, Thank you!
mends an overhaul of the criminal
I got started by requesting justice system. George Tragos and JD I also want to comment on what
articles and I have to thank everyone Patel provide their insight on ethics. I have learned since I was elected to
who answered the call. FACDL Bob Dillinger tells us about unique office in 2017. As all Secretaries my
Executive Director, Becky Barlow trauma initiatives. Authur Miksis first job was taking the minutes at
blasted out the request in an email breaks down administrative searches. the board meeting the morning after
and many of you responded with Sean Wagner explains what happens the election and after a relatively
a variety of well written articles to those accused of minor offenses late night of celebrating. It wasn’t
tackling legal issues and reporting on Federal lands, and Geoffrey Golub easy but everyone at the Executive
on current events in criminal law. explains the flaws in firearm laws. Committee table offered words of
The result is a Spring issue packed advice since they had all served in
full of important, relevant and You will also find the usual that capacity. Then for that year as
entertaining information. I applaud columns: From the Pits (Denis Secretary I also served on a variety
everyone who delivered for us. deVlaming), Death is Different of committees including Budget
(Pete Mills) and DUI Notes (Lee and Investment which prepared me
As you know, a lot has happened Lockett). Additionally, F Words is for the office of Treasurer this year.
back with Caleb Kenyon as guest
columnist. We have also added a Upon installation as Treasurer
new column, From Across the Court- in 2018, I traveled to Tallahassee
room featuring an article authored to meet with Becky and our invest-
ment advisor to go over the books,
the accounting and our investment

6 • FLORIDA DEFENDER | Spring 2019

accounts. I learned a lot about leadership skills to ensure for an Your Association
FACDL’s financial picture by doing effective transition from member Working for You!
that. Treasurer approves payment of to President. This also allows those
expenses and sees what it costs to who served before to be there to FACDL
run the organization on a regular assist and serve as Andy is doing STRIKEFORCE
basis, important information to say now. Each position provides knowl-
the least. edge and understanding of what it Zealous advocacy of unpop-
takes to run this organization before ular clients or causes can
Now, although not officially being installed as President. result in personal attacks on the
Vice President, serving as Editor criminal defense lawyer. When
has provided me with an under- Of course this transition is that happens, FACDL is there
standing about what it takes guided by the consistency of having to help. Whether as counsel of
to produce this magazine. This an organized, knowledgeable and record or amicus, the FACDL
magazine is one of the more dedicated executive director. Strike Force will defend you
visible benefits of membership. It Working with Becky has made me against undeserved charges of
is our voice and allows us to share appreciate the importance of her misconduct in any forum and at
information, publicize important role. There is no question that when every level.
messages and generate income FACDL was created and the bylaws
from advertisers. As for next year, drafted, the founders really thought Call, fax or email the chair
I am already looking ahead to line this through. I encourage anyone of the FACDL Strike Force:
up speakers since as President Elect who has interest in leadership to
I will have to prepare the agenda get involved now. Write articles, DONNIE MURRELL
for the 2020 Annual Meeting. attend meetings, and participate
in committee work and know that Telephone:
From those who have preceded if you are fortunate enough to win 561/686-2700
me to those who will follow, this an election there are a lot of people Fax: 561/686-4567
process of advancement promotes who will be there to help you. Q
knowledge, understanding and Email:
[email protected]
MITCH STONE is the owner of Mitchell A. Stone, P.A., a Jacksonville based law firm
specializing in State and Federal Criminal Defense. He currently serves as Treasurer We will respond.
of FACDL. He will be President Elect in June 2019 and President in 2020. He You are not alone.
received his BA from the University of Vermont (1985) and his JD from The Univer-
sity of Florida (1988). He is Florida Bar Board Certified in Criminal Trial Law since Spring 2019 | FLORIDA DEFENDER •  7
1999. A former Assistant State Attorney, he has chaired and served on the faculty
of a variety of criminal defense related seminars. Contact him at 904/396-3335 or
[email protected]. Website: www.jacksonvilledefense.com.

PRESIDENT • from page 4

supreme.” [Someone needs to tell the governor that the only time judges
“legislate from the bench” is when they issue a decision you don’t like.]

The idea that the judicial branch should be almost a rubber stamp for
the legislative and executive branches is troubling. Landmark cases like Brown
v. Board of Education happened when judges exercised their constitutional
mandate to be a check on the other branches of government. As Stephen
Colbert recently said, “Sometimes you need to be spanked by a co-equal
branch of government.” Time will tell if our new Supreme Court will do a
little spanking when appropriate.

One thing all FACDL members can be sure of is that in good times, bad
times, or ugly times, FACDL will be here for you. We have the best magazine,
the best seminars, and the best people. Keep up the good fight! Q

EXECUTIVE DIRECTOR’S REPORT

Becky’s Bulletin

CREATING A
SUMMER VACATION

by and economic predictions also made to attrition rates, minimum
dictate location. Florida is food & beverage purchases, WIFI
Becky so large and diverse, the “in fees, AV fees, service fees and
Barlow season” timing for northern required advance deposits.
Florida resorts is different from
Have you ever considered southern Florida resorts. Lastly, Summer Vacation?
attending the FACDL annual the incoming president provides Yes, FACDL puts forth a lot of
meeting as your summer vacation? important input, knowing that effort to make the annual meeting a
Why not? When seeking out a venue they would like their family and summer vacation for you and your
for the FACDL annual meeting, friends to be in attendance. family. An annual meeting as a
many items are on our checklist to summer vacation allows you to mix
make sure that as many members as THE AMENITIES education with the opportunity to
possible can attend and that it is an FACDL traditions and expecta- hang out with family and FACDL
event worthy of being considered a friends. For example, you may
summer vacation. tions factor in greatly for the amenities finally get the chance to meet the
sought from a resort. FACDL must member you have been emailing
THE DATE not only have WIFI access, but there about a troublesome case issue;
This takes a lot of advanced must also be enough ballroom space you may meet the member whose
to hold the seminar and banquet. For article you used to win a motion
planning. Florida resorts contract the members that are lucky enough hearing; or your family may get
group events years in advance. to bring their children, we seek out to see the family of a FACDL
FACDL tries to get annual meetings information on kids’ clubs and other friend you haven’t seen since the
contracted at least three years prior family friendly resort activities. The last annual meeting. Make your
to the event. Coming up with a date availability of a golf course, tennis summer vacation plans now for
is controlled by FACDL Bylaws and courts, deep sea fishing, gun range, Hyatt Coconut Point Resort &
the resort’s availability. We avoid beach quality, and pool size are also Spa in Bonita Springs, June 20-22,
conflicting with the Florida Bar, considered. Knowing every attendee 2019 and JW Marriott Marco
the Public Defenders Association, must eat, we also consider how many Island, June 11-13, 2020. Q
NACDL, holidays, and end of the restaurants and grocery stores are
school term (if possible). available on and off the resort.

THE LOCATION BANG FOR THE BUCK
Florida has many great resorts. Attending an annual meeting at

Consideration is given to state-wide a resort nice enough to qualify as a
access, airport vicinity and diversity summer vacation must also be afford-
from prior annual meetings. Pricing able. Not only are room rates consid-
ered, but also parking fees, resort fees,
and restaurant menu pricing. On the
association side, close attention is

8 • FLORIDA DEFENDER | Spring 2019

MARSY’S protected from the accused” but does not
LAW go on to define reasonable protection.
The law also provides victims the “right
Its Impact on the to be free from intimidation, harass-
Criminal Defense ment and abuse” but does not define
those terms.
Practitioner
The constitutional amendment
by followed with similar, but not identical, provides alleged victims with a list of
laws. “rights.” In providing those rights,
Denis M. the amendment states, “A victim shall
deVlaming Since the implementation of the have the following specific rights upon
various versions of “Marsy’s Law,” there request.” The wording of that statement
Marsy’s Law is now a state Consti- have been some issues that have arisen. appears to require the victim to make a
tutional Amendment in Florida For example, Montana’s state Supreme request for these rights before they are
found in Article I (Declaration of Court struck down the law as unconsti- provided. This is significant in that the
Rights) Section 16 (Rights of accused tutional stating that the challenges to the rights themselves are not self-executing
and of victims). It became effective on existing law should have been presented but rather need to be requested before
January 8, 2019. As a way of introduc- separately rather than as one initiative. they are provided. They include the
tion, “Marsy’s Law” was named for In North Dakota, the Bismarck Sheriff ’s following:
Marsy Nicholas, a California college office stated that only 11 victims invoked £ Reasonable, accurate and timely notice
student who was murdered in 1983 their rights under the new law. In South
by her ex-boyfriend. A few days after Dakota an attempt to repeal the law and to be present at all public proceed-
her death, her mother and brother which was passed in 2016 was defeated ings involving the criminal conduct,
walked into a grocery store where they when the law was amended in 2018 including but not limited to: trial,
were confronted by Marsy’s accused requiring the victims to “opt in” to many plea, sentencing, or adjudication (even
murderer. California was the first state of the rights and allowing law enforce- if the victim is going to be a witness
to enact the “rights of victims” under ment to share information with the at the proceeding) as well as notice of
Marsy’s Law and, as of the writing of this public. In Kentucky, a move was made any release or escape of the defendant
article, the states of Georgia, Hawaii, in 2018 to repeal the passing of the law or proceeding during which a right of
Montana, Nevada, Maine, Kentucky, because the wording was too vague. In the victim is implicated.
North Carolina, Ohio, Illinois, North certain areas, the wording in Florida’s £ The right to be heard involving pretrial
Dakota, South Dakota and Florida all “Marsy’s Law” is also vague. The law calls release or any form of legal restraint,
for the right of victims to be “treated with at plea, sentencing, adjudication, or
fairness and respect for their dignity.” It parole.
also calls for victims to be “reasonably £ The right to confer with the prose-
cuting attorney concerning any plea
agreements, participation in any
pretrial diversion programs, release,
restitution, sentencing, or any other
disposition of the case (Note: The
law provided that the rights of the
victim, as provided in the above rights
that apply to any first appearance
proceeding are satisfied by a reason-
able attempt by the appropriate agency
to notify the victim and convey the
victim’s views to the court).
£ The right to provide information
regarding the impact of the offender’s
conduct on the victim and the victim’s
family to the individual responsible for
conducting any presentence investiga-
tion or compiling any presentence
investigation report, and to have
any such information considered in

Spring 2019 | FLORIDA DEFENDER •  9

any sentencing recommendations Where Marsy’s Law
submitted to the court. Has Been Adopted
£ The right to receive a copy of any
presentence report and any other no more than 30 days after the date of to all crime victims in the form of
report or record relevant to the exercise the calendar call unless the trial court a card or by other means intended
of a victim’s right, except for such enters an order with specific findings to effectively advise the victim of
portions made confidential or exempt of fact justifying a trial date of more their rights under this law. (Note: It
by law. than 60 days after the calendar call. does not appear as if lawyers will be
£ The right to be informed of the £ All state level appeals and collateral appointed to victims for the advise-
conviction, sentence, adjudication, attacks on any judgment must be ment or enforcement of their rights.)
place and time of incarceration, or complete within 2 years from the £ The victim, the retained attorney of
other disposition of the convicted date of appeal in noncapital cases and the victim, a lawful representative of
offender, any scheduled release date of within 5 years from the date of appeal the victim, or the office of the state
the offender, and the release of or the in capital cases, unless a court enters an attorney upon request of the victim,
escape of the offender from custody. order with specific findings as to why may assert and seek enforcement of the
£ The right to be informed of all post- the court was unable to comply with rights enumerated in this section and
conviction processes and procedures, this subparagraph and the circum- any other right afforded to a victim
to participate in such procedures and stances causing the delay. by law in any trial or appellate court,
processes, to provide information to £ Each year, the chief judge of any or before any other authority with
the release authority to be considered district court of appeal or the chief jurisdiction over the case, as a matter
before any release decision is made, judge of the Supreme Court shall of right.
and to be notified of any release report on a case-by-case basis to the £ The court or other authority with
decision regarding the offender. The speaker of the House of Representa- jurisdiction shall act promptly on any
parole or early release authority shall tives and the president of the Senate all enforcement request made by a victim,
extend the right to be heard any person cases where the court entered an order affording a remedy by due course of
harmed by the offender. regarding inability to comply with this law for the violation of any right (the
£ The right to be informed of clemency subparagraph. remedy is not specified). The reasons
and expungement procedures, to £ Victims have the right to be informed for any decision regarding the disposi-
provide information to the governor, of these rights and to be informed tion of a victim’s right shall be clearly
the court, any clemency board, and that victims can seek the advice of an stated on the record.
other authority in these procedures, attorney with respect to their rights. £ The granting of rights enumerated
and to have that information consid- This information shall be made avail- in this law to victims may not be
ered before a clemency or expunge- able to the general public and provided construed to deny or impair any
ment decision is made to be notified of
such decision in advance of any release
of the offender.
£ The right to the prompt return of
the victim’s property when no longer
needed as evidence in the case.
£ The right to full and timely restitution
in every case and for each convicted
offender for all losses suffered, both
directly and indirectly, by the victim
as a result of the criminal conduct.
£ The right to proceedings free from
unreasonable delay, and to a prompt
and final conclusion of the case and
any related post judgment proceedings.
£ The state attorney may file a good-
faith demand for a speedy trial and
the trial court shall hold a calendar
call, with notice, within 15 days of the
filing demand, to schedule a trial to
commence on a date at least 5 days but

10 • FLORIDA DEFENDER | Spring 2019

other rights possessed by victims. wrong” cases. You know, the one-on-one, tion and impeachment.
The provisions of this section shall
apply throughout criminal and he said/she said prosecutions where the Should the state decide to file a
juvenile justice processes, and are
self-executing, and do not require police or the prosecutor decides who is demand for speedy trial on behalf of the
implementing legislation. The law
may not be construed to create any the “victim” and who is the “defendant.” victim, counsel should have with them a
cause of action for damages against the
state or a political subdivision of the Often times, the line between the two is “boilerplate” order which include areas
state, or any officer, employee, or agent
of the state or its political subdivisions. razor thin. The one who gets the label that the court may check that include:

The law defines a “victim” as a person of “victim” holds the cards to be able £ Discovery not complete
who suffers direct or threatened physical,
psychological, or financial harm as a to have a meaningful input on whether £ Witness issues
result of the commission or attempted
commission of a crime or delinquent act a trial is held, when the trial is going £ Trial scheduling issues
or against whom the crime or delinquent
act is committed. The term “victim” to be held, or whether a negotiation is £ Ongoing negotiations where setting a
includes the victim’s lawful representa-
tive, the parent or guardian of a minor, defeated. Oftentimes reason is overtaken trial and issuing subpoenas would be
or the next of kin of a homicide victim
(except upon a showing that the interest by emotion and “Marsy’s Law” will a waste of the parties’ and the court’s
of such individual would be an actual or
potential conflict with the interests of the provide an avenue for injustice. time and resources
victim). The law goes on to make it clear
that the term “victim” does not include In dealing with the enactment of
the accused.
“Marsy’s Law” the criminal defense Defense counsel should be prepared
With the added rights given to
named “victims” there are bound to be practitioner should keep in mind that the to contact the Department of Correc-
abuses. I can think of three offhand.
In cases involving a divorce, a spouse alleged victim must “opt in” to participa- tions officer who may be preparing a
may use the criminal justice system
to obtain an upper hand against their tion in the law. As such, presentencing report.
spouse whom they are divorcing or are
in the midst of child custody proceed- if one of the rights is They should be advised
ings. The additional rights given to them
under “Marsy’s Law” will give them an being implemented by not to share any privi-
unfair advantage by using the criminal
justice system in their divorce case. We a third party, counsel “  “ Marsy’s Law leged or confidential
may even see divorce lawyers becoming should inquire whether is a reality information with the
knowledgeable in the rights provided or not the alleged victim alleged victim about
under the law so that they can give has indeed “opted in” the client. A request
advice on how to use it to their client’s
advantage. and to prove it (where, in Florida unless should be made for a
when, and how). copy of the report that
I can also see cases where a business
partner embezzles from a company The defense should and until its is intended to be given
and “Marsy’s Law” is used by the also be prepared to ask to the victim before it
other partner to gain an advantage in
extracting an unfair restitution request for cross-examination unlikely repeal. is sent for your input.
or financial business settlement with of the alleged victim This request should be
their superior intervention in cases now.
Perhaps the greatest abuse will come should he or she decide It will have a made in writing and
from what I call the “he (or she) done me to address the court a standard letter can
tremendous
at any in court session financial impact be prepared for that
hearing. The Sixth purpose.
Amendment to the
If the victim’s “safety

United States Consti- ”on the state”. and welfare” is being
tution and Article 1 considered by the court
Section 16 of the in setting bail, defense

Florida Constitution counsel should consider

provide for the right of arguing for a “recip-

confrontation. Although it is true that rocal” no contact order so that the client

in the 1949 Supreme Court decision is not entrapped in a violation.

of Williams v. New York, 337 U.S. 241 The defense should also argue against

(1949) the court ruled that the right of any “indirect” financial or property losses

confrontation did not apply to sentenc- of the victim “as a result of the criminal

ings (probation reports and out of court conduct.” Some victims will attempt to

information are not subject to cross get a windfall from the case. Because

examination) the subsequent ruling in the law permits them to have access to

Crawford v. Washington, 541 U.S. 36 the prosecutor in setting restitution, a

(2004) held that testimonial evidence is detailed list of all losses being requested

subject to the confrontation clause and should be provided and indirect expenses

thus cross examination. So take advan- questioned.

tage of questioning the alleged victim Lastly, under the holding in Brady

and learn additional discovery informa- v. Maryland, 373 U.S. 83 (1963) the

Spring 2019 | FLORIDA DEFENDER •  11

defense is entitled to any material Pinellas County PD’s Office
impeachment, exculpatory, or exoner- Launches Trauma Informed
ating information or anything that Diversion Programs
would lessen the punishment of the
defendant held by the state. If the by tions are then forwarded to the refer-
victim has elected to use and consult ring Public Defender and Disposition
with a “representative” as defined in Bob Specialist to facilitate placement in the
the law, for advice and enforcement of Dillinger appropriate program. Diversion thera-
their rights, that may provide a way for pists also provide individual therapy
Brady material disclosure from the state The Pinellas County Public Defender’s on an outpatient basis to those clients
(by admission or deposition). Our state Office has recognized the significant no longer in custody. The majority of
Supreme Court in Johnson v. Butter- impact trauma has had on individuals outpatient clients are being housed
worth, 713 So.2d 985 (Fla. 1998) has in the forensic locally in transitional sober living facili-
held that Brady material must be turned setting and ties. Transportation is provided to and
over even when found in confidential seeks to help from outpatient sessions.
information, work product, or exempt clients through
public records. Defense counsel should ongoing case RECOVERY PROJECT
include in their Brady motion “all state- management The Recovery Project began in 2008
ments made by the alleged victim to to assist with clothing, food, healthcare
the prosecutor, victim advocate, police needs and housing, in addition to three for homeless individuals with an alcohol
or any other person or entity that he or unique trauma informed programs: use disorder. Clients are sent for detox,
she has talked to concerning the case” to stabilization or medication manage-
obtain required impeachment, exculpa- JAIL DIVERSION PROGRAM ment, transitional housing with group
tory or exonerating information. The Jail Diversion Program has and individual counseling, and receive
a 12 Step referral for support.
Marsy’s Law is a reality in Florida been diverting thousands of mentally
unless and until its unlikely repeal. It will ill clients from the judicial system to MOBILE
have a tremendous financial impact on reduce recidivism since 2004 through MEDICAL
the state due to the massive notification crisis stabilization, medication manage- UNIT
requirements it provides. It will also ment, case management and program
result in a delay of proceedings when placement. The Public Defender’s Office The Public
alleged victims as defined in the law refers clients to therapists for evaluation D e f e n d e r ’s
are not served with proper notice (or for mental health and substance abuse Office also
ask for a continuance for scheduling disorders. Treatment recommenda- provides the Mobile Medical Unit, which
reasons). Prosecutors will also have to is staffed with licensed medical profes-
deal with trying to explain to victims sionals to assist with homeless and their
their inability to prove a case when the families with medical interventions. Q
alleged victim is insistent on proceeding
to trial or arguing against a settlement BOB DILLINGER is Public Defender of the Sixth Judicial Circuit in Pinellas County.
disposition. Time will tell whether the
public was provided with an accurate
description of how “Marsy’s Law” will
work in practice. They may have second
thoughts when it impacts their pocket-
book or their own lives if they find
themselves in the law office of a criminal
defense practitioner. Q

DENIS M. de VLAMING, a Board Certified
criminal defense attorney in Clearwater,
has practiced criminal law exclusively since
1972. He has been on FACDL’s Board of
Directors since its inception in 1988 and
is a Charter Member of the organization.
He is a past president of FACDL.

12 • FLORIDA DEFENDER | Spring 2019

Spring 2019 | FLORIDA DEFENDER •  13

THE BOOSTER SHOT

FACDL CRIMINAL LAW CERTIFICATION REVIEW
& BOARD CERTIFICATION TIPS SEMINAR
FOR STATE AND FEDERAL LAW 2019

APRIL 4-5, 2019

LAKE MARY MARRIOTT ORLANDO
1501 International Pkwy, Lake Mary, FL 32746 Hotel Reservations: 800-380-7724

Room Rate: $139++ w/free parking. Reserve rooms by March 13, 2019

THE BOOSTER SHOT REGISTRATION

REGISTER ONLINE AT WWW.FACDL.ORG OR MAIL THIS COMPLETED FORM WITH FULL PAYMENT
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CHECK YOUR PURCHASE OPTION: FACDL MEMBER NON-MEMBER GOVERMENT EMPLOYEE
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FOR THE NEW(ISH) LAWYER,” ARE AVAILABLE ONLINE AT FACDL.ORG.

 FACDL Members: Check here if you do not want $10 of your registration fee to be contributed to the FACDL Political Committee

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IT IS ANTICIPATED THE FLORIDA BAR WILL APPROVE THIS SEMINAR FOR APPROXIMATELY 14 HOURS OF CLE CREDIT.
Purchased session course materials will be available via event page approximately one week prior to seminar.
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REGISTRATIONS ONLINE/MAIL MUST BE RECEIVED NO LATER THAN MARCH 25, 2019. Registrations available online at
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14 • FLORIDA DEFENDER | Spring 2019

THE BOOSTER SHOT

FACDL CRIMINAL LAW CERTIFICATION REVIEW
& BOARD CERTIFICATION TIPS SEMINAR
FOR STATE AND FEDERAL LAW 2019

APRIL 4-5, 2019

LAKE MARY MARRIOTT ORLANDO
1501 International Pkwy, Lake Mary, FL 32746 Hotel Reservations: 800-380-7724

Room Rate: $139++ w/free parking. Reserve rooms by March 13, 2019

T H URS DAY, APRIL 4 , 2 0 1 9

7:30 - 8:30 a.m. Continental Breakfast

8:30- 8:35 a.m. Opening Remarks • Sabrina Puglisi

8:35 - 9:05 a.m. Testing Tips • Ilana Marcus, Chair Fla. Bar Crim. Law Cert. Committee

9:05 - 10:15 a.m. Florida Sentencing • Judge Richard Hersch, 11th Circuit

10:15 - 10:30 a.m. Networking Break

10:30 - 11:30 a.m. Florida Case Law Update • Denis deVlaming

11:30 a.m.- 12:20 p.m. Florida Legislative Update • Pete Mills. APD 10th Circuit

12:20 - 1:20 p.m. Lunch on Your Own

1:20 - 2:10 p.m. State Criminal Appeals • TBA

2:10 - 3:10 p.m. 4th Amendment • Judge Milton Hirsch, 11th Circuit

3:10 - 4:25 p.m. State & Federal Evidence • Judge Terry Lewis, 2nd Circuit

4:25 - 4:40 p.m. Networking Break

4:40 - 5:30 p.m. Ethics • Brian Tannebaum

FR IDAY, APRIL 5, 2 0 1 9

8:45 - 8:50 a.m. Opening Remarks • Sabrina Puglisi

8:50 - 9:50 a.m. Federal Appeals • Rosemary Cakmis, AFPD Middle District

9:50 a.m.- 10:45 a.m. 5th & 6th Amendments • Judge Jenifer Harris, 9th Circuit & Judge Patrick Harris (Ret.)

10:45 - 11:00 a.m. Networking Break

11:00 - 11:35 a.m. 5th & 6th Amdendments continued

11:35 a.m.- 12:30 p.m. Federal Procedure • Lisa Call, AFPD Middle District

12:30 - 1:30 p.m. Lunch on Your Own

1:30 - 2:30 p.m. Federal Sentencing part 1 • Jim Skuthan, AFPD Middle District

2:30 p.m.- 2:45 p.m. Networking Break

2:45 - 3:45 p.m. Federal Sentencing part 2 • Jim Skuthan, AFPD Middle District
3:45 - 4:15 p.m. Federal Sentencing Hypotheticals in Preparation for Test • Jim Skuthan, AFPD Middle District

“YOUNG LAWYER’S RECHARGE: TIPS & GUIDANCE FOR THE NEW(ISH) LAWYER,”
half-day discussion on topics relevant to young lawyers. PRICING ONLINE AT FACDL.ORG SOON.
Purchased session course materials will be available via event page approximately one week prior to seminar. FACDL
member attendees will have unlimited access online by logging in to FACDL.ORG. Purchasers of MATERIALS ONLY
will have access to materials via Dropbox approximately 10 days after the seminar.

Spring 2019 | FLORIDA DEFENDER •  15

   FACDL CALENDAR   

MAR MARCH 4, 2019
MAR
MAR CHAPTER SCHOLARSHIP CUTOFF FOR “BOOSTER SHOT”
MAR (CERTIFICATION REVIEW) 2019
APR
APR MARCH 13, 2019
APR
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MAY (CERTIFICATION REVIEW) 2019
JUN
MARCH 25, 2019

ONLINE REGISTRATION CUTOFF FOR “BOOSTER SHOT”
(CERTIFICATION REVIEW) 2019

MARCH 25, 2019

ONLINE REGISTRATION CUTOFF FOR YOUNG LAWYER’S RECHARGE

APRIL 4-5, 2019

“BOOSTER SHOT” (CERTIFICATION REVIEW) SEMINAR

Lake Mary Marriott Orlando

APRIL 5, 2019

YOUNG LAWYER’S RECHARGE

Lake Mary Marriott Orlando

APRIL 6, 2019

FACDL BOARD MEETING

Lake Mary Marriott Orlando

APRIL 15, 2019

EDITORIAL DEADLINE FOR THE SUMMER ISSUE OF THE DEFENDER

MAY 19, 2019

DISCOUNT ROOM RATE CUTOFF FOR 32ND ANNUAL MEETING

Hyatt Coconut Point Resort & Spa

JUNE 20-23, 2019

32ND ANNUAL MEETING MEETING

Hyatt Coconut Point Resort & Spa

W W W. FAC D L . O RG

16 • FLORIDA DEFENDER | Spring 2019

DON’T MAKE A
FEDERAL CASE OUT OF IT

An AnalysisoftheFirstStepAct

by Director of the Bureau of Prisons and convictions for 924(c) offenses, escape,
others, has until this summer to develop failure to register as a sex offender, sex
Lisa and release publicly the risk and needs trafficking, child pornography offenses,
Call assessment system. Each inmate in the and deportable inmates subject to an
BOP will undergo an intake assessment order of removal.
Although it may have been swept designed to classify him as having a
aside by the winter holidays or the minimum, low, medium or high risk of §851 NOTICES
government shutdown, Congress passed recidivism. The assessment will also deter- Similar to the habitual offender
one of the most significant reforms to mine the type of and amount of evidence-
federal criminal law on Dec. 21, 2018: based recidivism reduction programming notices in state court, the federal drug
The First Step Act. appropriate for the inmate. After the statute provides that if the government
Attorney General releases the risk and filed a pre-trial or pre-plea notice, it
The First Step Act changed program- needs assessment system, the BOP has would trigger an enhanced sentence.
ming in the Bureau of Prisons, changed six months to begin implementation of
the 851 prior conviction enhancements, the programming. The First Step Act has changed the
changed 924(c) stacking provisions, §851 provisions: lowering the resulting
expanded the safety valve provision, and Once the programming is in place, minimum mandatory sentence when a
made the Fair Sentencing Act of 2010 inmates who successfully complete the notice is filed and changing the defini-
retroactive. programming may receive incentives tion of what is a predicate offense. The
and rewards while in custody, including Sentencing Commission explains the
additional telephone privileges, additional changes in the enhanced penalties.
BOP PROGRAMMING time for visitation, and the opportunity
to request placement at a facility closer to The changes to the §851 definitions
The First Step Act creates new the planned release community. narrowed the definition of “serious
programming in the Bureau of Prisons drug felony” but added “serious violent
called “Evidence Based Recidivism One of the biggest incentives in the felony” as a predicate that could apply
Reduction” programming. At this point, bill is the ability to earn additional time under §851.
there is no clear indication of what will be credits. However, there is a laundry
encompassed by the programming since list of over 60 offenses that exclude an A “serious drug offense” now uses the
the Attorney General, together with the inmate from receiving the additional definition in the Armed Career Criminal
time credits, including convictions for Act (18 U.S.C. §924(e)(2)) for which
the offender served a term of imprison-
ment of more than 12 months and the

Spring 2019 | FLORIDA DEFENDER •  17

Statutory Statutory Enhanced Penalty Enhanced Penalty
Provision Penalty BEFORE FIRST STEP Act AFTER FIRST STEP Act

21 U.S.C. 10-year 20-year Mandatory Minimum 15-year Mandatory Minimum
841(b)(1)(A) Mandatory (after one prior conviction for a (after one prior conviction for a serious
Minimum drug felony or serious violent felony)
felony drug offense)
21 U.S.C. 5-year 25-year Mandatory Minimum
841(b)(1)(B) Mandatory LIFE (after two or more prior convictions
Minimum (after two or more prior convictions
21 U.S.C. for a serious drug felony or
960(b)(1) 10-year for a felony drug offense) serious violent felony)
Mandatory
21 U.S.C. Minimum 10-year Mandatory Minimum 10-year Mandatory Minimum
960(b)(2) (after one prior conviction for a (after one prior conviction
5-year for a serious drug felony or
Mandatory felony drug offense) serious violent felony)
Minimum
20-year Mandatory Minimum 15-year Mandatory Minimum
(after one prior conviction for a (after one prior conviction
for a serious drug felony or
felony drug offense) serious violent felony)

10-year Mandatory Minimum 10-year Mandatory Minimum
(after one prior conviction for a (after one prior conviction
for a serious drug felony or
felony drug offense) serious violent felony)

offender was released from any term of revised section 924(c)(1)(C) by providing the sentencing guidelines; and a prior
imprisonment within 15 years of the that the higher penalty for a “second or 2-point sentence for a “violent offense,”
commencement of the instant offense. subsequent count of conviction” under as determined under the sentencing
section 924(c) is triggered only if the guidelines The definition of a violent
A “serious violent felony” means an defendant has a prior section 924(c) offense means a crime of violence as
offense defined in 18 U.S.C §3559(c)(2) conviction that has become final. defined in 18 U.S.C. §16.
for which the offender served a term of
imprisonment of more than 12 months. SAFETY VALVE RETROACTIVITY OF
Notice that there is no time limit for the Under the prior safety valve provi- THE FAIR SENTENCING
serious violent felony conviction. ACT OF 2010
sion, a person with more than one
criminal history point was excluded Any defendant sentenced before the
924(c) STACKING PROVISIONS from relief. Often this prevented the effective date of the Fair Sentencing Act
Court from giving a lower sentence or (August 3, 2010) who did not receive
Before the Act, a second or subse- a sentence below the minimum manda- the benefit of the statutory penalty
quent count of conviction under section tory sentence for offenders with relatively changes made by that Act is eligible
924(c) triggered a higher mandatory minor but scoring prior convictions. for a sentence reduction under the
minimum penalty, as well as manda- For example, someone with two prior FIRST STEP Act. Section 2 of the Fair
tory “stacking” of these sentences for marijuana convictions or two DUI Sentencing Act increased the quantity
each count of conviction. In Deal v. offenses could have a single criminal of crack cocaine that triggered manda-
United States, 508 U.S. 129 (1993), the history point for each conviction and tory minimum penalties. Section 3 of
Supreme Court held that, even when then be excluded from safety valve. the Fair Sentencing Act eliminated the
multiple counts under section 924(c) statutory mandatory minimum sentence
were in the same indictment, the convic- The new statement is that the for simple possession of crack cocaine.
tion on the first count did not have to safety valve will apply as long as the The FIRST STEP Act authorizes the
be final before the mandatory increases defendant does not have more than defendant, the Director of the Bureau of
and stacking provisions were triggered. 4 criminal history points, excluding Prisons, the attorney for the government,
Thus, a defendant with two or more any criminal history points resulting or the court to make the motion.
counts in one indictment was subject from a 1-point offense, as determined
to a mandatory minimum of five years under the sentencing guidelines; a prior QQQ
on the first count, and 25 years on each 3-point offense, as determined under
additional count. The First Step Act

18 • FLORIDA DEFENDER | Spring 2019

SUPREME COURT UPDATE In drawing such a conclusion, then- “The altercation need not cause pain
Judge Gorsuch noted that, “Congress or injury or even be prolonged; it is the
In Rehaif v. United States, the justices gave us three elements in a particular physical contest between the criminal
granted the petition for certiorari and order. And it makes no sense to read the and the victim that is itself ‘capable of
agreed to decide whether, when the word ‘knowingly’ as so modest that it causing physical pain or injury.’ ”2
government prosecutes a noncitizen who might blush in the face of the very first
is in the United States illegally for violating element only to regain its composure The dissent, written by Justice
a federal law prohibiting him from having and reappear at the second.” He also Sotomayor, was joined by Chief Justice
guns or ammunition, the government pointed out that “the Supreme Court has Roberts and Justices Ginsburg and
must show that the defendant knew he long held that courts should presume a Kagan. The dissent argued that the
was in the country illegally, or whether mens rea requirement attaches to each of majority opinion could not be reconciled
it is enough to show that the defendant the statutory elements that criminalize with the 2010 Johnson decision because
knew he had the guns or ammunition. otherwise innocent conduct.”1 of the reality of how little force it takes
to be convicted of robbery under the
The question arose in the case of In Stokeling v United States, Jan. 15, Florida law. “A pickpocket who attempts
Hamid Mohamed Ahmed Ali Rehaif, 2019, the Court held that the Armed to pull free after the victim catches his
a citizen of the United Arab Emirates, Career Criminal Act’s elements clause arm” qualifies, she wrote. “A thief who
who came to the United States on a encompasses a robbery offense that grabs a bag from a victim’s shoulder also
student visa but was dismissed from re-quires the defendant to overcome commits Florida robbery, so long as the
school — and, as a result, was no longer the victim’s resistance. The opinion was victim instinctively holds on to the bag’s
in the country legally. Several months written by Justice Clarence Thomas, strap for a moment.” Justice Sotomayor
later, Rehaif was arrested and charged who, writing for the majority, said Mr. added that locking up such offenders for
with having ammunition in his hotel Stokeling’s robbery conviction counted long periods does not advance public
room; he was convicted and sentenced as a violent felony for the federal law. safety. “Under Florida law, ‘robbers’ can
to 18 months in prison. The U.S. Court The Florida law required proof the be glorified pickpockets, shoplifters and
of Appeals for the 11th Circuit upheld victim resisted, he wrote, and that purs e snatchers,” she wrote. Q
Rehaif ’s sentence, rejecting his argument was enough. “The force necessary to
that he could only be convicted if he overcome a victim’s physical resistance 1 Rehaif will likely be argued in April, with a
knew that he was in the country illegally. is inherently ‘violent,’” Justice Thomas decision by the end of the Court’s term in June.
wrote. “This is true because robbery that Congratulations to Robert Godfrey and Rosemary
Under 18 U.S.C. §922(g), we’re all must overpower a victim’s will — even Cakmis of the Federal Defenders Office, Middle
familiar with the federal crime of being a a feeble or weak-willed victim — neces- District of Florida, for another Supreme Court case.
felon in possession of a firearm. However, sarily involves a physical confrontation
there are eight other additional classes of and struggle,” Justice Thomas wrote. 2 The quoted phrase came from a 2010
prohibited persons. The other prohibiting decision, Curtis Johnson v. United States that
factors include a person dishonorably concluded that convictions under Florida’s battery
discharged from the armed forces, a person statute did not qualify as violent felonies for the
who is “an unlawful user of or addicted to federal sentencing law.
any controlled substance,” a person subject
to a domestic violence restraining order, LISA CALL is a Past President of FACDL.
or a person convicted of a misdemeanor
crime of domestic violence. “I have no further questions of the witness.”

In United States v. Games-Perez,
667 F.3d 1136, 1142 (10th Cir.
2012), Judge Gorsch (now Justice
Gorsch) wrote a concurring opinion
which, while acknowledging that prior
precedent dictated that the mens rea
requirement does not apply to the
status element, concluded that the
statute compelled the opposite conclu-
sion. “Prior precedent reads the word
knowingly as leapfrogging over the first
§922(g) element and touching down
only at the second. This interpretation
defies linguistic sense — and not a little
grammatical gravity.”

Spring 2019 | FLORIDA DEFENDER •  19

The Problem of
Unpreserved Evidence-Sufficiency
Issues in Direct Criminal Appeals

by is discharged, when it is too late for State couldn’t have cured-the-defect if no
the State to cure any deficiencies in its crime was proven? What if the defendant
Richard proof (see State v. Stevens, 694 So. 2d is convicted of a crime that requires proof
Sanders 731 (Fla. 1997)) —, Monroe ­should be that the victim was a minor; and no
read as adopting a blanket rule that no crime would occur if the victim wasn’t a
The basic question raised here concerns sufficiency issues need to be preserved. minor; but the State did not prove the
what an appellate court should do victim’s age. How do we know whether,
when a defendant in a direct criminal THE F.B. DECISION if the issue had been raised, the State
appeal challenges the sufficiency of the The issue in F.B. concerned the value could have cured this defect (which
evidence to support a conviction by might require nothing more than asking
raising an issue that was not properly element needed to prove grand theft. the victim her birthday, a question the
preserved. The two leading Florida cases The Court held unpreserved sufficiency prosecutor simply forgot to ask)?
are F.B. v. State, 852 So. 2d 226 (Fla. issues amount to fundamental error only
2003) and Monroe v. State, 191 So. 3d if “the evidence is insufficient to show F.B. did not consider whether preser-
395 (Fla. 2016). F.B. adopted a strict that a crime was committed at all.”1 We vation is required — and the a-crime
preservation rule with a limited funda- will call this the “a-crime test”; F.B. failed test applies — even if it is clear that the
mental-error exception and refused to this test because it was proven that he State could not have cured-the-defect
address the unpreserved issue in that case committed the lesser-included crime of if the issue had been raised. Nor did
because the issue didn’t fall within that petit theft. the Court say whether this a-crime test
exception. Monroe reaffirmed F.B. but applies only if the a-crime that is proven
still reduced the conviction to one for a The Court said this a-crime test is is a lesser-included offense of the convic-
lesser-included offense because counsel’s justified because, if we require sufficiency tion challenged on appeal (as was true
failure to preserve the valid sufficiency issues to be timely raised, the State in F.B.). For example, if the defendant
issue constituted ineffective assistance can cure “[a]ny technical deficiency in is convicted of possessing cocaine but
of counsel (“IAOC”). The question proof[,] if indeed it is [curable], before the State fails to prove the possession
addressed here is whether Monroe the trial concludes.”2 We will call this element, must the appellate court refuse
renders F.B. moot because, unlike the the “cure-the-defect” logic: Preservation to address this unpreserved issue if the
F.B. rule, Monroe may a blanket rule, is required to prevent defendants from evidence proved the (uncharged?) crime
i.e., all unpreserved sufficiency issues sitting silently during trial and then of battery? Nor did F.B. consider whether
should be addressed on direct appeal raising a sufficiency issue on appeal, the unpreserved issue could be addressed
(because failing to preserve a valid suffi- when it is too late for the State to cure- as an IAOC claim.
ciency issue always amounts to IAOC). the-defect.
The article concludes that, given Rule The author believes the conclusion
3.380(c) — which allows sufficiency The F.B. Court did not discuss the in F.B. is flawed because
issues to be initially raised after the jury relationship between the a-crime test
and the cure-the-defect logic. Why is 1) The only reason to require
the State given a chance to cure-the- sufficiency issues to be preserved
defect if a-crime was proven but not if is the cure-the-defect logic, and
no crime was proven? Why should we the only possible valid reason for
assume that, if given the chance, the counsel’s failure to raise a valid

20 • FLORIDA DEFENDER | Spring 2019

sufficiency issue would be the because counsel’s failure to move for on direct appeal, at least if both elements
fear that the State could cure-the- an acquittal “during or after trial…was of the IAOC claim are “indisputable.”
defect if the issue is raised; but patently unreasonable:” While it may seem that failing to raise
2) Rule 3.380(c) allows suffi- a valid sufficiency issue (particularly
ciency issues to be initially raised Despite the [State’s] best efforts[, under Rule 3.380(c)) always constitutes
after the jury is discharged, when it] was unable to [prove the age indisputable IAOC, the Court did not
it is too late for the State to cure- element]. At the close of the expressly adopt this blanket rule. As the
the-defect; so State’s case, the trial court specifi- language in the opinion emphasized
3) there is no reason to require cally asked trial counsel whether above shows, five possible limits on a
sufficiency issues to be preserved they would move for [an] acquittal, blanket rule may be read into Monroe,
and counsel’s failure to raise any and trial counsel declined. [Also, as to both elements of an IAOC claim.
valid issue always constitutes the age issue was] vigorously
IAOC.3 disputed…during closing state- As to the deficient-performance
ments. Finally, trial counsel failed element, there are three possible limits
Although the Monroe opinion did to move for [an] acquittal [under on a blanket rule: 1) Despite the State’s best
not expressly adopt this reasoning, it Rule] 3.380(c). We can think of efforts, it didn’t prove the age element;
is hard to see how it can be read any no plausible justification for these 2) the age element was vigorously disputed
other way. decisions…. during closing; and 3) the trial court
[T]he prejudice to Monroe is specifically asked counsel whether they
QQQ most obvious [because] Monroe would move for an acquittal and counsel
[was] sentenced to mandatory declined. There are two possible limits on
THE MONROE DECISION life imprisonment[,] a sentence the prejudice element: 1) Monroe was
Convicted of capital sexual battery, that would be unconstitutional if sentenced to mandatory life imprison-
Monroe was not 18 when this event ment; and 2) that sentence would be
Monroe raised on appeal the unpreserved occurred…. unconstitutional if Monroe was not 18
issue that the State didn’t prove he was …[T]he unreasonableness of when the event occurred.
over 18 when the crime occurred. The the actions of trial counsel and the
district court held this issue was not prejudice to Monroe are indisput- None of these possible limits justifies
fundamental error under the a-crime able.6 reading Monroe as not adopting a blanket
test: Even if Monroe was only 17 at the rule. As to the first possible limit, this is
time, he committed a sexual battery As in F.B., the Monroe Court didn’t a rephrasing of the cure-the-defect logic.
crime (albeit a lesser one). The court say whether the a/any-crime test was Although the Court did not expressly
certified a question: limited to lesser-included offenses, and discuss the possible applicability of that
did not explain why the State should not logic to the IAOC claim, the Court’s
Do[es F.B.] require preservation be given a chance to cure-the-defect if it noting that the State failed to prove the
of an evidentiary deficiency where didn’t prove the defendant committed a/ age element despite its best efforts to do
the state proved only a lesser any-crime. But Monroe may have clari- so could be read as implicitly adopting
included offense and the sentence fied one point left open in F.B. and it that logic: IAOC was proven because
required for the greater offense clearly clarified a second point. there was no valid reason for counsel’s
would be unconstitutional as failure to raise the age issue because the
applied to the lesser offense?4 First, in asserting that the State was State couldn’t cure-the-defect if the issue
unable to prove the age element despite had been raised. However, although the
As to the possible unconstitutionality its best efforts, the Monroe Court may be Court specifically noted that counsel
of the sentence, see Graham v. Florida, saying that the a/any-crime test applies was deficient for failing to raise the age
530 U.S. 48 (2010). even if it is clear the State could not have issue under Rule 3.380(c), it did not
cured-the-defect if the sufficiency issue expressly consider whether the existence
The Florida Supreme Court in had been raised. But the Court did not of Rule 3.380(c) would wholly nullify
Monroe held this age issue did not say why, if preservation is required by the the cure-the-defect logic as the reason
amount to fundamental error, which cure-the-defect logic, it is still required for requiring sufficiency issues to be
occurs only if the evidence fails to prove even though it is clear that the State preserved. But whether the State could
the defendant “committed any crime.”5 could not have cured-the-defect. have cured-the-defect is irrelevant to the
The Court then held that counsel’s IAOC issue under Rule 3.380(c); even
failure to preserve this issue was IAOC. Second, Monroe does make it clear if it was clear that the State could have
The “failure to properly preserve an that, even if a sufficiency issue is not cured-the-defect during trial, it would
otherwise clear error may constitute fundamental error under the a/any-crime still be IAOC to fail to raise the suffi-
[IAOC] cognizable on direct appeal,” test, the failure to preserve the issue may ciency issue under Rule 3.380(c).
the Court said; and this error was clear constitute IAOC that can be remedied
Spring 2019 | FLORIDA DEFENDER •  21

Also irrelevant to the deficient- with regard to unpreserved sentencing claims use different legal analysis and
performance element are the other two errors that are apparent in the record, language. But in this context, we must
possible limits that might be read into refusing to address such issues on direct first “determine the sufficiency of the
Monroe, i.e., 1) whether the unproven appeal only “shift[s] to defendants evidence” in order to “review the conduct
element was disputed during closing, the burden of filing postconviction of trial counsel”; if the sufficiency issue
and 2) whether the trial court asked motions, and to trial courts the burden is meritless, then the failure to raise it
counsel about moving for an acquittal. of processing [such] motions,” which was not IAOC. It is also true that, if the
Counsel’s duty to raise a valid sufficiency does not “advance[ ] the overall goal of sufficiency issue has merit, there is no
issue is unaffected by either of these facts; judicial efficiency.” possible valid excuse for counsel’s failure
counsel must know what elements the to raise it (under Rule 3.380(c) at least).
State must prove, regardless of what is Thus, the language in Monroe about In effect, in this context the two claims
argued in closing or what hints the trial apparent-from-face-of-record and waste- are inextricably intertwined. As Justice
court might drop. of-judicial-resources does not provide Wells once noted, because a fundamental
any basis for concluding that Monroe error is one that is “so serious that the
Thus, as to the deficient-perfor- does not adopt a blanket rule. trial judge should have sua sponte ...
mance element of an IAOC claim, any correct[ed] it,” it “logically follows [that]
possible limits that Monroe may be In sum, Monroe can be read as counsel who did not object to such an
read as imposing do not justify reading adopting a blanket rule that all failures egregious error [was ineffective].”11
Monroe as not adopting a blanket rule. to raise valid sufficiency issues always
The same is true with regard to the constitute IAOC that can be remedied Indeed, an IAOC clam is a funda-
possible limits on the prejudice element. on direct appeal, and there doesn’t seem mental error claim, as applied to a
When a defendant challenges a convic- to be any good reason to conclude specific set of facts: Fundamental error
tion on IAOC grounds, the prejudice otherwise. occurred because the defendant was
issue concerns “whether there is a reason- prejudiced when he was denied his
able probability that, absent the errors, THE RELATIONSHIP constitutional right to effective assistance
the factfinder would have had a reasonable BETWEEN F.B. AND MONROE of counsel.12
doubt respecting guilt.”7 In sum, when the
validity of a conviction is challenged on If Monroe adopted such a blanket In sum, Monroe should be read as
IAOC grounds, the sentence is irrelevant rule, this would mean that F.B. is adopting a blanket rule that all failures
to the prejudice inquiry. now moot. Why raise an unpreserved to raise valid sufficiency issues constitute
sufficiency issue as fundamental error IAOC that can be remedied on direct
The Monroe Court also noted that, (requiring one to satisfy the a/any-crime appeal. Monroe recognized that, even
in that case, the IAOC was “apparent test) when one can get the same relief if an issue has been expressly declared
from the face of the record” and it would by framing the issue as an IAOC claim not to be fundamental error, the failure
be “a waste of judicial resources” to fail to (which is unlimited)? While the Monroe to preserve that issue can still be found
address the issue on direct appeal.8 But Court did not note this question, it did to be IAOC that can be remedied on
these factors do not impose any limits on answer a different question regarding direct appeal. This same logic applies
a blanket rule. Preserved or not, evidence the relationship between a fundamental- to all IAOC claims based on a failure to
insufficiencies will always be “apparent in error claim and an IAOC claim in this preserve a valid sufficiency issue. Note
the record.” If they were not so apparent, context. The district court in Monroe here the cases of T.T.S. v. State, 253 So.
we could not conclude that the evidence refused to grant relief on the unpreserved 3d 1154 (Fla. 4th DCA 2018), D.D.
was insufficient; indeed, what can it issue as an IAOC claim because doing v. State, 253 So. 3d 121 (Fla. 2d DCA
mean to say “the evidence is insufficient that “would be tantamount to holding 2018), and Bagnara v. State, 189 So. 3d
but that insufficiency is not apparent that [the] issue need not be preserved, 167 (Fla. 4th DCA 2016), all of which
in the record”? And if the insufficiency contrary to [F.B.]”9 Responding to this both 1) followed F.B. and concluded
is apparent, it will be equally apparent point, the Florida Supreme Court said its that the State’s failure to prove a “value”
that counsel was ineffective for failing to “finding [of IAOC did] not undermine element was not fundamental error, but
preserve the issue. the holding in F.B. that a sufficiency then 2) reduced the convictions to lesser
claim must ordinarily be preserved” offenses because it was IAOC to fail to
And if the evidence-insufficiency is because, although “the factual issues preserve that “value” issue.
apparent; and the IAOC is apparent; underpinning both claims may overlap,
then, in every case, it would be a waste one challenges the sufficiency of the evidence In sum, as a practical matter, Monroe
of judicial resources to affirm on direct [and] the other reviews the conduct of trial seems to have, if not overruled F.B., at
appeal (due to non-preservation) and counsel.”10 least rendered it moot.
divert the matter to postconviction
proceedings. As was said in Maddox v. This attempt to distinguish the two QQQ
State, 760 So. 2d 89, 98 (Fla. 2000) claims is unconvincing. It is true that, on
their face, sufficiency claims and IAOC

22 • FLORIDA DEFENDER | Spring 2019

POST-MONROE DISTRICT court cases in this group) because the CASES FINDING THAT FUNDA-
COURT CASE LAW evidence in Lesovsky did not prove a MENTAL ERROR OCCURRED
lesser-included offense of the convic-
In the post-Monroe district court tion being challenged on appeal. But This latter issue may have been
cases, five courts followed Monroe the evidence did prove that Lesovsky implicitly addressed in two of the three
and granted relief on IAOC grounds,13 committed a/any-crime, i.e., the convic- post-Monroe cases that granted relief on
and three courts granted relief under tions that the court affirmed. The court grounds of fundamental error, although
the a/any-crime test for fundamental did not expressly consider whether these those two courts may disagree with
error.14 But these cases raise — and don’t two proven crimes would disqualify Lesovsky. In George, the court affirmed
answer — several questions. Lesovsky under the a/any-crime test. a conviction for delivery of cocaine but
But it may be implicit in Lesovsky that reversed one for conspiracy to deliver
CASES FINDING THAT the court believed that the commis- cocaine “because there is a complete
IAOC OCCURRED sion of these two other crimes meant failure of proof to establish the commis-
Lesovsky failed the a/any-crime test: sion of [a conspiracy].”19 Note that the
Four courts reduced convictions to The court may not have used the F.B.- crucial phrase here — “complete failure
ones for lesser-included offenses because, Monroe test for fundamental error of proof ” — is indistinguishable from
although those defendants failed the a/ because it concluded that, even if there the language in Lesovsky (“complete
any-crime test, IAOC was established is a “complete absence of evidence” to absence of evidence”). And, as in
because counsel failed to preserve the prove the conviction being challenged Lesovsky, the evidence in George proved
meritorious sufficiency issue.15 One of on appeal (or a lesser-included offense), the defendant committed a/any-crime
these courts noted that the State could this failure of proof was not fundamental (delivery of cocaine). But, contrary to
not have cured-the-defect if the issue error because the evidence proved an Lesovsky, the implication in George is
had been timely raised, although this entirely separate offenses. that the a/any-crime test applies, not
court did not expressly say that this was to the evidence as a whole (including
a requirement before IAOC could be
found; nor did this court address the fact Services Include: Case File Review,
that the cure-the-defect logic does not Trial Preparation, Expert Witness Testimony,
apply under Rule 3.380(c).16 These issues
were not noted in the other three cases. Training Seminars. See Website!

The fifth case in this group is • Male DNA Screening
Lesovsky, which affirmed two lewd-act- • Body Fluid ID
on-minor convictions but vacated a third • Serology
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not lewd as a matter of law. Noting the • CODIS
“complete absence of evidence” to prove • Cold Cases
this third charge, the court said IAOC
was “indisputable” because “there is no everhartforensicdna.com
rational explanation or strategic reason” Erika Everhart
for counsel’s failure to raise this issue.17
The court also said the “failure to move
for a judgment of acquittal when the
State has not proved an essential element
of its case, when it is clear that the State
could not reopen its case to prove that
essential element, amounts to [IAOC]
that may sometimes be [remedied] on
direct appeal.”18 The implication here is
that IAOC will be found only when it is
clear that the State could not have cured-
the-defect (and, perhaps, only sometimes
in that circumstance). Again, the court
did not note Rule 3.380(c).

Lesovsky is distinguishable from F.B.
and Monroe (and the four other district

Spring 2019 | FLORIDA DEFENDER •  23

evidence of unrelated crimes), but only “That wasn’t much of a plea bargain, if you ask me.”
to the conviction being challenged on
appeal. This in turn seems to mean the a/any-crime test and concluded “reclassifying” an offense based on
that only lesser-included offenses of the it was fundamental error for the trial weapon use. But such logic elevates
conviction being challenged can qualify court to use §775.087(1) to reclassify form over substance, given Apprendi
as the a/any-crime that disqualifies a a second-degree murder conviction v. New Jersey, 530 U.S. 466 (2000).
defendant under the F.B.-Monroe funda- from a first-degree felony to a life As a practical matter, 1) Castillo was
mental-error test. If this is an accurate felony, because the State didn’t prove convicted of the offense of armed
reading of George, it may conflict with Castillo “personal[ly] possess[ed] a second-degree murder (not the offense
Lesovsky. deadly weapon” while committing the of second-degree murder, which was
crime.22 Castillo clearly committed a/ later “reclassified” by the trial court
The second case here is Morris. any-crime, i.e., second-degree murder. based on weapon use); but 2) the State
He was convicted of drug-trafficking, But the court did not explain why the failed to prove that he was armed,
possession of paraphernalia, and posses- F.B.-Monroe test didn’t compel affir- which is an element of the offense of
sion of a conveyance used for trafficking. mance; the State proved that lesser- conviction. Viewed this way, it is hard
The court affirmed the first two convic- included offense but failed to prove to see why Castillo doesn’t conflict with
tions but held the State failed to prove the additional fact needed to prove the F.B. and Monroe: Even though the State
the conveyance crime. Quoting the a/ greater offense of conviction. proved a lesser-included a/any-crime,
any-crime test from F.B. and Monroe, the court concluded that fundamental
the court also quoted tests from some The Castillo court may have tried error occurred because the State failed
pre-Monroe (but post-F.B.) district to finesse this problem by framing the to prove the additional element needed
court cases, in which courts held it was issue, not as a sufficiency issue, but as for the crime of conviction.
fundamental error to convict if 1) “the an issue concerning the trial court’s
State failed to prove an essential element
of the crime;” and 2) “the facts affirma-
tively proven…do not constitute the
charged offense as a matter of law.”20
The court also said this latter test is “[c]
onsistent with F.B.”

But neither this latter test nor the
“failed to prove an essential element”
test are “consistent” with F.B. and
Monroe. In both F.B. and Monroe,
the State “failed to prove an essential
element” and “the facts affirmatively
proven do not constitute the offense”
of conviction. And, as in Lesovsky and
George, the State clearly proved that
Morris committed a/any-crime, i.e., the
two convictions that the court affirmed.

The Morris court also noted that
“there is no lesser included charge to
the conveyance offense, which further
supports the conclusion that evidence
was ‘insufficient to show that a crime
was committed at all.’ ”21 The obvious
unspoken implication here is that the
a/any-crime test applies only to lesser-
included offenses and not to, literally,
any crime whatsoever (including crimes
wholly unrelated to the crime being
challenged on appeal).

In the third case in this group
is Castillo v. State, 217 So. 3d 1110
(Fla. 3d DCA 2017). That court cited

24 • FLORIDA DEFENDER | Spring 2019

DISTRICT COURT CONCERNS the issue; but the court did not suggest in the courts.30 Matters of when and how
ABOUT MONROE what good reason there might be for not to require preservation, and the bases for
raising the issue under Rule 3.380(c). granting relief on unpreserved issues,
The final case to note here is Sorey v. Nor did the court explain why it believed seem to be within the Court’s bailiwick.31
State, 252 So. 3d 853, 854 (Fla. 1st DCA that raising the issue as an IAOC
2018), petition for review pending. claim amounted to “circumventing the Finally, there is no conflict between
Convicted of selling drugs within standard of fundamental error” through §924.051 and the concept of granting
1,000 feet of a church, Sorey argued a “different standard that could provide relief on unpreserved IAOC claims.
on appeal that IAOC occurred because an easier path to reversal.” As argued In allowing fundamental errors to be
counsel failed to raise the issue that “the above, in this context fundamental-error raised under §924.051, the legislature
State failed to prove the offense was claims and IAOC claims are inextricably deferred to “the judicial[] definition of
committed within 1,000 feet of a church intertwined — mirror-image halves of a ‘fundamental error,’ ”32 which the Florida
which regularly conducted religious larger, unitary whole — and both travel Supreme Court has defined as including
services.” Noting this case was “nearly the same “path to reversal” under the errors that “amount to a denial of due
identical” to Fletcher v. State, 168 So. 3d same standard of review. process” or “so damaged the fairness of
330 (Fla. 1st DCA 2015), which held the trial that the public’s interest in our
the evidence was insufficient to prove Concurring in Sorey, Judge Winsor system of justice requires [a remedy].”33
this element, the Sorey court refused to first said “Sorey has shown the possibility The right to effective counsel is a basic
address the issue in Sorey’s case because, of insufficient evidence on a somewhat element of due process. Thus, again,
unlike in Fletcher, Sorey didn’t preserve technical point, but he has not shown an IAOC claim is a fundamental error
the issue.23 The court said “Monroe is indisputable prejudice.”25 Judge Winsor claim, applied to specific facts: Funda-
limited to its facts and constitutes a rare did not explain what he meant by “a mental error occurred because the defen-
example of [IAOC] that should have somewhat technical point” but, to dant was deprived of the due process
been remedied on direct appeal”; and Sorey, it was the difference between a right to effective counsel; and, when this
Sorey’s case was not a “rare example” second-degree felony and a first-degree occurs, it so damages the fairness of the
because the IAOC was not “evident on felony.26Although Judge Winsor did not trial that the public interest in our system
the face of the record” because Sorey explain what he meant by “the possibility requires a remedy.
did not of insufficient evidence” — it would
seem that the evidence in the record is CONCLUSION
claim that any error below was either sufficient or it is not —, he seemed The meaning of F.B. and Monroe, and
fundamental. The trial court is to mean that he didn’t know whether the
the more appropriate forum to State could have cured-the-defect if the the relationship between the two, needs
present claims of [IAOC]…. An issue had been timely raised.27 clarifying. But, given Rule 3.380(c), it
appellant should not be permitted seems that all failures to raise a valid
to circumvent the standard of The two Sorey opinions are among sufficiency issue constitute IAOC.
fundamental error by claiming several in which district court judges
that the failure to raise the issues expressed concerns about recognizing We may note two further points.
constitutes [IAOC], “which IAOC claims on direct appeal. Some say First, to the extent that the preservation
entails a different standard that this practice conflicts with §924.051(3), rule is designed to give trial courts the
could provide an easier path which allows appellate courts to address chance to initially rule on issues, there
to reversal, and which deprives only issues that are either preserved or is less need to strictly enforce that rule
trial counsel of the opportunity constitute fundamental error.28 Such with regard to decisions that trial courts
to defend themselves against concerns are unfounded. It is true that, must, or may, make regardless of whether
allegations of unprofessional in §924.051, the legislature did not anyone raises the issue. This includes
conduct.”24 expressly allow IAOC claims to be raised sufficiency issues, which courts “may”
on direct appeal; but it didn’t expressly address sua sponte under Rule 3.380(a).
The court did not note that, under forbid that either, even though the Thus, an unpreserved sufficiency issue
the a/any-crime test, Sorey could not Florida Supreme Court had long recog- could be raised without invoking either
“claim that the error was fundamental,” nized (before the enactment of current IAOC or fundamental error, by framing
because the State proved he committed §924.051(3)) that some IAOC claims it as follows: The trial court erred in
a/any crime (the lesser offense of selling can be raised on direct appeal.29 Further, failing to sua sponte grant an acquittal
drugs). The court did not explain why if the legislature had expressly barred under Rule 3.380(a). As one federal
the IAOC in that case was not “evident IAOC claims on direct appeal, that court said after defining plain error,
on the face of the record,” although the would seem to infringe on the Florida “[i]n the context of sufficiency of the
implication may be that counsel may Supreme Court’s state constitutional evidence, the error is the failure of the
have had good reason for not raising power to regulate practice and procedure [trial] court ‘of its own motion’ to order a
judgment of acquittal when the evidence

Spring 2019 | FLORIDA DEFENDER •  25

is insufficient.”34 Indeed, some courts 1 852 So. 2d at 230. mental error challenge to evidence-sufficiency
in other states conclude a sufficiency 2 Id. because, under the a/any-crime test, the defendant
issue is preserved by a not guilty plea, 3 Richard Sanders, “Doin’ Time for an committed a lesser-included offense, but then
which effectively “ask[s] for a judgment Unproven Crime: The Problem of Unpreserved 2) reduced the conviction to that lesser-included
of acquittal and … challenge[s] the Evidence Sufficiency Issues in Criminal Appeals,” offense because the greater offense of conviction
sufficiency of the evidence by implicitly 27 St. Thomas L.R. 94 (2015); see also Richard J. was not charged in the information and thus
asserting that the State [cannot] meet its Sanders, “Evidence Sufficiency and Fundamental “the trial court committed fundamental error
burden of proof.”35 Error in Criminal Cases,” 79 Fla. B. J. 28 (July/ [in a bench trial] by convicting [him] of a[n
Aug. 2005). Although F.B. was a juvenile case and uncharged] crime.” Kirkland seems to establish
Second, to the extent the preserva- Rule 3.380(c) would not apply, the juvenile rules that it is fundamental error not to properly charge
tion rule is designed to prevent the contain a similar provision. Fla.R.Juv.P. 8.130. an element of the crime of conviction, even if it is
need for retrials, there is less need to Further, none of the post-F.B. cases that apply the not fundamental error to fail to prove that same
strictly enforce that rule with regard to F.B. rule, most of which involve adult convictions, element, at least as long as some (lesser-included?)
issues that, if successful, will not result suggest that the logic or applicability of F.B. is crime is proven.
in retrials; and this includes sufficiency contingent on which rules apply.
issues, in which principles of double 4 Monroe v. State, 148 So. 3d 850, 861 (Fla. 15 T.T.S., 253 So. 3d at 1157; D.D., 253 So. 3d
jeopardy bar a retrial.36 As one district 1st DCA 2014), remanded, 191 So. 3d at 404. at 125; Twigg, 254 So. 3d at 469-71; Barnes, 218
court put it, “the real purpose of the 5 191 So. 3d at 404. So. 3d at 505-06.
[preservation] rule applies during a jury 6 Id. at 403–04 (emphasis added).
trial” 7 Strickland v. Washington, 466 U.S. 668, 695 16 Twigg, 254 So. 3d at 470-71.
(1984) (emphasis added). 17 198 So. 3d at 991-92.
to assure correct rulings … on 8 191 So. 3d at 403. 18 Id. at 990 (emphasis added) (citation
questions relating to the admis- 9 148 So. 3d at 860, n.3. omitted).
sibility of evidence and instruc- 10 191 So. 3d at 402, n.5 (emphasis added). 19 208 So. 3d at 839.
tions of law[,] because judicial 11 Downs v. Moore, 801 So. 2d 906, 917 (Fla. 20 2019 WL 208802 at *2.
errors in those instances cannot 2001) (Wells, C.J., concurring); see also Lowe 21 Id. at *2.
be effectively corrected after the v. State, 2 So. 3d 21, 38 (Fla. 2008); Chandler 22 Id. at 1115.
jury renders a verdict…. There is v. State, 848 So. 2d 1031, 1046 (Fla. 2003); 23 252 So. 3d at 855.
no need to apply the rule strictly Guarscio v. State, 64 So. 3d 146, 148-49 (Fla. 2d 24 Id. at 855-56 (citation omitted).
to pure rulings of law which can DCA 2011); Ross v. State, 726 So. 317, 319 (Fla. 25 Id. at 856 (Winsor, J., concurring).
be corrected independent of a 2d DCA 1998). The Monroe Court recognized 26 Cf. §893.13(1)a)1. with §893.13(1)(e)1.,
jury verdict, such as [sufficiency that there is a “high correlation between errors Fla. Stat. (2017).
issues].37 that may be corrected as fundamental error … and 27 See id.
errors that may be corrected as [IAOC] on direct 28 See Elmore v. State, 172 So. 3d 465, 467 (Fla.
In sum, we began with the question appeal.” 191 So. 3d at 402, n.5. 1st DCA 2015); Monroe, 148 So. 3d at 859-60
of how appellate courts should handle 12 Although fundamental error is often and n.3, quashed on other grounds, 191 So. 3d at
the problem of unpreserved sufficiency defined in grand (and somewhat vague) terms, 395; Seccia v. State, 720 So. 2d 580, 582 (Fla. 1ST
issues raised in direct criminal appeals. courts have recognized a few more specific DCA 1998), remanded, 764 So. 2d 573, 574 (Fla.
It should be clear by now that the fundamental error rules that apply to recurring 2000); Latson v. State, 193 So. 3d 1070, 1072-74
label we apply to the answer to this fact patterns, such as convictions of non-existent (Fla. 1st DCA 2016) (Winkour, J., concurring).
question — fundamental error, plain or uncharged offenses (e.g., Achin v. State, 436 29 E.g., Blanco v. Wainwright, 507 So. 2d 1377
error, IAOC-plain-on-the-face — is less So. 2d 30 (Fla. 1982); Zwick v. State, 730 So. (Fla. 1987).
important that the reasoning we use to 2d 759 (Fla. 5th DCA 1999)), and some double 30 Art. V(2)(a), Fla. Const.
get that answer. In Florida, given that jeopardy and due-process sentencing issues (e.g., 31 See Leonard v. State, 760 So. 2d 114, 118
the cure-the-defect logic is the only Novaton v. State, 634 So. 2d 607 (Fla. 1994); (Fla. 2000); State v. Jefferson, 758 So. 2d 661,
reason to require sufficiency issues to Green v. State, 84 So. 3d 1169 (Fla. 3d DCA 664–65 (Fla. 2000).
be preserved but Rule 3.380(c) renders 2012)). Another example involves jury instruc- 32 Maddox, 760 So. 2d at 95.
that logic moot, there is no reason to tions that omit or fail to accurately define an 33 Castor v. State, 365 So. 2d 701, 704, n.7 (Fla.
require sufficiency issues to be preserved. element of an offense, which is fundamental 1978) and Murphy v. International Robotic Systems,
Monroe should be read as adopting a error if that element “is disputed [and] the 766 So. 2d 1010, 1026 (Fla. 2000), respectively.
blanket rule that all sufficiency issues inaccurate definition is pertinent…to what the 34 United States v. Meadows, 91 F.3d 851, 855
should be addressed on direct appeal. Q jury must consider….” Reed v. State, 837 So. 2d (7th Cir. 1996).
366, 369 (Fla. 2002). 35 State v. Hayes, 681 N.W.2d 203, 213 (Wisc.
13 In addition to the T.T.S. and D.D. cases noted 2004).
above, the other cases are Twigg v. State, 254 So.3d 36 Burks v. United States, 437 U.S. 1 (1978).
464 (Fla. 4th DCA 2018), Barnes v. State, 218 37 Williams v. State, 516 So. 2d 975, 976 (Fla.
So. 3d 500 (Fla. 5th DCA 2017), and Lesovsky 5th DCA 1987); see also State v. Rhoden, 448
v. State, 198 So. 3d 988 (Fla. 4th DCA 2016). So. 2d 1013, 1016 (Fla. 1984) (asserting the
14 Morris v. State, 2019 WL 208802 (Fla. 2d preservation rule “was fashioned primarily for use
DCA Jan. 16, 2019); George v. State, 208 So. 3d in trial[s and was] intended to give trial judges
838, 839 (Fla. 5th DCA 2017); Castillo v. State, an opportunity to address objections made by
217 So. 3d 1110 (Fla. 3d DCA 2017). Also worth counsel in trial,” and the purpose of the rule “is
noting is Kirkland v. State, 225 So. 3d 920, 923 not present in the sentencing process because
(Fla. 1st DCA 2017), which 1) rejected a funda- any error can be corrected by a simple remand
to the sentencing judge”), receded from on other
grounds, Maddox, 760 So. 2d at 100.

RICHARD SANDERS graduated from the University of Pennsylvania Law School in 1982. He has worked in the appellate division of the
public defender’s office, 10th circuit, since 1996.

26 • FLORIDA DEFENDER | Spring 2019

Florida’s Criminal Justice
System is in Need of
Top-to-Bottom Repairs

by

Adam
Tebrugge

An INTRODUCTION

OVENRHOTAUL, One day in late May of 1984, I
entered the office of the Manatee
A TUNE-UP County Public Defender and began
a 35‑year encounter with Florida’s
criminal justice system. There were
approximately 26,400 inmates serving
time in Florida prisons.1 Now we have
more than 97,000 prisoners.

Each year experts, legislators and
media outlets point out the enormous
problems caused by the imprisonment of
nearly 100,000 Floridians. Each year we
watch while states like Texas, Georgia,
Alabama and Louisiana pass reform
packages that actually reduce their
reliance on incarceration and improve
the delivery of rehabilitative services.
And each year in Florida, modest
reforms are debated but not enacted and
our criminal justice system continues to
fail our communities.

The 2018 legislative session was no
different. Going in, there appeared to
be consensus that the time was right for
several modest reforms. Bills were intro-
duced to raise Florida’s felony threshold,
reform driver license suspensions, and
provide a safety valve to judges when
sentencing first time offenders facing a
minimum mandatory drug sentence.
All of these efforts obtained widespread
support and passed numerous committees,
only to fail on the final day of the session.

Instead of reform from the legislature
we got data collection. Midway through
the session, House leadership introduced
a wide-ranging package of tweaks to
reporting data from the criminal courts.
Money that could have been spent on
rehabilitative efforts will instead be used
to hire more I.T. personnel. Though this

Spring 2019 | FLORIDA DEFENDER •  27

data reform has been widely praised, I fear who is granted pretrial release,”3 judges decide whether to continue the punitive
the real outcome will be to derail reform around the state continue to require cash drug war or embrace alternatives that
efforts, not only in 2018, but also for bonds for a wide variety of offenses. promote public health.
years to come. Advocates will be told that
we have to wait for the results of the data Trial judges should be given pretrial ABOLISH THE FELONY
before any tweaks can be made. Meanwhile release options for defendants in order MURDER RULE
there is plenty of existing data demon- to alleviate concerns about failure to
strating just how broken the system is. appear or reoffending. These options Have you ever watched voir dire
include creating local pretrial supervi- in a felony murder case? Typically the
A few weeks after the close of the sion efforts, using text messages and jurors are horrified when they learn they
2018 legislative session, busses pulled other reminders, and reducing the are being asked to convict someone of
up to drug treatment centers around the number of pretrial court appearances. murder who never killed anyone. The
State of Florida. Men and women were Appellate courts should be more vigilant judge and the state attorney patiently
searched, handcuffed and taken back to and consistent in ordering the release explain that they must follow the law,
prison. These people were not a threat of defendants inappropriately held on and remove those who express reluc-
to anyone nor had they done anything monetary bond. Elected State Attorney’s tance. This leads to the conviction
recently wrong. The Florida Department can make policy decisions not to seek of people like Ryan Holle. Ryan was
of Corrections had just signed a new cash bail for misdemeanors and third 20 years old when he loaned his car to
$50‑million health care contract with a degree felonies. Sheriff’s and police chiefs his roommate who then went out with
private provider to provide care to the can ensure that notices to appear, civil others and committed a robbery and
thousands of sick and elderly inmates in citations and other diversion programs murder in 2003. “No car, no crime” the
Florida prisons. This meant a $28‑million are used in lieu of arrest. prosecutor successfully argued, and Ryan
hole in the budget that the legislature and was convicted of first-degree murder and
Governor refused to fill. So at the height of REPEAL FLORIDA DRUG LAWS sentenced to life imprisonment.7
a deadly opiate crisis, Florida closed drug AND ADOPT HARM
treatment programs around the state.2 REDUCTION STRATEGIES Repealing the felony murder rule
would cure this injustice. Anyone who
Going forward, I believe that we must For these past 30 years, we have all assists in the commission of a serious
start to consider far more wide-ranging sat in courtrooms around the state and felony would still be held accountable
reforms. Too often we do not contem- watched thousands of young men and for their role in a crime, and judges can
plate what real change would look like women sentenced to lengthy prison terms take into account the harm caused by
because we believe it to be politically for the crime of possessing or selling those crimes. However, we should no
unrealistic. But if the goal is to signifi- narcotics. Presumably the reason this was longer punish people for crimes they
cantly reduce Florida’s prison population, done was to discourage or prevent drug use did not commit or intend. The Florida
radical change is needed. At our present by our citizens. Instead of preventing use, laws that establish the offense of felony
rate of “reform” it is estimated that it the “War on Drugs” has filled our prisons murder8 and mandatory sentence of life
will take 75 years to reduce the prison with addicts, pitted law enforcement imprisonment should be repealed.
population to 50,000 people. We can against neighborhoods, and sucked up
and must do better. Here are some of the resources that could be used for treatment. REPEAL THE “CRIMINAL
major reforms that should be considered. The net result is that 63,632 Americans PUNISHMENT CODE” (CPC)
This list is just a starting point for the died from drug overdoses in 2016.4 (FLORIDA CHAPTER 921)
wide ranging debate needed as we strive
to improve our criminal justice system. To prevent these deaths, Florida Florida sentencing guidelines took
should consider a variety of harm reduc- effect in 1983. For the most part they
REFORM PRETRIAL RELEASE tion strategies and move towards providing worked well, providing a consistent
On any given day in Florida, treatment on demand. “The philosophy sentencing range across the state while
of harm reduction has roots in the public allowing judges the discretion to deviate in
approximately 52,000 people are locked health approach. It does not endorse drug special cases. After tweaking the guidelines
inside of Florida’s 67 county jails. use, but accepts drug use as a reality and in 1994 and 95, the legislature enacted the
Most of these people are awaiting trial focuses on reducing its harmful conse- criminal punishment code in 1998. The
and are presumed innocent of their quences, including death, HIV, hepatitis CPC shifted the balance to the prosecu-
charges. There is a growing consensus C, criminal activity, and incarceration.5 tors by establishing a “floor” (a minimum
that a person’s freedom should not Harm reduction incorporates a spectrum prison sentence) but removing the ceiling
depend upon their ability to hire a bail of strategies from safer use to managed use (the maximum sentence may be imposed
bondsman. While Florida law “create(s) to abstinence to meet drug users “where in any case). Put another way, the CPC
a presumption in favor of release on they’re at,” addressing conditions of use greatly expanded the ability of judges to
nonmonetary conditions for any person along with the use itself.6 Florida must sentence harshly while limiting their ability

28 • FLORIDA DEFENDER | Spring 2019

to mitigate. Prison sentences are manda- offenders or those offenders who have prisoners. That law should be repealed.
tory in many different types of cases. exhausted all other reasonable alterna- Florida needs a mechanism by which
tives. “Because recidivism rates decline
The CPC made explicit the incar- markedly with age, lengthy prison a prisoner’s sentence can be reviewed
ceration philosophy of 20 years ago: sentences, unless they specifically target after time, and his or her release consid-
“The primary purpose of sentencing is very high-rate or extremely dangerous ered. We abolished parole and perhaps
to punish the offender. Rehabilitation offenders, are an inefficient approach to that was for the best. Parole boards
is a desired goal of the criminal justice preventing crime by incapacitation.”10 around the country have proven ineffec-
system but is subordinate to the goal of tive at carrying out their responsibilities
punishment.”9 The end result of this Philadelphia’s District Attorney, Larry in a transparent and consistent manner.
goal was a hundred thousand Florid- Krasner, requires his staff to justify to the While executive clemency is technically
ians in prison. At this point the CPC is Court any request for a prison sentence. available, it is rarely used and not up to
too complicated and harsh to allow for According to Krasner; ““A dollar spent on the task of reviewing thousands of cases.
a reformulation of sentencing policy. incarceration should be worth it. Other-
Legislators would be better off scrapping wise, that dollar may be better spent on The best option may be to expand the
the CPC and starting over. addiction treatment, on public education, ability of trial judges to review and modify
on policing and on other types of activity the sentences that came out of their courts.
REPEAL MINIMUM MANDATORY, that make us all safer.”11 Rules and guidelines could be developed
HABITUAL OFFENDER AND PRIS- to determine eligibility and process.
ON RELEASE REOFFENDER LAWS A policy like this could have impor- Courts are well versed in providing notice
tant implications in Florida where there to affected persons, transparency to the
Repealing the CPC should be only one is wide disparity in incarceration rates community and individualized consider-
aspect of comprehensive sentencing reform amongst the judicial circuits. The legis- ation of offenders.15
in Florida. Thousands of Florida prisoners lature could reward those circuits that
are confined under a “minimum manda- use fewer prison resources. The costs ABOLISH THE DEATH PENALTY
tory” sentence imposed by a trial judge of incarceration should be compared Anyone who has ever had any contact
who had no discretion to do otherwise. to the potential for restitution or other
While harsh drug law minimum manda- rehabilitative efforts. with a capital case in Florida is all too
tories have received much of the attention, familiar with fundamental flaws in the
Florida law contains so many different PRISON RELEASE REFORM system. Death penalty cases take consider-
minimum mandatories that they are able time, treasure and talent from the rest
almost impossible to categorize or count. Florida has over 96,000 inmates, of the system. At its core, capital punish-
at a cost of over $20,000 per inmate ment is a lie to the community, promising
There are multiple examples of the annually12 and no way to review their a reliable determination of who should live
injustices wrought by minimum manda- sentences or consider possible release or die. In reality this has not only proven
tory sentences that have been collected into the community. Nearly a quarter impossible but has also resulted in a terrible
by advocacy groups like FAMM (Families of these prisoners are over the age of body of law and the wrongful convictions
Against Minimum Mandatories). The 50.13 Parole was abolished in the early and execution of innocent persons. While
fundamental problem with all laws that limit 1990’s, and all inmates must serve at juries continue to consistently reject the
judicial sentencing discretion is that they least 85% of their sentence. While there death penalty around the state, its costs are
prevent the individualized consideration of is a “conditional medical release” autho- hidden from public view. Abolishing the
the offender, their crime and their punish- rized by statute, the restrictions make death penalty will help restore confidence
ment that is fundamental to American it essentially unworkable. There is no in the system and result in the immediate
jurisprudence. While “safety valves” have benefit to our society in caging elderly savings of hundreds of millions of dollars,
been considered to allow certain offenders and seriously ill people who could be short and long term.
to avoid these harsh sentences, minimum safely released to their families. Florida’s
mandatories really have no legitimate justi- compassionate release program should be REDUCE LIFE SENTENCES
fication to begin with. dramatically and immediately expanded. In Florida, a sentence of life impris-

REQUIRE THE PROSECUTOR Thousands of other inmates have onment without possibility of parole
TO ESTIMATE AND THE COURT been sentenced to extraordinarily long (LWOP) is the functional equivalent of the
CONSIDER THE COST OF prison sentences at considerable financial death penalty; inmates remain in custody
INCARCERATION IN EVERY cost to the state. Many of these people until they die. In 2012, Florida was home
CASE WHERE A PRISON pose little threat to public safety and to more than 12,500 prisoners sentenced
SENTENCE IS SOUGHT could be supervised in the community. to life, more than half of whom are African
Because of Florida’s “85%” law,14 the Americans.16 These include inmates like
Prison beds should be treated as a Florida Department of Corrections is Alethia Jones, a 54‑year-old diabetic
finite resource and reserved for dangerous unable to consider releasing any of these amputee whom has already served 13 years

Spring 2019 | FLORIDA DEFENDER •  29

of a life sentence for her role as accessory REFORM THE ADVERSARY SYSTEM COURT REFORM
to the sale of a single piece of cocaine.17
As a trial attorney, I continue to If we are to have a system empow-
Should it really be the public policy believe in the adversary system when it ered to lock people in cages, we have to
of the State of Florida to routinely cage comes to determining a person’s guilt have confidence that the outcomes are
human beings for their entire natural or innocence, and I would rather see reliable. Some basic steps, like recording
life, with all of the attendant costs and a jury than a judge any day. But I no interrogations, establishing an indepen-
consequences? Perhaps such a sentence longer believe the adversary system is dent forensic science commission and
may be an appropriate substitute for appropriate for most plea bargains or limiting jailhouse “snitches” are essential
the death penalty in the most extreme sentencing hearings. When I first started to that determination. To ensure compli-
murder cases. Otherwise, judges should in the 1980s, judges typically acted as ance we must ensure that our indigent
be given options and discretion in mediators during the plea bargaining defense programs are well funded and
assessing the harm caused by the offender process and this helped resolve many adequate to meet the need and that our
and the prospect that they could be safely cases. Over time, judges withdrew from courts are vigilant in their enforcement.
released into the community at some “getting involved” and prosecutors were
point in the future. Life sentences should given more power by the legislature. Perhaps the most important reform
be rare and subject to reevaluation. This has resulted in a vastly uneven would be to improve the jurisprudence
negotiating position between the parties of our District Courts of Appeal. Law is
REDUCE FINANCIAL and results in “open pleas” to the court, only meaningful to the extent that it is
OBLIGATIONS AND PROBATION lengthy sentencing hearings and uncer- enforced. Our DCAs were intended to
tain and inconsistent outcomes. be the final appellate stop for most cases.
The goal of “cash register justice” was They have the obligation, therefore, to
to have defendants bankroll the system. A better model is found in the various correct trial court error in order to ensure
In reality, many defendants cannot afford specialty courts that have taken hold fundamental fairness and the uniform
to pay and are pushed into a cycle of debt around the court. All of the participants statewide application of our laws.
that makes it difficult to reintegrate them in these drug, mental health and veterans’
in to society.18 While court fees present courts are working towards the same Unfortunately, Florida appellate courts
a challenge for low-income defendants, outcome. Judges get involved in the case have long resorted to use of the “per curiam
they’re also challenging for the judges, early and use incentives and sanctions affirmed” (PCA) in most criminal cases.
court personnel and probation officers who to address the underlying behavior that No matter how serious the case or how
are obligated to impose and collect them. resulted in an arrest. Even in more serious significant the issues involved, the District
As noted by the Brennan Center: “Aggres- cases, judicial involvement with an eye Courts of Appeal typically offer no expla-
sive collection practices result in a range of towards resolution would improve plea- nation for their rulings. Florida is one of
collateral consequences. Missed payments bargaining. Rather than be conducted in the few states that allow this practice. I
produce more fees. Unpaid costs prompt secret these hearings would allow partici- am of the opinion that nothing has been
the suspension of driving privileges.”19 pation by all interested parties and would more corrupting to Florida law. If nothing
be transparent to the public. Restorative else, the widespread prevalence of PCA’s,
Lengthy probation terms are justice practices that identify the true particularly in criminal cases, has contrib-
counterproductive, using scant resources needs of victims continue to show promise uted to a loss of confidence in the judicial
to monitor and potentially imprison when implemented. process. “(I)t is too easy for a party who
an offender years after their crime. receives a PCA, particularly after having
As one probationer explained: “The For the adversary system to work, paid the filing fee and hired an attorney
system has also created an additional everyone needs to play by the rules. This who wrote a persuasive brief at some
layer of law enforcement control, intru- is particularly true of the most powerful expense to become skeptical of a judicial
sion and surveillance — especially in actor in the courtroom — the prosecutor. system that responds with a PCA and no
communities of color, which are heavily The Florida Rules of Criminal Procedure explanation.”22 Additionally, prosecutors
policed already. The system needs an and Rules of Professional Responsibility and trial judges are free to operate under the
overhaul. People who are monitored each impose a host of responsibilities upon assumption that there is little chance the
must be treated with human dignity. our State Attorneys. While prosecutorial case will be reversed, no matter the error.
Our rights are often denied because of misconduct is described in almost every
policies, procedures and rules that are issue of the Florida Law Weekly, offenders A solution has been proposed by
seldom explained and often administered are rarely punished. Repeated findings of Craig Leen, city attorney of Coral
arbitrarily. When we have been treated “harmless error” by the appellate courts Gables, who recently served as Chair
unfairly, there is no clear process to incentivize bad behavior. At the moment, of the Ad Hoc Subcommittee on Per
register grievances or appeal decisions the best way to hold elected State Attor- Curiam Affirmances for the Florida
that affect every aspect of our lives, neys accountable for the misdeeds of their Appellate Court Rules Committee. Leen
including our very freedom.”20 staff is at the ballot box.21 proposed a constitutional amendment to
the Constitutional Revision Commission
30 • FLORIDA DEFENDER | Spring 2019

(CRC) that added a sentence after the 4 “U.S. Drug Overdose Deaths Continue to More than
second sentence in Article V, Section 1 Rise; Increase Fueled by Synthetic Opioids,”
of the Florida Constitution relating to CDC (March 29, 2018), www.cdc.gov/media/ 97,000
Courts: “All appellate decisions must releases/2018/p0329-drug-overdose-deaths.html.
include an explanation of the basis for inmates are
the decision.23 He argues: “The exercise 5 K.F. Hawk, F.E.Vaca and G. D’Onofrio, serving time in
of judicial power receives legitimacy “Reducing Fatal Opioid Overdose: Prevention, Florida prisons,
from citation to precedent or an explana- Treatment and Harm Reduction Strategies,” The
tion as to why the law requires a certain Yale Journal of Biology and Medicine, 88(3), 235–245. 267% more
outcome.”24 Though the CRC did not
forward this proposal to the voters, the 6 “Principles of Harm Reduction,” Harm than in 1984.
Florida Supreme Court could require Reduction Coalition, http://harmreduction.org/
this of the District Courts of Appeal, about-us/principles-of-harm-reduction/. Florida Department of Corrections
perhaps with certain limited exceptions.
7 “Serving Life for Providing Car to Killers,” On any given day,
CONCLUSION New York Times (Dec. 4, 2007), www.nytimes.
It may seem politically unrealistic to com/2007/12/04/us/04felony.html. Holle had his 52,000
sentence reduced to 25 years by Florida’s clemency
propose major reforms such as these, when board in 2015. people are locked inside of
Florida has been unable to pass even the Florida’s 67 county jails.
modest legislation proposed so far. The 8 Fla. Stats. 782.04(2) and 782.04(3).
problem is that our criminal justice system 9 Fla. Stat. 921.002(1)(b). Florida Department of Corrections
is an ongoing humanitarian disaster that 10 “Criminal Justice Facts” from The Sentencing
costs us the equivalent of a major hurri- Project, found at www.sentencingproject.org/ Incarceration costs
cane every year. Unless major changes are criminal-justice-facts/. the state of Florida
proposed, debated and implemented, the 11 “Philadelphia’s New DA Wants Prosecutors
disaster will continue unabated. Reforms To Talk Cost Of Incarceration While In Court,” $20,000+
that seem impossible now can be achieved National Public Radio, March 31, 2018, www.
through advocacy and effort. npr.org/2018/03/31/598318897/philadelphias- per inmate
new-da-wants-prosecutors-to-talk-cost-of-incar-
The agenda provided here is only the ceration-while-in-cou. every year.
beginning. Florida’s juvenile justice and 12 “Quick Facts About the Florida Department
mental health community continue to of Corrections,” Florida Department of Correc- Florida Department of Corrections
need attention. Laws governing firearms, tions, www.dc.state.fl.us/oth/Quickfacts.html.
sex offenses and self-defense need a rewrite. 13 Annual Report of the Florida Department of Governor Ron DeSantis
Education, rehabilitative and release Corrections 2016-17 at 16. has proposed a
programs for prison inmates should be 14 Fla. Stat. 944.275
strengthened. Local law enforcement 15 See Adam Tebrugge, “Opening the Back $120 million
must be made less threatening and more Door: A Proposal to Expand Judicial Modifica-
responsive to the community. Rather than tion of Sentence,” The Florida Defender (Winter increase
tinker around the edges, Florida policy 2018).
makers should boldly move forward with 16 Ashley Nellis, “Life Goes On: The Historic in prison funding this year
a complete overhaul of the state’s criminal Rise in Life Sentences in America,” The Sentencing to pay for rising costs of
justice system. Q Project, September 2013, www.sentencingproject.
org/wp-content/uploads/2015/12/Life-Goes-On.pdf. inmate healthcare.
1 Florida Dept. of Corrections, Timeline 17 Josh Salman, “‘I Let my Family Down:’ A
1980–1986, found at www.dc.state.fl.us/oth/ $20 Crack Deal Sent Alethia Jones to Prison for Tampa Bay Times
timeline/1980-1986.html. Life,” Sarasota Herald Tribune (Dec. 5, 2017),
http://projects.heraldtribune.com/one-war-two- Spring 2019 | FLORIDA DEFENDER •  31
2 “Rick Scott, GOP House Leaders Cut Drug races/alethia.
Programs, Slashing Hundreds of Jobs,” Tampa 18 Rebekah Diller, “The Hidden Cost of Florida’s
Bay Times (May 25, 2018), www.tampabay.com/ Criminal Justice Fees, ” Brennan Center for Justice,
florida-politics/buzz/2018/05/25/rick-scott- www.brennancenter.org/publication/hidden-costs-
gop-house-leaders-cut-drug-programs-slashing- floridas-criminal-justice-fees (2010).
hundreds-of-jobs/. 19 Id.
20 Topeka Sam, “It’s Time to Overhaul America’s
3 Fla. Stat. 907(3)(a). Broken Probation and Parole Systems,” Open
Society Foundations, www.opensocietyfounda-
tions.org/voices/it-s-time-overhaul-america-
s-broken-probation-and-parole-systems.
21 See Adam Tebrugge, “Electing Better State
Attorneys in Florida,” The Florida Defender
(Spring 2018).
22 Craig E. Leen, “Without Explanation:
Judicial Restraint, Per Curiam Affirmances, and
the Written Opinion Rule,” 12 FIU L. Rev. 309,
320 (2017), http://ecollections.law.fiu.edu/lawre-
view/vol12/iss2/7.
23 Id. at 328
24 Id.

ADAM TEBRUGGE is a board certified criminal trial attorney with more than 30 years of
experience. He has worked as an adjunct professor of law at Stetson University and Thomas
Cooley colleges of law. Presently he works on issues concerning Florida criminal justice reform.

THE WORLD’S VICES c) When Lawyer May Reveal
Information. A lawyer may
VERSUS reveal confidential informa-
tion to the extent the lawyer
A LAWYER’S ETHICS reasonably believes necessary:
1) to serve the client’s interest
by and unless it is information the
client specifically requires
George E. J.D. not to be disclosed;
Tragos Patel 2) to establish a claim or
defense on behalf of the
Guns, gambling, marijuana, opioids, fulness in Statements to Others states: lawyer in a controversy
and alcoholic beverages are common In the course of representing a between the lawyer and
vices we see in everyday life. Many times, client a lawyer shall not knowingly: client;
a lawyer’s professional path crosses these a) Make a false statement of 3) to establish a defense to
vices. Although some would not see them material fact or law to a third a criminal charge or civil
as vices, they still have to be dealt with person; or claim against the lawyer
within the confines of the ethical rules b) Fail to disclose a material fact to based on conduct in which
upon which we all rely. Each of these vices a third person when disclosure the client was involved;
comes with its own set of risks for a lawyer is necessary to avoid assisting a 4) to respond to allegations in
who represents a client who deals in them. criminal or fraudulent act by any proceeding concerning
In some cases, the vices are legal. In some a client, unless disclosure is the lawyer’s representation
cases, they are not. However, the same prohibited by rule 4-1.6. of the client;
ethical rules apply and must be strictly 5) to comply with the Rules
adhered to. So, what are the pitfalls, and Florida Rule of Professional Conduct Regulating The Florida
how do we deal with them as attorneys? Rule 4-1.6 states: Bar; or
6)to detect and resolve
GUNS a) Consent Required to Reveal conflicts of interest between
In assisting a client Information. A lawyer must lawyers in different firms
not reveal information relating arising from the lawyer’s
with an application to to representation of a client change of employment
purchase a firearm, an except as stated in subdivisions or from changes in the
attorney does not deal (b), (c), and (d), unless the composition or owner-
with a tribunal, but rather with federal client gives informed consent. ship of a firm, but only if
and state agencies, such as the Depart- the revealed information
ment of Justice (DOJ) – Bureau of b) When Lawyer Must Reveal would not compromise the
Alcohol, Tobacco, Firearms and Explo- Information. A lawyer must attorney-client privilege
sives (ATF) and the Florida Department reveal confidential informa- or otherwise prejudice the
of Law Enforcement (FDLE). However, tion to the extent the lawyer client.
the Rules of Professional Conduct still reasonably believes necessary:
regulate an attorney’s conduct although 1) to prevent a client from d) Exhaustion of Appellate Reme-
the attorney’s conduct is not directed committing a crime; or dies. When required by a
towards a tribunal. Florida Rule of 2) to prevent a death or tribunal to reveal confidential
Professional Conduct Rule 4-4.1, Truth- substantial bodily harm to information, a lawyer may first
another. exhaust all appellate remedies.
32 • FLORIDA DEFENDER | Spring 2019
e) Inadvertent Disclosure of
Information. A lawyer must
make reasonable efforts to
prevent the inadvertent or
unauthorized disclosure of,
or unauthorized access to,
information relating to the
representation of a client.

f ) Limitation on Amount of
Disclosure. When disclosure

is mandated or permitted, the lawyer may still be liable under the Rules such delivery by defense counsel
lawyer must disclose no more of Professional Conduct if the lawyer as evidence before a jury for
information than is required knowingly made a false statement or purposes of establishing defense
to meet the requirements or misrepresented the known information. counsel’s client’s culpability.10
accomplish the purposes of
this rule. It is important to distinguish not Even if a prosecutor will not make
only the state in which the individual reasonable concessions in advance, a
In Florida specifically, the law is purchasing a firearm, but also the court may preclude a prosecutor from
detailing Florida’s gun background proce- county. State law requires a 3-day informing jurors that incriminating
dure laws have been under heavy scrutiny waiting period for all handgun sales evidence came from counsel.
due to the recent school shootings. The by licensed dealers. However, certain
legislation as it stands today, allows for counties, such as Miami-Dade County, Under Model Rule 1.6, Confiden-
applicants to “lie-and-try” to acquire have extended the state’s 3-day waiting tiality, a lawyer is obligated to preserve
firearms, a legal loophole.1 This legal period to 5 days, including those firearms attorney-client confidences, which sets
loophole allows for a non-eligible person bought at gun shows and flea markets.4 forth the generally recognized rule that
with a criminal background to provide Background checks are only partially a lawyer may not reveal information
false information on the federal applica- required on ‘private’ gun sales as there is relating to the representation of a client
tion form and not pay the price for lying. no state requirement.5 However, under without the client’s informed consent.11
While the FDLE is responsible for vetting Florida law, counties may opt to require In the District of Columbia, a program
buyers, it does so using the standard background checks on gun buyers at gun was created where a third-party attorney
background check form produced by the shows and flea markets.6 or bar counsel member would receive the
federal government. The form asks poten- incriminating evidence, such as a weapon
tial buyers whether they have anything “Under Model Rule 3.4 used in a crime, from another attorney
on their record that would prevent them (Advocate – Fairness to Opposing Party which was given to him by his client,
from owning firearms.2 But according to and Counsel), a lawyer may not ‘unlaw- and turn it over to the authorities, thus
Florida law, the FDLE is not authorized fully obstruct another party’s access to allowing the attorney to comply with
to seek such information. Once the form evidence or unlawfully alter, destroy or their duty and preserving some degree of
has been filled out, the FDLE runs a conceal a document or other material confidentiality with their client.12
background check at the state level. The having potential evidentiary value,’
FDLE then forwards the application to a nor ‘counsel or assist another person to GAMING / GAMBLING
section created by the Federal Bureau of do any such act.’ ”7 If a lawyer obtains When it comes to
Investigation (FBI), the National Instant contraband, instrumentalities or fruits
Criminal Background Check System of a crime, the lawyer is required to gaming/gambling in the
(NICS), to run a search on the federal sua sponte take remedial action.8 For state of Florida, Chapter
level.3 If something on the applicant’s example, if a client during his initial 849 of the Florida Statutes prohibits it,
record appears during the background consultation with his lawyer, provides with few exceptions, including but not
search that they did not disclose on the the firearm used during the crime, limited to Bingo-related activities and
form, the applicant’s application will be the lawyer may not help conceal the gambling on Indian Country property.
denied. This legal loophole however, has evidence from law enforcement, impede “If it looks like ‘gambling,’ then it
allowed applicants to misrepresent infor- law enforcement’s access to it, or alter probably is.”13 A lawyer counseling a
mation on the federal form and essentially the quality of the evidence, otherwise client in this specific area must be very
not suffer the consequences thereafter. offenses such as tampering, aiding and cautious and only deal with his or her
abetting, misprision and conspiracy client in the scope of an attorney-client
If an attorney is filling out the federal could be implicated.9 relationship, as a violation could result
form on behalf of a client, the attorney in criminal sanctions. Going beyond
has a duty under the Model and Florida Negotiations with a prosecutor may the boundaries of the attorney-client
Rules of Professional Conduct to not be bolstered by reference to the ABA relationship and entering into a business
knowingly make a false statement of Criminal Justice Standards: Prosecu- transaction that is potentially in viola-
material fact to a third person, here the tion Function. Under Standard 3-2.8 tion of the law can also have severe
federal and state agencies. Although (Relations With the Courts and Bar), repercussions for the advising attorney.
the client may face criminal charges Rule 4-1.8(a), Business Transactions
amounting to a third-degree felony, a prosecutor should assure defense With or Acquiring Interest Adverse to
which may eventually be dropped or counsel that if counsel finds it Client, states:
dismissed under Florida law due to necessary to deliver physical
the legal loophole described above, the items which may be relevant A lawyer shall not enter into a
to a pending case or investiga- business transaction with a client
tion to the prosecutor, the pros- or knowingly acquire an owner-
ecutor will not offer the fact of
Spring 2019 | FLORIDA DEFENDER •  33

ship, possessory, security, or other the Controlled Substances Act.19 It is 21 U.S.C. §856(d).
pecuniary interest adverse to a important to realize that the Cole Memo In a subsequent memorandum by
client, except a lien granted by is neither a statute nor a regulation and
law to secure a lawyer’s fee or it is not binding on the DOJ. The Cole the DOJ, dated October 28, 2014, the
expenses, unless: Memo instructs the DOJ to look at the Director of the Executive Office for
£ the transaction and terms on following eight enforcement priorities: United States Attorneys indicated that
£ Preventing the distribution of the US Attorneys must assess all of the
which the lawyer acquires the threats present in his or her district,
interest are fair and reason- marijuana to minors; including those in Indian Country, and
able to the client and are £ Preventing revenue from the sale of focus enforcement efforts based on that
fully disclosed and transmitted district-specific assessment.
in writing to the client in a marijuana from going to criminal
manner that can be reasonably enterprises, gangs, and cartels; On January 4, 2018, Attorney
understood by the client; £ Preventing the diversion of marijuana General Sessions issued a memorandum
£ the client is given a reasonable from states where it is legal under state regarding marijuana enforcement. In
opportunity to seek the advice law in some form to other states; the memorandum, Attorney General
of independent counsel in the £ Preventing state-authorized marijuana Sessions stated in pertinent part:
transaction; and activity from being used as a cover
£ the client consents in writing or pretext for the trafficking of other In deciding which marijuana
thereto. illegal drugs or other illegal activity; activities to prosecute under
£ Preventing violence and the use of these laws with the Department’s
In Mathis v. State,14 the appellate firearms in the cultivation and distri- finite resources, prosecutors
court overturned the trial court’s ruling bution of marijuana; should follow the well-estab-
that the appellant was involved in £ Preventing drugged driving and the lished principles that govern all
his client’s “internet cafes” and Bingo exacerbation of other adverse public federal prosecutions…. Given
gaming industry. This case demon- health consequences associated with the Department’s well-estab-
strated “the ethical and professional marijuana use; lished general principles, previous
responsibilities of lawyers and how that £ Preventing the growing of marijuana nationwide guidance specific to
interacts with the criminal justice system on public lands and the attendant marijuana enforcement is unnec-
when a client is seeking advice that can public safety and environmental essary and is rescinded, effective
(have) criminal implications.”15 From dangers posed by marijuana produc- immediately.
the guilty verdict in 2013 to the date of tion on public lands; and
the judgment from the appellate court £ Preventing marijuana possession or use Included in the rescinded memoran-
in 2016, The Florida Bar was required to on federal property.20 dums was the Cole Memorandum as well
suspend Mr. Mathis’ license to practice as the subsequent-related memorandums
law.16 Inevitably, the State of Florida The Cole Memorandum directs dealing with marijuana enforcement.
decided not to retry the case against Mr. federal prosecutors to generally refrain
Mathis and his license to practice was from prosecuting marijuana businesses LEGAL MALPRACTICE RISKS23
reinstated retroactively.17 that are complying with state law. While Most attorney malpractice policies
the Cole Memorandum strongly suggests
MARIJUANA that federal prosecutors should not bring have an exclusion for criminal acts.
In Florida, the use of criminal cases against legal marijuana Under these exclusions, there is no
businesses, it does not create immunity.21 coverage if the lawyer
medical marijuana has participates in a crime.
been legalized, however, It is also important to note that Assume a lawyer fails to
marijuana remains illegal under federal the Cole Memorandum only addresses properly advise a legal
law, even in those states in which medical criminal prosecutions. It does not speak marijuana business client about federal
marijuana has been legalized.18 Currently, to civil monetary penalties, civil forfei- marijuana law and policy, and that client
marijuana is a Schedule I drug and tures, or regulatory sanctions, all of suffers damages. If the client then sues
it remains illegal for anyone to grow, which can occur without anyone being the lawyer for malpractice, the insurance
prescribe, dispense, or distribute it. On charged with a crime.22 For example, carrier may attempt to deny coverage
August 29, 2013, the U.S. Department of even without a criminal case being based on the criminal acts exclusion. If
Justice issued a memorandum known as filed, a person who manages or controls that occurs, the lawyer could be facing
the “Cole Memo,” establishing how the a premises for growing, distributing, a legal malpractice action without any
DOJ should exercise prosecutorial discre- or selling marijuana can be fined up insurance coverage. Lawyers, as well as
tion in enforcing marijuana laws under to $250,000 or twice the gross receipts accountants, doctors, and other profes-
of the business, whichever is greater. sionals could see their malpractice
34 • FLORIDA DEFENDER | Spring 2019 coverage disappear.

DISCIPLINARY ACTION24 $10,000 that the lawyer knows came services to legal marijuana businesses,
A lawyer is unlikely to create personal from a legal marijuana business, the so long as the financial institutions had
lawyer is committing a federal money robust internal compliance programs.
liability if the services rendered are laundering crime, which makes the funds Like the Cole Memorandum, however,
limited to pure legal advice. separately subject to forfeiture. the guidance does not rule out present
A lawyer can safely fulfill or future federal prosecution for financial
the traditional counsel- Most banks will not accept legal institutions that provide services to legal
or’s role of advising the marijuana businesses as clients, so these marijuana businesses. As a result, very
client on the legal consequences of businesses operate extensively in cash. few banks are willing to accept funds that
proposed action. The client, having Federal law requires banks, trades, and derive from legal marijuana businesses.
received this advice, then chooses how businesses (including lawyers) to report
to act. If, despite the lawyers’ advice, any cash transaction, or series of transac- CONFLICTS OF INTEREST
the client elects to contravene federal tions, that exceed $10,000.00. Failing to & ATTORNEY-CLIENT
law, the lawyer should be protected from file these reports could result in monetary PRIVILEGE26
personal liability. fines or prosecution. Federal money
laundering laws also apply to certain It can be a defense to
The lawyer sits in a different position common financial transactions with state or federal criminal
once the legal services go beyond giving legal marijuana businesses. 18 U.S.C. prosecution that a client relied upon the
advice and begin assisting with transac- §1957. For example, merely receiving advice of counsel. This defense requires
tions that help the business operate. At a payment of more than $10,000 from that, before taking action, the client fully
that point, the lawyer arguably becomes a known marijuana business may be a disclose his or her plans to the lawyer
an aider and abettor of an illegal drug federal crime punishable by up to 5 years and thereafter comply with the lawyer’s
enterprise. As discussed above, neither in prison. Engaging in a financial trans- advice. This defense negates specific
bar guidance, including Florida’s, nor action for the purpose of promoting or intent to commit a crime. In order
federal enforcement policies create a furthering a known marijuana business to qualify for an instruction on good
safe harbor against criminal prosecution. may be a federal crime punishable by faith reliance on the advice of counsel,
up to 20 years in prison. 18 U.S.C. a defendant must show that 1) he fully
Noncompliance with Rule 4-1.2(d) §1956(a)(1). disclosed to his attorney all material facts
remains an ethical violation, even though that are relevant to the advice for which
The Florida Bar Board of Governors has The Rules Regulating The Florida he consulted the attorney; and 2) there-
said that it will not impose discipline Bar require certain client funds to be after, he relied in good faith on advice
for providing advice and assistance held in a depository account, but there given by his attorney.27 “Furthermore,
to legal marijuana businesses. Many is no guarantee that any bank will allow the trial court is not free to determine the
Florida lawyers are admitted to practice a Florida firm to deposit marijuana- existence of such a defense as a matter of
in other states or federal jurisdictions derived funds into an operating or trust law. [ ] The threshold burden is extremely
in which they could still be subject to account. The Federal Reserve recently low: ‘[T]he defendant … is entitled to
discipline. For example, the rules of the refused to charter a credit union that have presented instructions relating to a
11th Circuit and each of the federal intended to accept “marijuana money,” theory of defense for which there is any
district courts for Florida discipline signaling that banks have significant foundation in the evidence.’”28
lawyers for violating the Florida Rules regulatory risk if they accept marijuana
of Professional Conduct. None of these money. Aside from the regulatory Clients should understand that
courts has adopted the Board of Gover- risk, the federal government has not the advice-of-counsel defense will
nors’ policy relating to legal marijuana given definitive protection to banks or not apply to some of the federal drug
businesses. As such, a Florida lawyer can other financial institutions that accept statutes because those statutes do
still be disciplined for representing legal funds derived from legal marijuana not require proof of specific criminal
marijuana businesses. businesses. On February 14, 2014, the intent. Rather, a person can be guilty
Department of Justice and the Finan- of some federal drug crimes so long as
ATTORNEY’S FEES25 cial Crimes Enforcement Network they knew they were interacting with a
Funds derived from (FinCEN) issued guidance to financial marijuana business. It is no defense that
institutions about transactions with they believed what they were doing was
a marijuana business are legal marijuana businesses. Here, again, legal based on advice of counsel. Where
subject to forfeiture, so the federal government indicated that it defendants know that their conduct is
long as the recipient of the funds is aware generally would exercise its discretion violative of state law, their wrongful
that they come from an illegal source. not to seek criminal penalties or Bank purpose ab initio, established beyond
The fact that the lawyer provided fair- Secrecy Act monetary penalties against a reasonable doubt, leaves them in no
value services in return for the money financial institutions that provided position to claim that they had no inten-
does not defeat the forfeiture. Moreover,
by accepting a payment of more than Spring 2019 | FLORIDA DEFENDER •  35

tion of violating a federal statute which, interest, penalties, and/or damages GIVING LEGAL OPINIONS
in fact, denounced the unlawful conduct of any kind should they be awarded GENERALLY
as also constituting a federal crime.29 A or entered against the client. The
good faith reliance on the advice of committee referred to Rule 4-1.8(e), The Restatement
counsel is not a defense to a charge which permits an attorney to advance Second, Torts §299A sets
of selling unregistered securities.30 costs and expenses of litigation, so long a liability standard for
Moreover, asserting an advice of counsel as repayment occurs in the event of a legal advice as the absence of application
defense waives the attorney-client privi- recovery. The law firm would also have a of “the skill and knowledge normally
lege. If the lawyer has complied with personal financial interest which would possessed by members of that profession
Rule 4-1.2(d), the lawyer will have told impair the lawyers’ independent profes- or trade in good standing.”33 A Florida
the client that the marijuana business sional judgment in representing the attorney issuing a written opinion to
is illegal under federal law. As such, the client, in violation of Rule 4-1.7(a)(2). a third party is subject to the Rules of
lawyer could be called as a damaging Professional Conduct promulgated by
witness in a federal drug prosecution ALCOHOLIC BEVERAGES the Supreme Court of Florida. Rule
against the client. Communications In order for an estab- 4-2.3, Evaluation for Use by Third
between the defendant and his advising Persons states:
lawyer may be disclosed through testi- lishment to sell alcoholic
mony on the stand to show the attor- beverages, the business a) A lawyer may undertake an
ney’s knowledge and to show that the must apply for a license evaluation of a matter affecting
defendant complied with the “full with the Florida Department of Business a client for the use of someone
disclosure” requirement of the advice and Professional Regulations. Florida other than the client if:
of counsel defense.31 Statute 559.791, False swearing on 1) The lawyer reasonably
application; penalties, states: believes that making the
Generally, confidential communica- evaluation is compatible
tions between a client and lawyer are Any license issued by the Depart- with other aspects of the
privileged. Nevertheless, the crime- ment of Business and Profes- lawyer’s relationship with
fraud exception states that communi- sional Regulation which is issued the client and
cations with a lawyer in furtherance of or renewed in response to an 2) The client consents after
illegal activity are not privileged, even if application upon which the consultation.
the lawyer is not complicit in the crime. person signing under oath or
Therefore, an adverse party (either the affirmation has falsely sworn to Model Rule of Professional Conduct
government or a private litigant) could a material statement, including, Rule 1.6 Confidentiality of Information
assert that all attorney-client communi- but not limited to, the names in pertinent part states:
cations about the operations and trans- and addresses of the owners or
actions of the legal marijuana business managers of the licensee or appli- a) A lawyer shall not reveal infor-
are not privileged and are, therefore, cant, shall be subject to denial mation relating to the repre-
discoverable in litigation. of the application or suspension sentation of a client unless the
or revocation of the license, and client gives informed consent,
OPIOIDS32 the person falsely swearing shall the disclosure is impliedly
Palm Beach County, be subject to any other penalties authorized in order to carry
provided by law. out the representation or the
as well as Florida’s disclosure is permitted by
Attorney General, Pam Rule 4-8.4, Misconduct, states paragraph
Bondi, are currently suing opioid in pertinent part “A lawyer shall not:
manufacturers and distributors for the (a) … (b) … (c) engage in conduct b) …
role they’ve played in the opioid crisis. involving dishonesty, fraud, deceit, c) A lawyer shall make reasonable
Palm Beach County, in an attempt to or misrepresentation.” Furthermore,
avoid costs and fees associated with as previously stated above, in compli- efforts to prevent the inadver-
the lawsuit, drafted an indemnification ance with Rule 4-4.1, a lawyer shall tent or unauthorized disclo-
clause in their fee agreement proposal not make a false statement of material sure of, or unauthorized access
to their counsel. The Florida Bar ethics fact or law to a third person or fail to to, information relating to the
counsel advised in Florida Bar Staff disclose a material fact to a third person representation of a client.
Opinion 38229 (March 26, 2018) when disclosure is necessary to avoid
that the law firm should not sign an assisting a criminal or fraudulent act by It is important to know whom
agreement that agrees to indemnify a client, unless disclosure is prohibited the opinion letter is for and that all
the client-city for attorney’s fees, costs, by rule 4-1.6. of the material therein is truthful. As
mentioned above, Rule 4-4.1, Truthful-
36 • FLORIDA DEFENDER | Spring 2019 ness in Statements to Others states that:

In the course of representing a

client a lawyer shall not know- Washington Post (March 12, 2018), http:// Marijuana Industry Client,” Florida Bar Journal
ingly: wapo.st/2paq529?tid=ss_mail&utm_ (Vol. 90, No. 3, March 2016), www.floridabar.org/
a) make a false statement of term=.7d19a770af00; “The Florida Loophole the-florida-bar-journal/up-in-smoke-or-down-in-
That Lets Thousands of People Banned From flames-a-florida-lawyers-legal-and-ethical-risks-
material fact or law to a third Guns Get Away With Lying on Background in-advising-a-marijuana-industry-client/.
person; or Checks,” The Trace (March 2, 2018), www.
b) fail to disclose a material fact to thetrace.org/2018/03/florida-lie-and-try- 20 “Florida’s Medical Marijuana Industry
a third person when disclosure loophole-background-check-denials/; 790.335 Remains Hazy,” Florida Bar Journal (Vol. 91,
is necessary to avoid assisting Prohibition of Registration of Firearms/Eectronic No. 9, November 2017), www.floridabar.
a criminal or fraudulent act Records, 2018 Florida Statutes, www.leg.state. org/the-florida-bar-journal/floridas-medical-
by a client, unless disclosure fl.us/statutes/index.cfm?App_mode=Display_ marijuana-industry-remains-hazy/.
is prohibited by Rule 1.6. Statute&URL=0700-0799/0790/
Sections/07490.335.html. 21 Supra endnote 19.
A lawyer undertakes to exercise 22 Id.
“ordinary skill and knowledge” when 2 Id. 23 Id.
serving clients, and failure to do so 3 Supra, endnote 1. 24 Id.
can provide grounds for negligent 4 Florida Gun Laws FAQs, http://smkngunns. 25 Id.
malpractice, negligent misrepresenta- tripod.com/id13.html. 26 Id.
tion, among other claims.34 Given 5 Id. 27 U.S. v. Hill, 643 F.3d 807, 851 (11th Cir.
the erosion of common-law privity 6 Id. 2011).
barriers, this negligence standard now 7 Evan A. Jenness, “Possessing Evidence of a 28 U.S. v. Ruiz, 59 F.3d 1151, 1154 (11th Cir.
normally covers legal opinions issued to Client’s Crime: What Should a Lawyer Do?” The 1995) (quoting Perez v. United States, 297 F.2d
non-client third parties. In addition to Champion, Dec. 2010, at 16. 12, 15-16 (5th Cir.1961)).
a negligence claim filed by an opinion 8 Id. at 17. 29 U.S. v. Thaggard, 477 F.2d 626, 632 (5th
recipient, there are a number of other 9 Id. Cir. 1973).
formal sanctions to which an attorney 10 Id. 30 State v. Rivera, 223 P.3d 951, 963 (N.M. App.
could be subject as a result of having 11 “Hand It Over,” ABA Journal (March 2009) (citing to State v. Shafer, 102 N.M. 629,
issued a negligent or otherwise defective 2005), www.abajournal.com/magazine/article/ 633, 698 P.2d 902, 906 (Ct.App.1985)).
opinion.35 These include: disciplinary hand_it_over/. 31 U.S. v. Eisenstein, 731 F.2d 1540, 1545 (11th
action by state authorities under state bar 12 Id. Cir. 1984).
association rules, a common law fraud 13 “Condo Casino! Gambling Law and the 32 “Florida Bar Opinion Complicates Palm
action, “aiding and abetting” claims, Florida Community Association,” Florida Beach County Opiods Lawsuit Plan,” Palm
a civil conspiracy suit, and securities- Bar Journal (Vol. 79, No. 9, October 2005), Beach Post, www.mypalmbeachpost.com/news/
law violations.36 A client’s professional www.floridabar.org/the-florida-bar-journal/ national-govt--politics/florida-bar-opinion-
malpractice claim would begin to accrue condo-casino-gambling-law-and-the-florida- complicates-palm-beach-county-opiods-lawsuit-
when the firm issues their formal opinion community-association/. plan/BFNVJLXBwAdt5BhC760b80/.
letter.37 Despite this laundry list of 14 208 So.3d 158 (Fla. 5th DCA 2016). 33 Chris Rossman, The Legal Ethics of Drafting
potential liability horrors, several factors 15 “Attorney Kelly Mathis is Starting Over,” Legal Opinions: Outside Counsel Perspective.
suggest (and the practitioner literature Jacksonville Daily Record (Feb. 5, 2018), www. 34 Jonathan M. Barnett, “Certification Drag:
tends to agree) that the legal exposure jaxdailyrecord.com/article/attorney-kelly-mathis- The Opinion Puzzle and Other Transactional
typically assumed by an opining firm is is-starting-over. Curiosities,” 33 J. Corp. L. 95, 112 (2007).
relatively low in typical circumstances. 16 Id. 35 Id.
17 Id. 36 Id.
The reason is straightforward: any 18 See 21 U.S.C. 903. 37 Arnold v. KPMG LLP, 334 Fed. Appx. 349
negligence or similar claim against 19 “Up in Smoke or Down in Flames? A Florida (2d Cir. 2009).
an opining firm must overcome the Lawyer’s Legal and Ethical Risks in Advising a 38 Id.
abundant qualifications, assumptions, 39 Id.
and disclaimers that protect the core
opinion formulation.38 Far from empty GEORGE E. TRAGOS, Esq., graduated with his Bachelor’s degree and Law degree from
words, these qualifications are litigation- Florida State University. He is listed in Best Lawyers in America and Super Lawyers. He is a
tested barriers that courts generally past President of FACDL, past Chairman of the Criminal Law Section of The Florida Bar, past
respect, thereby shielding the opining Chairman of the Federal Practice Committee and Code and Rules of Evidence Committee
attorney from potential liability.39 Q of The Florida Bar. He speaks extensively on matters of criminal law and white-collar crime
at state and federal seminars, and has appeared on national news including CNN, Nancy
1 “Sessions Calls on U.S. Attorneys to Grace and Nightline. He has lectured at the Stetson College of Law on the topic of Ethics of a
Aggressively Prosecute Gun Buyers Who Criminal Lawyer. He is managing partnerof the Law Firm ofTragos, Sartes &Tragos, PLLC in
Lie on Background Checks,” The Clearwater, and previously served as Chief of the Criminal Division forUnited StatesAttorney’s
Office Middle District of Florida and Felony Division Chief forthe StateAttorney’s Office of the
Sixth Judicial Circuit. He was formerly LeadTrialAttorney forthe President’s Organized Crime
Drug Enforcement Task Force and was Commissioner to the West German Government.

J.D. PATEL is currently a third-year law student at Stetson University College of Law, and he is
in the process of earning a Master’s in Business Administration. In 2015, he graduated from
the University of Florida with a Bachelor’s degree in Accounting. For a little over a year, he
worked as a law clerk at the Law Offices of Tragos, Sartes & Tragos, where he was exposed
to many areas of the law, including criminal defense, personal injury, and employment law.
During the summer of 2018, he is working at the State Attorney’s Office in the 6th Judicial
Circuit as a Certified Legal Intern.

Spring 2019 | FLORIDA DEFENDER •  37

DEATH IS DIFFERENT...

UPDATES ON CASES, LAW,
RULES & SO FORTH

by

Peter N.
Mills

This case & law update is intended to upon the relationship between the victim Margaret Allen,
serve as a research aid in highlighting and the defendant. Just as a child under SC17-1623 (Fla. January 7, 2019).
issues primarily related to the death the age of 12 can be murdered by a
penalty that occurred during direct complete stranger, someone who is over Ms. Allen was convicted of the
appeal and some other matters. Due to the age of 12 can be murdered by an kidnapping and first-degree murder
space limitations extensive summation individual who stands in a position of of Wenda Wright. Ms. Wright was
has been used and full citation limited. familial or custodial authority over the tortured. Ms. Allen’s jury unanimously
Many of the more recent opinions have victim. Accordingly, these aggravators are recommended a death sentence.
not been released for publication in not simply restatements of each other.”
the permanent law reports, and until INEFFECTIVE ASSISTANCE OF
released, are subject to revision or CONSTITUTIONALITY OF THE
withdrawal. I encourage you to fully COUNSEL: Relief denied. Ms. Allen
read the cases, statutes, and rules to gain DEATH PENALTY: Relief denied. Mr. argues that trial counsel was ineffective
a better understanding of them. If you Damas contended that the death penalty for failing to investigate and present
have an opinion or suggestion about the violates the Eighth Amendment to the certain mitigating evidence about her
column, let me know. I may be reached United States Constitution because it traumatic background and mental health
at [email protected]. is inherently cruel and unusual. The during the penalty phase. Specifically,
challenge was procedurally barred she claimed that additional mitigation
Mesac Damas, because it was not raised before the trial evidence should have been uncovered
No. SC17-2062 (Dec. 28, 2018). court. However, he would have lost on and presented, including the existence
the merits too. In 1976, a majority of the of post-traumatic stress disorder (PTSD)
Mr. Damas confessed repeatedly United States Supreme Court concluded and extensive sexual and physical abuse.
to killing his wife and five children. the death penalty does not facially The FSC concluded that the absence of
Mr. Damas tried to represent himself violate the Eighth Amendment. Gregg this mitigating evidence did not satisfy
but that request was denied by the v. Georgia, 428 U.S. 153, 169 (1976). Strickland’s requirement of prejudice.
trial court and upheld by the Florida “…Death as a punishment for murder is Had the additional mitigation evidence
Supreme Court. not without justification and thus is not been introduced as Allen claimed, there
unconstitutionally severe.” McCleskey is no reasonable probability that the
DOUBLING AGGRAVATORS: v. Kemp, 481 U.S. 279, 302 (1987) outcome would have been different.
Relief denied. Mr. Damas, on appeal, (quoting Gregg, 428 U.S. at 186-87). Allen overemphasized the value of
challenged the trial court’s finding of evidentiary hearing testimony presented
both the under the age of 12 and the PROPORTIONALITY: Relief denied. by Allen’s family members and her
familial/custodial authority aggravating “A review of this Court’s precedent mental health expert. The testimony
factors. This claim was not raised by Mr. reflects that Damas’s death sentences presented regarding Allen’s background
Damas in the trial court and, therefore, are proportionate to other capital cases was cumulative to the mitigation
it was unpreserved and procedurally where the defendant murdered multiple already presented at trial. The Court
barred on appeal. However, he would individuals, including the defendant’s has “repeatedly held that counsel is not
have lost on the merits too. Improper own children or children with whom ineffective for failing to present cumula-
doubling occurs when both aggrava- the defendant had a custodial relation- tive evidence.” Further, even if given
tors rely on the same essential feature ship… Moreover, no mitigating factor more weight, the mitigation would not
or aspect of the crime. “The under the in this case found to be established was outweigh the strong aggravators.
age of 12 aggravating factor focuses, by given great weight, substantial weight, or
its own terms, on the age of the victim. significant weight. The trial court only Ms. Allen claimed that trial counsel
Conversely, the familial/custodial gave one factor moderate weight. Each should have objected, requested a
authority aggravating factor focuses of the murders in this case is among the curative instruction, and moved for
most aggravated and least mitigated.” a mistrial when the prosecutor stated
38 • FLORIDA DEFENDER | Spring 2019 during cross-examination of Dr. Gebel

that Ms. Allen was involved in drugs. solely due to hearing this question about guilt and penalty phases of her trial for
“However, nothing in the record under- Allen’s lack of remorse.” failing to call his own forensic expert.
mines confidence in the outcome of Relief was denied because everything the
the penalty phase, but rather supports Ms. Allen also argued that the Ms. Allen’s PCR expert testified to was
the postconviction court’s finding that prosecutor made an improper Golden brought out on cross-examination of the
there is no prejudice…. The prosecutor’s Rule argument during closing argument. State’s expert.
comments about Allen’s time in prison There was no objection. “Allen has failed
and her convictions for drug sales were to demonstrate prejudice. Hearing these Ms. Allen argued that counsel was
isolated, and did not approach the same comments during closing argument ineffective for failing to challenge juror
level of impropriety as comments in would not have caused the jurors to Carll for cause or to strike her peremp-
other cases where this Court has granted weigh the aggravation or mitigation torily because of the juror’s strong
relief… Further, the testimony that Allen differently. The significant amount of predisposition for recommending the
was involved in a lifestyle of drugs led the evidence supporting the HAC aggra- death penalty. Ms. Allen has failed to
trial court to find that such involvement vator in this case, such as Quintin’s show that juror Carll was actually biased.
was a nonstatutory mitigator.” testimony that Allen kidnapped and “While juror Carll did express positive
tortured Wright and the medical forensic sentiment toward the death penalty and
Ms. Allen claimed that trial counsel evidence of contusions and ligatures on expressly outlined several circumstances
should have objected and moved for a Wright’s body, shows that there is no in which she would recommend it, she
mistrial when the prosecutor improperly reasonable probability that hearing the confirmed upon follow-up questioning
asked Dr. Wu questions regarding Ms. comments in question affected the jury’s that she was flexible, would “absolutely”
Allen’s future dangerousness in prison. sentencing recommendation.” listen to aggravation and mitigation, and
The record shows that the State violated would listen to mental health evidence.
the court’s order not to make arguments Ms. Allen claimed that trial counsel Juror Carll also stated that there were
about Allen’s future dangerousness by should have objected when the prose- certain circumstances where she would
asking two questions about Ms. Allen’s cutor stated that “in certain cases” “the not recommend the death penalty, such
future threat to prison guards. The FSC law calls for” a death penalty recom- as if someone was “a party of someone’s
found no prejudice and therefore did mendation, because it improperly death.” As in Carratelli, the record reveals
not consider whether the was deficient gained sympathy for the prosecutor and that juror Carll assured the court that she
performance for not objecting. misstated the law. “During penalty phase was willing to listen to the evidence, be
closing arguments, the prosecutor stated: fair, and follow the law.”
Ms. Allen claimed that trial counsel [T]here are cases where the recommen-
should have objected when the prose- dation for the death penalty is warranted. HURST: Relief denied. A “…unani-
cutor asked Dr. Wu if he saw Ms. Allen This is that case…. It is not going to be mous recommendation alone is insuf-
display signs of remorse following the an easy decision. It’s not easy to stand ficient to determine harmless error,
murder. Ms. Allen “failed to demon- up here and ask a jury to recommend a and (the Court) must also consider
strate prejudice. Even if this question death penalty. But in certain cases it is other factors such as the jury instruc-
were not proper cross-examination in what the law calls for. It’s what justice tions, the aggravators and mitigators,
light of Dr. Wu’s testimony on direct, calls for. Allen cannot show the prosecu- and the facts of the case.” However,
given the overwhelming evidence of tor’s comments prejudiced her. The jury “a jury’s unanimous recommendation
guilt presented, as well as the aggravating instructions correctly informed Allen’s of a death sentence in capital cases
circumstances found by the court, there jury of the law relating to the weighing ‘begins a foundation for (the Court) to
is not a reasonable probability that the of aggravators and mitigators.” conclude beyond a reasonable doubt
jurors would have changed their minds that a rational jury would have unani-
regarding the balancing of the aggra- Ms. Allen argued the postconviction mously found that there were sufficient
vating and mitigating circumstances court erred in denying the claim that trial aggravators to outweigh the mitigating
counsel was ineffective during both the
Spring 2019 | FLORIDA DEFENDER •  39

factors.’” “Although Allen’s jury was advised the jury, stated the law appli- tions, and concluded that Wright does
instructed that it was “neither compelled cable at the time, and did not diminish not have adaptive deficits in the concep-
or required to recommend death,” the jury’s role. Because Allen’s jury was tual domain. Instead of rejecting the
and was informed that unanimous properly instructed based on the existing lower court’s findings to make our own,
recommendations were not required, it law, the jury instructions given at her we accepted the findings and recited the
nevertheless unanimously recommended trial do not cause her death sentence to competent, substantial evidence that
death. The jurors also heard standard violate the Eighth Amendment.” supported them.” The Court in Moore
jury instructions informing them that used a rather unscientific test based in
they needed to determine whether suffi- Tavares Wright, part on The Grapes of Wrath from a case
cient aggravators existed and whether 256 So.3d 766 (Fla. 2018). known as Ex parte Briseno.
any aggravation outweighed the mitiga-
tion before recommending a sentence of The FSC stuck with its original Wright’s complaints about the
death…. Although the jurors were not opinion after the U.S. Supreme Court FSC focused on their stressing reliance
informed that the finding that sufficient granted a GVR in this intellectual on strengths versus weaknesses in
aggravators existed and outweighed the disability case. The Court focused on adaptive functioning. “[I]t is difficult
mitigation must be unanimous, the three issues: “1) the nature of the remand to conclude where the Supreme Court
jury did return a unanimous verdict order; 2) the intelligence prong of the drew the line for reliance on prison
of death….These instructions support ID test; and 3) the adaptive functioning conduct as our only guidance is a single
the conclusion that the jury unani- prong of the ID test.” sentence “caution[ing] against reliance
mously made the requisite factual on adaptive strengths” developed in
findings to impose death before it recom- “The remand was in the form of a prison.” The Court highlighted that
mended death unanimously. The Hurst Supreme Court summary reconsidera- it also relied on lay witnesses who
error in this case is therefore harmless, as tion order, which is colloquially known knew Wright throughout his life,
it is clear beyond a reasonable doubt that as a “GVR” (granted, vacated, and who testified about his work history
the jury’s failure to find the facts neces- remanded).” “A GVR is a “mode of and ability to use the city bus system.
sary to impose the death penalty did not summary disposition, though not neces- Ultimately, the Court ruled that “[a]ll
contribute to the death sentence.” sarily on the merits, [by] an order that of that evidence cuts against a finding
grants certiorari, vacates the judgment of adaptive deficits in the conceptual
CALDWELL: Relief denied. “In below, and remands the case to the lower domain.”
Caldwell, the Supreme Court held that court for reconsideration in light of an
the death sentence resulting from the intervening Supreme Court ruling.” A PENDING IN THE
jury’s unanimous recommendation GVR is neither a merits determination nor U.S. SUPREME COURT
of death violated the Eighth Amend- precedential case law. In dealing with the
ment’s standard of reliability required Moore GVRs some courts up held their Madison v. Alabama: From the
in capital cases because the jury instruc- prior rulings and some court remanded to summary of the argument in Mr.
tions impermissibly diminished the trial courts for further findings. Madison’s reply brief: Experts agree that
jurors’ sense of responsibility for a Vernon Madison now sits on Alabama’s
death sentence by ‘[leading them] to Wright argued that the FSC erred death row unable to fully orient to time
believe that the responsibility for deter- by affirming the postconviction court’s and place. Brain trauma as a result of
mining the appropriateness of the finding that he failed to satisfy his burden multiple strokes has led to decreasing
defendant’s death rest[ed] elsewhere.’” of proof on the intellectual functioning cognitive capabilities and reduced his
Later the U.S. Supreme Court held that, prong of the ID test. “However, Moore intellectual functioning to the borderline
“to establish a Caldwell error, a defendant does not substantially change the law range. It is undisputed that he suffers
must show that the jury instructions with regard to consideration of intel- from varying degrees of dis-orientation
improperly described the jury’s role ligence or IQ for the purposes of an ID and confusion about the world around
assigned by local law.” Ms. Allen failed to determination…(and since he had an him. He frequently urinates on himself
make that showing. The Florida Supreme 82 IQ score), Wright’s claim fails again”
Court has held that because it did not The bar for IQ is 70 with a standard error
violate Caldwell to refer to the jury’s role of measurement that takes the score to a
as advisory prior to the Hurst decisions, range of 65‑75.
“a Caldwell claim … cannot [now] be
used to retroactively invalidate the jury Wright argued that the FSC erred
instructions that wereproper at the time in affirming the postconviction court’s
under Florida law.” At the time of Allen’s finding that he failed to prove deficits in
trial, the jury instructions correctly his adaptive functioning. “The postcon-
viction court relied on contemporary
expert medical testimony, weighed the
evidence, made credibility determina-

40 • FLORIDA DEFENDER | Spring 2019

and complains that no one will let him The Potentially Fatal Flaws
out to use the bathroom when there is in the Implementation of
a toilet inches away from his bed. His Florida’s Firearm Laws
memory is so impaired that he can
no longer recite the alphabet or do a by or if they plead guilty or no contest to
simple math problem. He is unable to committing the act, regardless of whether
remember that his mother and brother Geoffrey P. adjudication was withheld. This would
are deceased and cannot identify the Golub logically mean that a person under the
prison warden or officers who have age of 24 who has committed a quali-
been guarding him for years. Multiple Whichever side a person may fall fying delinquent act, should not be able
strokes and brain in-juries have left Mr. on Florida’s Firearm Laws, all to purchase a firearm at a gun store and
Madison nearly blind and he can no sides can agree that the law as written certainly should not be able to obtain a
longer read or write; he often has diffi- should be followed. Unfortunately, this Concealed Firearm License. However,
culty speaking and his tangential and is not always the case, because a person’s this is not always the case.
repetitive speech makes him difficult to Juvenile criminal record is most likely
understand. By every available measure, not part of the criminal background When any person purchases a firearm
Mr. Madison’s diagnosed dementia has check conducted by the Florida Depart- from a licensed Firearm Dealer, they have
compromised his cognitive functioning ment of Law Enforcement (FDLE) or to fill out a Firearm Transaction form,
and rendered him unable to rationally by the Florida Department of Agricul- otherwise known as an E-Form 4473.6
understand his current circumstances ture and Consumer Services (FDAC), This form is issued by ATF and was last
and pending execution. because the forms that must be filled revised in October 2016. The form has
out to purchase a firearm and to obtain a set of questions a person must answer.
Questions: 1) Whether, consis- a Concealed Firearm License are devoid One of these questions is whether the
tent with the Eighth Amendment, of any questions regarding a person’s person has ever been convicted of a
and the Supreme Court’s decisions Juvenile criminal record.1 The forms are felony. A conviction for a felony Juvenile
in Ford v. Wainwright and Panetti most likely devoid of those questions delinquent act is not considered a felony
v. Quarterman, a state may execute because the Florida Statutes that apply to conviction under Florida Law.7 There-
a prisoner whose mental disability criminal background checks conducted fore, a person answering, ‘no’ to that
leaves him with no memory of his by FDLE and FDAC never mention the question who has only been convicted
commission of the capital offense; words “Juvenile” or “Delinquent,” or even of committing a delinquent act that
and 2) whether evolving standards the word, “Minor.”2 And it is usually only would be a felony if committed by an
of decency and the Eighth Amend- when statutes specifically refer to Juvenile adult, would not be lying or falsifying
ment’s prohibition of cruel and Criminal Records that they are used in the the document. In fact, even if a person
unusual punishment bar the execu- same manner as Adult criminal records.3 were asked if they had ever been arrested
tion of a prisoner whose competency for a felony and they had only been taken
has been compromised by vascular Florida Statute, 790.23 sections (1) into custody for committing a delinquent
dementia and multiple strokes causing (b) and (d) states that it is unlawful and felony act, they could truthfully answer,
severe cognitive dysfunction and a a second-degree felony punishable by “no,” because when a juvenile is taken
degenerative medical condition that 15 years in prison for any person under into custody by the police it is not usually
prevents him from remembering the the age of 24 to possess a firearm, if they considered an arrest.8 In fact, for the
crime for which he was convicted or have been found in the courts of this most part committing a Juvenile felony
understanding the circumstances of State or any other State, Territory or or misdemeanor delinquent act doesn’t
his scheduled execution. Country to have committed a delinquent even make a person a criminal.9
act that would be a felony if committed
Oral argument was held in by an adult.4 A person does not have to But that’s not the problem. The
October. Q be convicted of the delinquent act to problem is nowhere in the E-Form 4473
violate this section.5 A person commits a is the person asked:
PETE MILLS is an Assistant Public delinquent act if they are found guilty of
Defender in the 10th Judicial Circuit, committing the act after a non-jury trial, “Are you under the age of 24, and
Bartow, in the trial unit. He is qualified if the answer is ‘yes,’ have you ever
to handle capital trials. In addition to his in the State of Florida or any other
work as an APD, Pete has worked at the State, Country or Territory, pled
Office of the Capital Collateral Represen- guilty, or no contest or been found
tative (CCR) and has handled personal
injury cases. He is a 1993 graduate from Spring 2019 | FLORIDA DEFENDER •  41
the Valparaiso University School of Law.
He may be reached at 863 / 534-4327.

guilty by a Judge, of committing sections of Florida statute, 790.23 that Now what’s even scarier, is that same
a delinquent act that would be a prohibit a person under the age of 24 person in the example above can also
felony if committed by an adult, from possessing a firearm if they have obtain a License to carry a concealed
regardless of whether adjudica- committed a qualifying delinquent act. firearm because nowhere on Florida’s
tion was withheld.” And this is why FDLE most likely does application for a Concealed Weapon
not review a person’s juvenile record or Firearm License, provided by FDAC
Once the form is completed a phone prior to approving the sale. as revised in 7/16, is a person asked the
call is placed by the dealer to FDLE. question about being under the age of
The Department runs a Criminal record Without that review, a person under 24 and having committed a delinquent
background check pursuant to Florida the age of 24 who is otherwise not act.12
Statute, 790.065 Sale and Delivery of allowed to possess a firearm has just
Firearms, and either approves the deal or bought one, and no one is the wiser. In In fact, Florida Statute, 790.06
rejects it.10 As of October 2018, a person fact, the person under the age of 24 may section (2)(d) License to carry concealed
cannot purchase a firearm until three- not even know they have done anything weapon or firearm, the very statute that
days have passed or the background wrong, since nowhere on the form were the application is based upon, states that
check is completed, whichever is later.11 they ever asked if they had committed a an applicant “(d) Is not eligible to possess
delinquent act that would be a felony if a firearm pursuant to s. 790.23 by virtue
Florida Statute 790.65(2)(a) states committed by an adult. of having been convicted of a felony.”
in part that, Florida Statute 790.23(1) sections (a)(c)
Florida Statute 790.065(2)(a)(1) and (e) refer to a person not being able to
“Upon receipt of a request for a should be amended to read: possess a firearm if they are a convicted
criminal history record check, the felon. However, Florida Statute, 790.06
Department of Law Enforcement “upon receipt of a request for a mentions nothing about a person being
shall, during the licensee’s call criminal history record check, ineligible to obtain a license for commit-
or by return call, forthwith: (a) the Department of Law Enforce- ting a delinquent act pursuant to Florida
Review any records available to ment shall, during the licensee’s Statute, 790.23 sections (1)(b) and
determine if the potential buyer or call or by return call, forthwith: (d). And this is why when a criminal
transferee: 1. Has been convicted (a) Review any records available background check is conducted by
of a felony and is prohibited from to determine if the potential FDAC a person’s juvenile criminal record
receipt or possession of a firearm buyer or transferee: 1.Has been is most likely not included in that check.
pursuant to s. 790.23.” convicted of a felony or is under
the age of 24 and has committed Florida Statute 790.06 section (2)
Florida Statute, 790.065(2)(a) a delinquent act that would be a (d) should be amended to read that an
only refers to the sections of Florida felony if committed by an adult, applicant,
Statute, 790.23 that prohibit a convicted and is prohibited from receipt or
felon from purchasing or possessing a possession of a firearm pursuant “(d) Is not eligible to possess a
firearm. It makes no mention of the to s. 790.23. firearm pursuant to s. 790.23 by
virtue of having been convicted of

42 • FLORIDA DEFENDER | Spring 2019

a felony or by virtue of being under tory, pled guilty, or no contest or (e) Found guilty of an offense that is
the age of 24 and having committed been found guilty by a Judge, of a felony in another state, territory,
a delinquent act that would be a committing a delinquent act that or country and which was punish-
felony if committed by an adult.” would be a felony if committed able by imprisonment for a term
by an adult, regardless of whether exceeding 1 year.
The application for a Concealed adjudication was withheld,”
Firearm License does require a person (2) This section shall not apply to a person:
to swear that they have been furnished and if Florida Statutes, 790.06 and (a) Convicted of a felony whose civil
a copy of chapter 720, Florida Statutes 790.065 were amended as previously rights and firearm authority have
relating to firearms and weapons, and stated, then juvenile background checks been restored.
that they are knowledgeable of the would hopefully be conducted, and this (b) Whose criminal history record
provisions therein. But the percentage problem would be solved. Of course for has been expunged pursuant to s.
of people who actually read all of those this statute to be properly enforced, a 943.0515(1)(b).
provisions, is probably about the same background check would also have to
percentage of people who actually read include every State’s juvenile records (3) Except as otherwise provided in subsection
the “terms and conditions” for something and every Territory and every Country’s (4), any person who violates this section commits
they are buying or applying for prior to juvenile records, but perhaps that is a felony of the second degree, punishable as
clicking that they have read them all in asking too much. Q provided in s. 775.082, s. 775.083, or s. 775.084.
the allotted box. The people who have
read all of the provisions and actually 1 See ATF Form 4473 at www.atf.gov; and see (4) Notwithstanding the provisions of s.
understood them all, would be familiar FDAC Concealed Weapon for Firearm License 874.04, if the offense described in subsection
with Florida Statute, 790.23 regarding Application Form at www.freshfromflorida.com/ (1) has been committed by a person who has
people under the age of 24 who have Divisions-Offices/Licensing/Concealed-Weapon- previously qualified or currently qualifies for the
committed a qualifying delinquent act License. penalty enhancements provided for in s. 874.04,
not being allowed to possess a firearm. the offense is a felony of the first degree, punish-
2 Florida Statute, 790.065, Sale and Delivery able by a term of years not exceeding life or as
But why should anyone have to be of Firearms; Florida Statute, 790.06, License to provided in s. 775.082, s. 775.083, or s. 775.084.
familiar with those provisions, when it carry concealed weapon or firearm. History.—ss. 1, 2, 3, ch. 29766, 1955; s. 1, ch.
is obvious that the people who work for 63-31; s. 9, ch. 69-306; s. 754, ch. 71-136; s. 1,
ATF, The Florida Department of Law 3 State v. J.M., 824 So.2d 105(Fla. 2002)(“We ch. 71-318; s. 169, ch. 71-355; s. 2, ch. 76-165;
Enforcement and the Florida Depart- also note that in other instances when the Legis- s. 6, ch. 93-416; s. 51, ch. 98-280; s. 39, ch.
ment of Agriculture and Consumer lature intended adjudications of delinquency 99-284; s. 2, ch. 2004-286; s. 2, ch. 2008-238;
Services are most likely not familiar to operate in the same manner as a criminal s. 1, ch. 2016-42.
with those provisions, and the very conviction it has expressly stated so. Id. at 111);
statute that governs who is not eligible M.B. v. State, 159 So.3d 960 (Fla. 5th DCA 5 State v. Menutu, 912 So.2d 603(Fla. 2nd
to receive a license makes no mention 2015)(A juvenile adjudication of delinquency DCA 2005)(Explaining why a conviction is not
of Florida Statute, 790.23 sections (1) will not give rise to same consequences as adult necessary.); On the FDLE website’s “Frequently
(b) and (d).13 The irony in all of this, conviction unless Legislature has expressly stated asked questions: Requirements to purchase a
is that a person could be prosecuted by otherwise). firearm,” it mistakenly states that only an adjudi-
the State of Florida for violating Florida cation or conviction of delinquency will prevent
statutes, 720.23 sections (1)(b) or (d) 4 Florida Statute, 790.23 Felons and delin- a person from purchasing a firearm:
even though the same State of Florida quents; possession of firearms, ammunition, or
allowed them to not only purchase a electric weapons or devices unlawful.— “In addition to federal law, Florida law
firearm, but even gave them a license to prohibits persons [from purchasing a firearm]
conceal it. The sadder irony is a young (1) It is unlawful for any person to own or who:
person not otherwise qualified to possess to have in his or her care, custody, possession,
a firearm could commit a mass shooting or control any firearm, ammunition, or electric £ Are adjudicated delinquent of a crime
with a firearm that he is licensed to carry weapon or device, or to carry a concealed weapon, that would have been a felony if com-
concealed. including a tear gas gun or chemical weapon or mitted by an adult until the age of 24 or
device, if that person has been: until record is expunged.
If the two applications were once
gain revised to add the question, (a) Convicted of a felony in the courts £ Receive “Adjudication Withheld” on
of this state; any felony or on a misdemeanor crime
“Are you under the age of 24, of domestic violence and three years has
and if the answer is ‘yes,’ have (b) Found, in the courts of this state, not yet lapsed since the completion of
you ever in the State of Florida or to have committed a delinquent sentencing provisions.
any other State, Country or Terri- act that would be a felony if
committed by an adult and such £ Were recently arrested for a potentially
person is under 24 years of age; disqualifying crime which has not been
dismissed or disposed of in court.”
(c) Convicted of or found to have
committed a crime against the See: www.fdle.state.fl.us/FPP/FAQs2.aspx
United States which is designated 6 Id. at endnote 1.
as a felony; 7 Snyder v. State, 650 So.2d 1024(Fla. 2nd DCA
1995)(“…an adjudication in a juvenile delin-
(d) Found to have committed a quency proceeding cannot be used to support
delinquent act in another state, a charge of felon in possession of a firearm.” Id.
territory, or country that would at 225); Florida Rule of evidence, 90.610(1)(b)
be a felony if committed by an (A Felony Juvenile Conviction of Delinquency
adult and which was punish- cannot be used for impeachment purposes to
able by imprisonment for a term attack a person’s credibility.); Rivera v. State, 792
exceeding 1 year and such person So.2d 564(Fla. 1st DCA 2001)(Agreeing with
is under 24 years of age; or Florida Statute, 90.610(1)(b); State v. J.M., supra
(A good summary of when a Felony or Misde-
meanor Juvenile Conviction of Delinquency can
and cannot be used as or considered the same as
a Felony Criminal conviction or considered for
other purposes.)
8 Florida Statute, 985.101(4): Taking a child
into custody is not an arrest except for the purpose

Spring 2019 | FLORIDA DEFENDER •  43

of determining whether the taking into custody Administrative Searches
or the obtaining of any evidence in conjunction
therewith is lawful. Pursuant to Fla. Stat. 812.055

9 State v. J.M., supra (“As this Court has recog- by vehicle or vessel salvage yard; licensed
nized, the juvenile and criminal justice systems are motor vehicle or vessel dealer’s lot; motor
separate and distinct and serve different purposes: Arthur M. vehicle, vessel, or outboard repair shop;
A child offender, even after being adjudicated Miksis parking lot; public garage; towing and
delinquent, is never held to be a criminal, even if storage facility; or other establishment
the act would be considered a crime if committed Most Floridians believe that they dealing with salvaged motor vehicle,
by an adult. The key difference in approach lies are protected from warrantless vessel, or outboard parts.”3
in the juvenile justice system’s ultimate aims. searches and seizures by the Fourth
Juveniles are considered to be rehabilitatable. Amendment to the U.S. Constitution, The language of the statute is
They do not need punishment. Their need lies and Article I, Section 12 of the Florida remarkable because it bestows upon law
in the area of treatment.” Id. at 114.) Constitution. Generally, that is true, and enforcement the right to inspect these
especially in the context of someone’s places. Typically, a Fourth Amendment
10 How Do I Purchase a Firearm in the State home, apartment, or hotel room. What analysis by the Court determines if
of Florida?, www.fdle.state.fl.us/FPP/Frequently- about in the context of commercial law enforcement has probable cause of
Asked-Questions. business property? Do they enjoy the criminal activity to justify issuance of a
same level of privacy from intrusion warrant for search and seizure of contra-
Choose a firearm for purchase at a licensed by state actors? Not always. This article band. This analysis is absent in the Fla.
gun dealer. will discuss how Florida Statute 812.055 Stat. 812.055 scenario. Law enforcement
impacts business owners and their has the right to inspect these businesses
Fill out the BATF form 4473 provided by the susceptibility to inspections and searches without a warrant, a showing of probable
dealer for a background check. (For more infor- by law enforcement. cause, or even reasonable suspicion of
mation about this form, please visit the Bureau of criminal activity. There is no exigency
Alcohol, Tobacco and Firearms (ATF)). “The right of the people to be secure required either. How did this come to be?
in their persons, houses, papers, and
You will be required to provide a valid form of effects, against unreasonable searches It was determined that administrative
government issued identification as well as any and seizures, shall not be violated, and no inspections do not offend the Fourth
non-resident forms of identification. (Example: warrants shall issue, but upon probable Amendment if they are necessary in order
Driver License/Passport and/or Green Card) cause, supported by oath or affirmation, to closely monitor regulated businesses for
and particularly describing the place to the purpose of learning whether a partic-
The dealer will then contact the Firearm be searched, and the persons or things ular business is conforming to the statute
Purchase Program at FDLE. to be seized,…”1 “…the communica- regulating that business.4 Inspections are
tion to be intercepted, and the nature constitutional if the state has a substan-
An operator from the Firearm Purchase of evidence to be obtained. This right tial interest in regulating the particular
Program will query your identifiers (name, race/ shall be construed in conformity with business, the inspection is necessary to
sex, date of birth, etc.) as written on the BATF the Fourth Amendment to the United further the regulatory scheme, and the
form 4473 and determines your eligibility to States Constitution, as interpreted by the statute’s inspection program provides a
purchase a firearm in the State of Florida. United States Supreme Court. Articles or constitutionally adequate substitute for
information obtained in violation of this a warrant.5 The Florida Supreme Court
The dealer is then provided with a transaction right shall not be admissible in evidence determined that Fla. Stat. 812.055 was
identification number (Control Number) and a if such articles or information would constitutional and satisfied those require-
decision on the transaction. be inadmissible under decisions of the ments when it decided Moore v. Florida,
United States Supreme Court construing 442 So.2d 215 (Fla. 1983).
11 Florida Statute, 790.0655(1)(a). the Fourth Amendment to the United
12 Id. at Endnote 1. States Constitution.”2 In Moore, a state trooper and a
13 As noted in endnote 5 above, the FDLE Gainesville police officer entered Moore’s
website does at least acknowledge that a person “Any law enforcement officer shall automotive repair shop, without a
under 24 who has been adjudicated of a delin- have the right to inspect any junkyard; warrant, to check a truck that they
quent act that would be a felony if charged as scrap metal processing plant; motor suspected had an altered identification
an adult would disqualify that person from number. They located the truck on
purchasing a firearm. However, the website Moore’s property, ascertained that the
mistakenly states that only an adjudication of a identification number had been changed,
delinquent act would disqualify a person from
purchasing a firearm, when in fact as previously
mentioned above a withhold would have the
same effect.

GEOFFREY P. GOLUB is a sole practitioner
in Melbourne, Florida. He was admitted to
practice in November 1993 after earning
hisA.B. atWashington University in St. Louis
and a J.D. from University of Miami School
of Law. He spent two and a half years as
an Assistant Public Defender with the 18th
Judicial Circuit in Brevard County. He is a
Florida Board certified criminal trial lawyer.

W W W. FAC D L . O RG

44 • FLORIDA DEFENDER | Spring 2019

seized the truck, and arrested Moore. the premises without a warrant for the 812.055 is not a loophole to conduct
Moore filed a motion suppress, alleging purpose of an administrative inspection. warrantless criminal investigations.
section 812.055 to be unconstitutional. Exceeding the scope can convert the valid
The trial court agreed and granted the inspection into an illegal criminal inves- That being the case, even if law
motion. The district court reversed, and tigation for which a search warrant was enforcement suspects criminal activity at
the Supreme Court of Florida affirmed required. For example, did law enforce- the commercial property, that suspicion
the decision, noting that section 812.055 ment search only through the business will not invalidate a proper administra-
is limited to business establishments that records, or did they also search through tive inspection. Law enforcement has
easily could be involved in the theft and the personal belongings of employees the statutory right to enter the premises
unlawful disposition of vehicles. on site? Were any locked doors forcibly to inspect the business records, titles,
opened? Were any of the employees registrations, and vehicles. As long as
Additionally, warrantless adminis- detained during the search? Did law the inspection remains within the scope
trative searches of commercial property enforcement draw their firearms while permitted by statute then there is no
are not automatically unreasonable entering or searching the premises? What violation. The U.S. Supreme Court has
because the “interest of the owner of type of law enforcement conducted the made it quite clear that an administrative
commercial property is not one in search? The use of a SWAT team sends search is not rendered invalid because
being free from any inspections.”6 a different signal than the use of a local it is accompanied by some suspicion of
Many business owners are already police officer in standard uniform. wrongdoing.9
subject to some degree of state inspec-
tion in order to confirm compliance In Bruce v. Beary, 498 F.3d 1232 In conclusion, an administrative
with statutory rules and regulations. (11th Cir. 2007), the Orange County search pursuant to Fla. Stat. 812.055 is
However, searches according to Fla. Sheriff ’s Department acted upon a a constitutional warrantless search of the
Stat. 812.055 must not allow unbridled citizen complaint that an automobile property. Business owners are considered
discretion and the searches must be of purchased from Bruce had mismatched to have received proper notice of this
a pervasively regulated business so that vehicle identification numbers. A group possibility by the plain language and
the business owner is aware that the of approximately twenty officers were meaning of the statute. The time, place,
property is subject to inspection.7 The led to Bruce’s place of business, Whole- and scope of the search are narrowly
clear and plain language of Fla. Stat. sale Auto Advantage, Inc. They arrived tailored to balance the state’s regulatory
812.055, as referenced above, helps to in unmarked trucks and SUV’s, and interests and the citizens’ privacy inter-
put business owners on notice that they surrounded the entire premises, blocking ests. When law enforcement exceeds the
are subject to these searches. all exits. Some officers were dressed scope of the search, or acts unreasonably
in SWAT uniforms — ballistic vests in the execution thereof, then a violation
How are the inspections conducted, imprinted with SWAT in big letters, occurs. An administrative search is not a
and what exactly does law enforcement camouflage pants, and black boots. They substitute for, or a procedure to circum-
inspect? “Such physical inspection shall entered with guns drawn and ordered vent, the warrant requirement for general
be conducted during normal business employees to line up along the fence. criminal investigations. If you discover
hours and shall be for the purpose Officers patted down and searched a criminal investigation dressed in an
of locating stolen vehicles, vessels, or employees. Pockets and purses were administrative search’s clothing, then
outboard motors; investigating the searched, also. The Eleventh Circuit object immediately! Q
titling and registration of vehicles or Court of Appeals ruled that these
vessels; inspecting vehicles, vessels, or measures clearly exceeded the parameters 1 U.S. Constitution, Amendment IV.
outboard motors wrecked or dismantled; of section 812.055. 2 Art. I, 12, Fla. Const.3
or inspecting records required in ss. 3  Fla. Stat. 812.055(1).
319.30 and 713.87.”8 The scope and execution of an 4 New York v. Burger, 482 U.S. 691, 702-03,
administrative inspection must be 107 S.Ct. 2636 (1987).
Included in that description are the reasonable in order to be constitutional. 5 Id.
safeguards of time and scope. Searches Courts have invalidated these inspec- 6 Donovan v. Dewey, 452 U.S. 594, 599, 101
must occur during normal business tions when law enforcement exceeds S.Ct. 2534, 2538 (1981).
hours. This implies that the property the properly defined scope. Fla. Stat. 7 Id. at 599-600, 101 S.Ct at 2538-39.
owner, or a representative thereof, will be 8 Fla. Stat. 812.055(2).
present during the search. Law enforce- 9 United States v. Villamonte-Maquez, 462 U.S.
ment cannot enter the premises after 579, 584, 103 S.Ct. 2573, 77 (1983).
hours when the business is closed and
no one else is around. ARTHUR M. MIKSIS began his legal career in the U.S. Senate on Capitol Hill in Washington,
D.C. After working in the government and then the private sector for years, he relocated to
Adherence to the scope of the inspec- the Tampa Bay area. He entered the mortgage foreclosure field with a large multi-state law
tion is a crucial factor when evaluating firm representing banks and lending institutions. Presently, he works at the McDermott Law
whether law enforcement validly entered Firm, P.A. in St. Petersburg handling a large criminal defense portfolio and practicing civil law
as a personal injury plaintiff’s attorney.

Spring 2019 | FLORIDA DEFENDER •  45

FA C D L FROM ARE TRIALS TRULY A
THE SEARCH FOR TRUTH?
FLORIDA DEFENDER
PUBLISHING POLICY PITS Ihave heard it said that trials are a search for the
truth. Unfortunately, that could not be further from
Articles submitted for publishing in the actual truth. What I mean is that it is the percep-
The Defender are not guaranteed to be
published but are subject to review by tion of truth that the jury comes to accept that
the editor(s) for content supporting
FACDL’s mission and any possible counts. The ultimate, or God’s truth, takes a
theme of a particular issue.
backseat to advocacy. For example, a more persua-
The editor(s) shall have full authority
to determine the content and layout of sive witness that provides tremendous detail in their
The Defender in accord with FACDL’s
mission. testimony will normally be believed by a jury over

Any person with knowledge of and someone who appears to be uncertain and uncon-
interests in, any of the ideals and goals
stated in the FACDL mission statement vincing but who is really telling the truth. And when
may submit an article for the Defender.
Any published article may be repub- that happens, a travesty occurs and someone’s life is
lished as long as the FACDL Florida
Defender is properly cited at the time of by affected. Sometimes with catastrophic results.  
republishing.      I remember reading in the newspaper a few years
Denis M.
Articles must be submitted already de Vlaming back about a woman who reported being attacked
proofed and edited. in a park in New York. She gave a detailed descrip-

Articles must be submitted in Word tion of her attacker and what he was wearing. She
format or other format required by
editor(s) for ease of publishing. described his sweatshirt with a particular marking on

The author of a submitted article must it and the fact that it was torn by the pocket. She went on to tell the police every
provide their full name or enough of
their name to be easily identified. aspect of the man›s voice, mannerisms and appearance.  Tremendous detail. The

The author of a submitted article must police, with this information, believe that they would “find their man.”  Unfortu-
provide a biography of no more than
100 words. nately, if they did and the woman positively identified this man as the person who

The author of a published article, who tried to rape her, he would have been convicted and sentenced to prison. In truth, she
is not a FACDL member, may request
a courtesy copy of The Defender issue made the whole thing up. Everything she said was a lie.  It was disclosed that she
containing their article be mailed to
them. had a motive to make up the story and to get her former boyfriend to feel sorry

The author of a submitted article may for her and take her back.
also provide a headshot to accompany
their article.      I have become a big fan of surveillance videos and cell phone recorders. They

Any entity with a clear connection to capture the truth. The real truth. It is near impossible to get the camera lens to
the FACDL mission may purchase
advertisement space in The Defender lie. There is no human element. There is no motive. Sometimes evidence like
magazine, but the content of such
advertisement is subject to the editor(s) that works for my client and sometimes against. But either way, “the truth” is right
review and approval for appropriate
content in accordance with the FACDL there to see. Q
social media policy.
DENIS M. de VLAMING, a Board Certified criminal defense attorney in Clearwater,
The editor(s) may reject or delay has practiced criminal law exclusively since 1972. He has been on FACDL’s Board of
publishing any article or advertisement Directors since its inception in 1988 and is a Charter Member of the organization. He
that does not conform with the FACDL is a past president of FACDL.
Mission and/or does not conform with a
theme set for a particular issue. PHOTO © HYATT HOTELS

46 • FLORIDA DEFENDER | Spring 2019 JUNE 20-22, 2019 • SEE PAGE 5 TO REGISTER

F WORDS officers recording without consent when
investigating crimes. A second major
The Friendly exception is, of course, when both parties
consent. There is a third, more narrow
FELONY exception that will be addressed shortly.
However, there is no exception for when
by a person without their permission. one party to a domestic dispute is afraid
Section 934.03(1)(a) criminalizes “any of their partner flying off the handle.
Caleb person who … intentionally intercepts, Nor is there a statutory exception for
Kenyon endeavors to intercept, or procures any defending oneself or preventing the
other person to intercept or endeavor imminent commission of a crime. The
“The fight was bad,” your client says, “real to intercept any wire, oral, or electronic Florida Supreme Court had a test case for
bad.” He was stupid angry, screaming, communication.”2 creating such an exception several years
and on the verge of swinging—maybe back, but declined to take that step. In
grabbed her by the arm. She was scared This statute is often dismissed merely McDade v. State, the Court encountered
but wanted to work it out. She was as a wiretapping prohibition, but it is far a stepfather who was sexually abusing his
holding her phone, recording the whole more. The prohibition on interception stepdaughter.4 At age 16 the girl decided
ordeal. includes oral communications unrelated to protect herself and record her stepfa-
to a phone. Going back to our client, ther in the act.5 Using a hidden recorder,
“We need someone else here; let’s call when his partner pulls out her phone and she successfully captured incriminating
the cops to mediate,” she offered. “Good records the tirade, it is an interception of statements that corroborated her allega-
idea,” he agreed. an oral communication. “Oral commu- tion of abuse.6
nication” is defined as “any oral commu-
We all know how this one ends. nication uttered by a person exhibiting an This poor girl had just unwittingly
The list of felonies found in the expectation that such communication is committed a third-degree felony. While
Florida Statutes is extensive. But this not subject to interception under circum- it’s doubtful that any ASA would prose-
scenario implicates one particular felony stances justifying such expectation and cute her, McDade was able to successfully
that might work to your client’s advan- does not mean any public oral commu- take advantage of Chapter 934’s secret
tage. When the client, in his rage, started nication uttered at a public meeting or weapon: a statutory exclusionary rule.
screaming curses and threatening his any electronic communication.”3 The Florida Statute section 934.06 prohibits
partner, she grabbed her phone to record circular nature of this definition aside, any illegally intercepted communica-
the tirade. Sometimes this is done to get any recording or capturing of an oral tion from being used as evidence.7 It
revenge later through online posting;1 communication other than by the ears also prohibits use of evidence derived
more often than not it is out of fear of the intended target constitutes a felony from the intercepted communication.
and self-preservation. Either way, police under Chapter 934. The Florida Supreme Court found that
love receiving these recordings. Still, no the statute was valid legislation and it
matter what the motivation is, in most There are some limited exceptions was not the Court’s place to create an
cases Florida law criminalizes recording to the prohibition on recording. Not exception.8 After McDade, the legisla-
surprisingly, the legislature provides a ture was outraged enough to create the
blanket exception for law enforcement previously-mentioned narrow exception
now found in 934.03(2)(k) that reads:
“It is lawful … for a child under 18 years
of age to intercept and record an oral
communication if the child is a party to
the communication and has reasonable
grounds to believe that recording the
communication will capture a statement
by another party to the communication
that the other party intends to commit,
is committing, or has committed an
unlawful sexual act or an unlawful act
of physical force or violence against the
child.”9

Aside from subsection (2)(k),
however, there are no other major

Spring 2019 | FLORIDA DEFENDER •  47

exceptions. In fact, some of the excep- any intercepted communication if the Court has repeatedly held that the law
tions to the exclusionary rule created disclosing individual had a reason to is constitutional, broad, and has even
by the United States Supreme Court believe it was intercepted.18 Subsection opined that it is simply a bad law. Still,
under federal law do not apply, including (1)(d) goes further and prohibits even the the Court upheld applications like
the good faith exception. The Florida use of any intercepted communication if McDade even though it was loath to
Supreme Court explicitly held that the person using the intercepted commu- do so. In this day of technology and
because the exclusionary rule created nication had reason to know it was constant recording, make sure to wield
in Chapter 934 is statutory, there is no intercepted.19 Subsections (1)(c) and (1) Florida’s friendly felony as the defense
good faith exception for law enforce- (d) add another layer of complexity with weapon it is. Because the case law is
ment.10 The most substantial exception this additional negligence standard. Both sparse, be prepared to litigate creatively.
to Chapter 934’s exclusionary rule is not subsections merely require any voluntary If all of this is not enough ammunition,
an exception, but a technicality found in act that discloses or uses an intercepted check out section 934.10, which creates
the definition. Oral communications are communication when that person had a civil cause of action with provision for
explicitly defined to include only those “reason to know that the information attorney’s fees.21 As a final tool in your
made with a reasonable expectation of was obtained through the interception arsenal, remember the legislative findings
privacy.11 In our client’s domestic alterca- of a wire, oral, or electronic communi- in subsection 934.01 outline this law
tion, his yelling obscenities and threats cation in violation of this subsection.”20 as designed to protect the privacy of
loud enough for any neighbors to hear Thus no actual knowledge is required innocent persons, which is also guaran-
soundly removes his communication that the recording used was an illegal teed by the Florida Constitution.22 Never
from the definition of “oral communica- interception. This combination of negli- forget that Florida’s protections here
tions” under the statute and will defeat gence language nested inside a general are above, beyond, and in addition to
any motion to suppress.12 intent statute creates a far-reaching law the protections under the United States
with relatively few exceptions. Constitution. Q
When considering the reasonable-
ness of the expectation of privacy, it is the Chapter 934 has not spawned 1 See Johnny Depp’s unfortunate mishap
speaker’s location that is relevant, not the substantial case law yet. The majority with Amber Heard, www.youtube.com/
listener’s.13 In Hentz v. State, the defen- of what does exist, however, is favorable watch?v=Nhz9PCbnkkQ.
dant was inside his house, talking on for excluding private communications
the phone to another individual inside of our clients. In Alachua County, we 2 §934.03(1)(a), Fla. Stat. (2018).
a recorded police interrogation room.14 were successful in having part—the 3 §934.02(2), Fla. Stat. (2018).
The court held that the determinative most damning part—of an arrest report 4 McDade v. State, 154 So. 3d 292, 294 (Fla.
fact was that the speaker — the defen- redacted from the court records and 2014)
dant — was inside his home, thereby removed from the prosecutor’s consid- 5 Id. at 295.
implying that the listener’s location in a eration. Our argument was simple: our 6 Id.
police interrogation cell was irrelevant.15 client’s wife recorded him in his own 7 §934.06, Fla. Stat. (2018).
The appellate court reversed the defen- house in violation of section 934.03(1) 8 McDade, 154 So. 3d at 299.
dant’s conviction finding he did have an (a). She then illegally disclosed to law 9 §934.03(2)(k), Fla. Stat. (2018).
expectation of privacy and the motion enforcement an intercepted communica- 10 State v. Garcia, 547 So. 2d 628, 630 (Fla.
to suppress should have been granted.16 tion under section 934.03(1)(c). Lastly, 1989) (adopting Davis v. State, 529 So. 2d 732
every time law enforcement or even the (Fla. 4th DCA 1988) in its entirety).
Moreover, the Fourth District Court assistant state attorney listened to it in 11 State v. Inciarrano, 473 So. 2d 1272 (Fla.
of Appeal held that section 934.03 is their consideration of the case, they were 1985).
a general intent statute.17 This means then using the intercepted communica- 12 See Id. at 1275 (discussing factors deter-
that the recording individual need not tion in violation of section 934.03(1)(d) mining reasonable of expectation of privacy).
specifically intend to intercept a commu- because they had reason to know it was 13 See Hentz v. State, 62 So. 3d 1184, 1192 (Fla.
nication; it is enough to intend whatever illegally recorded. 4th DCA 2011).
action later resulted in the interception 14 Id. at 1188.
of a communication. For example, if a In conclusion, the Florida Supreme 15 Id. at 1192.
person intentionally turned on a nanny- 16 Id.
cam only to later accidentally record a 17 Id. at 1190–91.
family member speaking, section 934.03 18 §934.03(1)(c), Fla. Stat. (2018).
is still implicated. 19 §934.03(1)(d), Fla. Stat. (2018).
20 §934.03(1)(c), (d), Fla. Stat. (2018).
Also notably, section 934.03 21 §934.10, Fla. Stat. (2018).
proscribes more than just the intercep- 22 Art. I, § 23, Fla. Const.
tion of an oral communication. Subsec-
tion (1)(c) prohibits the disclosure of CALEB KENYON, originally from south Florida, attended the University of Central Florida
before eventually graduating from the University of Florida Levin College of Law. He immedi-
ately entered private practice with Turner O’Connor Kozlowski. His current practice covers
federal and state criminal defense and a range of other matters not limited to any particular
practice area so long as the case offers the opportunity to think creatively and invent solutions
to complex legal problems.

48 • FLORIDA DEFENDER | Spring 2019

DUI NOTES

by

L. Lee
Lockett

TOOLS OF THE TRADE: the massive amounts of drunk drivers
“What’s in Your Toolbox?” and how more arrests are needed to
accomplish their goal of deterrence.
Iam happy to report — for those who especially when dealing with the proper “Law enforcement officers must arrest
don’t know — that I am the least administration of SFSTs. It’s not enough enough violators enough of the time to
handiest man you will ever meet. I just to order it. You must read it, swim convince the general public they will get
could care less about learning how to in it, immerse yourself in it. There are caught….”3 So how is this useful you ask?
fix a clogged toilet or how to patch dry gems hidden all throughout it. This is the Depending on your case and who your
wall. If you offered me a thousand bucks book that officers receive when they take officer is, it may be fruitful to spend some
to replace your faucet, I would have no the course. Most officers will acknowl- time at the DMV hearing or at depo with
idea where to begin. I struggle with light edge having learned from it, however a DUI officer who is known for making
bulbs and circuit breakers and once some will profess ignorance. However, alot DUI arrests. It could be used to show
had to call a neighbor to show me that from the vey beginning, the idea of
how to turn off the pool pump. it’s unlikely that any officer on a arresting “enough” people was imbedded
I don’t care. I own very few “DUI unit” will deny knowing in his or her mind and that oftentimes
tools and I get nervous about it, much less claiming the officer might err on the side of
walking into Home they’ve never heard of arresting someone as opposed to cutting
Depot. But when it it. Most DUI officers them loose. Although unlikely to score
comes to the “tools” of will admit to not only you many points in pre trial hearings, it
my trade, I do care. And having read it, many could work with the right jury.
you should too. will acknowledge that
they own a copy. The manual drives home statistics
In this article we are going You should also consider like the assertion that “65 people” are
to explore what devices you’ll killed or injured every hour by impaired
need 1 to effectively represent your getting the Instructor’s manual in drivers.4 However, what is missing from
DUI clients. We’ll also chat about how addition to the participant manual. this statistic are the data surrounding it.
to use these tools effectively and where This gives you a clearer picture of what Details such as where the 65 people are
and when to use them. Some of you will is actually transpiring in the classroom from (U.S. or worldwide?) and whether
have some of these already and some will during instruction. But at the very these “impaired” drivers were arrested
have them but rarely use them. For those least, get the student book. Also keep and convicted of DUI and what, if any,
of you without any of them, its time to in mind that NHTSA intermittently BAC/BrAC results were obtained in each
get a little “handier” around the “house”! will update the manual so try and make case. Officers are warned that “DWI is a
sure you have the most recent version. crime committed by a substantial segment
THE NHTSA MANUAL ON I recently obtained the revised manual of Americans” and that DUI “remains a
DWI DETECTION2 from February 2018. popular crime.”5 Clearly these students
are left with the impression that more
This is your hammer. It’s consid- For starters, the initial sessions of the DUI arrests need to be made. The
ered the gold standard in law enforce- training are quite telling. For example, manual even suggests that doubling
ment training for DUI investigations, the students are taught early and often or tripling the number of DUI arrests
about the dire need to rid the roads of should be the goal.

Many attorneys who own this

Spring 2019 | FLORIDA DEFENDER •  49

manual skip over the first three sessions, at stop; turning problems) may indicate 7-day DRE school, they must undergo
in large part because you don’t get to the impairment.7 In any given case you pre-school. That has a manual as well8
good stuff (the SFSTs) until Session 4. should match up the driving patterns and it is given to officers who attend this
But you’ll miss out on understanding officers are warned about with your two day preliminary course.
the officer’s mindset. What impact have clients driving pattern to see what
these courses and manuals had on the defenses you might have. In Florida, the scientific findings
officer’s subconscious mindset when he of the Horizontal Gaze Nystagmus
or she is in the field making real world Skipping ahead to Session 7, we exercise are not admissible unless the
decisions in real investigations? Other can now focus on phase three of the officer is a DRE.9 Similarly, an officer
gems like what they are taught about investigation where the officers learn cannot testify as to opinions in DUI
the legal environment is useful as well. to administer SFST’s. Any officer cases involving non-alcohol related
not receiving this formalized training drugs unless they have completed DRE
Have you ever wanted proof to will be at an automatic disadvantage school and completed the DRE 12-step
support your long-held belief that
officers are taught how to testify in court. Through Session 7 and the protocol. Like the SFST manual,
convincingly in court? Have you subsequent sessions, the officers learn a this manual also offers tips on how
ever wanted to bring that out myriad of techniques in administering to prepare their reports and what
on cross at trial but didn’t have the standardized exercises. You can use a typical line of defense questions
anything to back it up? Well for this to build your own checklist for each might be at a deposition.10
those of you who read through the case. Check the officers work and always
entirety of Session 1 know, officers ask him/her to recite their instructions In this manual you will learn
are taught how to testify convinc- on each exercise where there is no video. all about the DRE investigation,
ingly in DUI cases. Students are You’d be surprised how many times a detailed instruction on all twelve
taught that once they are done officers leave out important instructions sections and also read what the
with the manual, they will be but then report the person failed to officers learn about the different
able to “Describe DWI evidence clearly follow instructions that were never given. drug categories (e.g., CNS stimu-
and convincingly in written reports In these latter sections of the manual you lants, Hallucinogens, inhalants,
and verbal testimony.”6 I use this as will also pick up valuable tidbits on what etc). I cannot fathom a scenario where
my opening point in many of my cross persons (e.g., overweight, elderly, etc) are an attorney could depose a DRE officer
examinations in suppression hearings not great candidates for these exercises. without this manual. For a more detailed
and trial. Once the fact finder hears that review of the DRE protocol and this
the officer’s direct examination testi- DRE MANUAL manual, check out the DUI Notes article
mony was likely tailored or rehearsed, Yes, NHTSA has a manual for DRE from the Winter 2014 issue.
credibility levels could plummet.
as well. We can affectionately refer to ARIDE MANUAL
Officers are also trained on the law, this tool as the “screwdriver” because
the DUI statute and what elements need if you don’t have this manual and you It seems these days that most DUI
to be established in court. You can tell aren’t prepared for the testimony coming unit officers have been trained from the
by the way many of them write their your way — well, you’ll be screwed! Advanced Roadside Impaired Driving
reports, almost in anticipation of defense Anyone handling a DUI case involving Enforcement (“ARIDE”) manual.
challenges. You’ll read things like “I saw a Drug Recognition Evaluator needs Although this course offers “DRE-esque”
Ms. Smith in actual physical control of the DRE 7-Day School Participant type training and lectures on the Drug
her vehicle after the accident and after Manual (R5/13 Edition) and should Evaluation and Classification program,
contact I had a reasonable belief she also consider getting the Instructor it is not the same as being a DRE officer.
was ill, tired or impaired.” Officers will manual. But before an officer gets to the But because it’s a prevalent course in
actually use quotes from statutes and the DUI law enforcement community,
case law in court and in their reports. you need to add this one to your DUI
In Session 3 of the manual, the officers arsenal.
receive hints on how to phrase their
probable cause affidavits. In the course introduction section,
it says that “This course is intended
Have a client stopped for DUI on a to bridge the gap between the SFST
motorcycle? Well there’s a small section and DRE courses….” This manual
carved out in the manual for that too. includes a nice section on what types of
Officers are taught that various driving medical conditions mimic impairment.
patterns of motorcyclists (e.g., drifting It discusses head trauma and how that
during curve; troubles with dismounts might cause “speech impediment and
other gross indicators similar to those of
50 • FLORIDA DEFENDER | Spring 2019 alcohol and/or drug impairment.”11 This