Bester v. Warden, Attorney General of the State of Alabama, No (Sept. 2, 2016)

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1 Supreme Court of Florida Case Law Update September 5, 2016 Prepared by Richard L. Polin Chief Assistant Attorney General Office of the Attorney General, State of Florida Graham v. State, SC (Sept. 1, 2016) Graham was convicted of two counts of lewd or lascivious molestation, pursuant to s (5)(c)2, Fla. Stat. (2013), for touching the victim s breasts and touching the victim s buttocks. The Florida Supreme Court held that the two acts were distinct acts, even though occurring in the same criminal episode. As the acts were distinct, the dual convictions did not violate double jeopardy principles. Although the Supreme Court approved the conclusion of the First District Court of Appeal, it found that the First District s opinion engaged in incorrect analysis when it applied a different elements test, by looking at the statutory language to determine whether the defendant could be convicted twice under the same statute. The Supreme Court also disapproved decisions of the Fourth District in which that Court held that a defendant could not be charged more than once under the same statute for multiple acts during the course of a single criminal episode. Resolving the conflict in this way clarifies that Blockburger ultimately provides courts with two tests to apply: (1) where the defendant is convicted multiple times under the same statute for acts that occurred during the course of a single criminal episode, a distinct acts test is used, but (2) where a defendant is convicted under multiple statutes for one act, the different elements test applies. Eleventh Circuit Court of Appeals Bester v. Warden, Attorney General of the State of Alabama, No (Sept. 2, 2016) Bester was convicted in an Alabama state court of trafficking in cocaine and other offenses. He subsequently argued that his trial counsel was ineffective by failing to request that the jury be given a no-adverse inference jury instruction,

2 which would have told the jurors that they could not infer from his failure to testify that he was guilty. The claim was raised in a federal habeas corpus petition after it was asserted in a state post-conviction pleading. Initially, the Eleventh Circuit concluded that the state court had inadvertently overlooked this claim. As a result, it was not adjudicated on the merits in state court, and the deferential standards of review that are generally applicable were not applied in this case; rather, the federal habeas courts reviewed the claim de novo. In Carter v. Kentucky, 450 U.S. 288, 300, 101 S.Ct. 1112, 1119 (1981), the Supreme Court held that a criminal trial judge must give a no-adverse-inference instruction when requested by a defendant to do so. Neither the Supreme Court nor the Eleventh Circuit, however, has ever held that a trial court must give a noadverse-inference instruction if one is not requested. Nor has either court held that it is ineffective assistance of counsel not to request such an instruction. The Eleventh Circuit avoided the issue of whether trial counsel was deficient by not requesting the instruction, and resolved the case by finding that Bester could not demonstrate prejudice. The Eleventh Circuit noted that the cases upon which Bester relied were direct appeal cases, not ineffective assistance of counsel claims. In the cases upon which Bester relied, it had been the prosecution s burden, on appeal, to demonstrate that the erroneous failure to give the instruction was harmless beyond a reasonable doubt. By contrast, when addressing a claim of ineffective assistance of counsel, the petitioner has the burden of demonstrating both that counsel was deficient and that the requisite prejudice existed. Bester did not carry his burden of demonstrating prejudice. The evidence, as summarized by the Eleventh Circuit, was viewed as overwhelming. United States v. Farias, No (Sept. 1, 2016) Farias appealed his convictions for conspiring to traffic in stolen goods and trafficking in contraband cigarettes. The Eleventh Circuit affirmed and addressed several issues. First, the district court did not err in denying a motion to dismiss the indictment as untimely. The conspiracy charge had a five-year limitations period, and had to be returned within five years of the last alleged over act, which occurred 2

3 on April 2, The original affidavit was returned on July 21, 2013, within the five-year period. Although it was sealed, the government may properly request the sealing of an indictment for a period beyond the statute of limitations. The superseding indictment was also timely. The filing of the original, timely indictment tolls the limitations period for purposes of a superseding or new indictment if the subsequent indictment does not broaden or substantially amend the original charges.... Here, the superseding indictment actually narrowed, rather than broadened, the original charges. That was so because it dropped seven substantive offenses, while retaining the conspiracy charge and narrowing the time frame of the originally charged conspiracy. The district court also properly denied a motion to dismiss the indictment based on outrageous government misconduct. Due process is implicated in such claims only when the Government activity in question violates some protected right of the Defendant. Here, the evidence established that Farias was perfectly willing to repeatedly engage in unlawful cigarette transactions involving huge sums of money, and indeed he raised no entrapment argument at all. His allegations that the sting operation benefited the tobacco companies and harmed the public health by making cigarettes available at a below-market price are irrelevant, and in all events, do not establish any violation of his due process rights. There was also no error in denying discovery on the misconduct claim referenced in the preceding paragraph. While the government is obliged to disclose evidence or information that would be favorable to the defendant, there was no showing how the tobacco companies claimed involvement in the sting operation was in any way relevant to establish his innocence or mitigate his punishment. With respect to the sufficiency of evidence for trafficking, Farias challenged the proof that he knew the stolen nature of the cigarettes. The Eleventh Circuit rejected this claim, noting that Farias told one of the participants that they weren t on board, which was understood to mean the cigarettes were stolen. In addition to noting other comments which were construed as indirect references to the stolen nature of the cigarettes, the Court also focused on the fact that agents were selling cartons to Farias at a substantial price disparity - $19.50 per carton when the listed price was between $27 and $36, and Farias would therefore have had substantial reason to believe the cigarettes being sold did not originate from a legitimate source. 3

4 Farias request for a buyer-seller relationship instruction, pursuant to which he sought to argue that he was merely a broker, was properly denied in light of the other jury instructions on the general conspiracy. Those instructions required the government to prove Farias knowledge of the unlawful purpose of the plan and further advised the jury that imply being present at the scene of an event or merely associating with certain people and discussing common goals and interests doesn t establish proof of a conspiracy, and [a] person who doesn t know about [the] conspiracy but who happens to act in a way that advances some purpose of one doesn t automatically become a conspirator. United States v. Nagel, No (Sept. 1, 2016) Nagel pleaded guilty to three counts of enticement of a minor to engage in sexual activity and challenged his 292-month sentence on appeal. The guideline imprisonment range was 292 to 365 months, and for each count there was a 10- year statutory minimum sentence and a maximum of life. Nagel argued that the court erred by not grouping two of the counts which involved the same victim. The commentary to the guidelines reflects that for convictions for raping the same person on different days, the offenses are not to be grouped together. Nagel argued that this non-grouping provision does not apply to cases in which the defendant merely enticed a minor individual to have consensual sex on more than one occasion. In an opinion addressing this as an issue of first impression, the Eleventh Circuit held that separate counts arising from distinct instances of non-forcible sexual conduct with the same minor are not subject to grouping. Here, Nagel was convicted of sexual misconduct on different occasions, involving two distinct periods of time, each of which resulted in a separate instance of oral sex and sexual intercourse, several weeks apart. Although the instances involved the same victim, each encounter caused a separate harm. The Court also rejected an argument that the sentence was procedurally unreasonable because the court did not give sufficient reasons to justify the 292- month sentence, especially in light of factors which Nagel asserted favored a downward variance. Here, the district court considered all of the relevant statutory factors and further emphasized the severity of Nagel s crimes. 4

5 Last, the Court rejected Nagel s argument that the 292-month sentence was substantively unreasonable because it is beyond what was necessary to fulfill the statutory goals of sentencing. The seriousness of the offense, the provision of just punishment, and the need for deterrence are all s. 3553(a) factors that support a sentence within the guideline range. With respect to Nagel s argument that other offenders receive lighter sentences for more serious offenses, the Court found that the sentence imposed was within the reasonable range of sentences warranted by the facts, including the harmful nature of the offense, and the need for deterrence. Second District Court of Appeal Burgess v. State, 2D (Sept. 2, 2016) (en banc) (on rehearing) On rehearing, the Second District modified its prior opinion, but abided by the conclusions from its earlier opinion. The Court receded from its prior opinion in Carroll v. State, 761 So. 2d 417 (Fla. 2d DCA 2000), held that a conviction under section (5) [habitual traffic offender] requires a defendant to have had a driver s license, and certified conflict with Newton v. State, 898 So. 2d 1133 (Fla. 4 th DCA 2005) and State v. Bletcher, 763 So. 2d 1277 (Fla. 5 th DCA 2000). The habitual traffic offender statute applies only to those who are driving with a revoked or suspended license, not to those who are only driving without a valid license. Fernandez v. State, 2D , 2D (Sept. 2, 2016) The Second District affirmed, in part, an order denying a motion for postconviction relief, and reversed, in part, for further proceedings on two claims. In one of the claims, the trial court properly found that convictions for burglary of a dwelling and home invasion robbery violated double jeopardy. However, after vacating the conviction for burglary, the trial court erred in failing to conduct a resentencing hearing, using a corrected scoresheet, eliminating the points for the now-vacated conviction for burglary. In another claim, Fernandez argued that counsel was ineffective for failing to properly advise him regarding eligibility for a work release program. The trial court denied this claim based on portions of the plea colloquy in which the court explained to the defendant that any decision on work release would be made by the Department of Corrections. This did not conclusively refute the claim, and an 5

6 evidentiary hearing was required. Fernandez was arguing that counsel misadvised him regarding eligibility, and that he learned upon arriving in prison that his convictions for sexual battery made him ineligible for work release, and that had he known that, there is a reasonable probability that he would not have entered the plea and would have gone to trial. Third District Court of Appeal Escobar-Mazariegos v. State, 3D (Aug. 31, 2016) On the basis of the Court s own prior opinion in State v. Miller, 193 So. 3d 1001 (Fla. 3d DCA 2016), and in agreement with the Second District s decision in Burgess v. State, addressed above, the Third District reiterated that the habitual traffic offender statute does not apply to those charged with driving without a valid driver s license. Conflict was again certified with decisions from the Fourth and Fifth Districts. C.H. v. State, 3D (Aug. 31, 2016) An adjudication of delinquency for criminal mischief was reversed because the evidence did not satisfy the $1,000 threshold for felony criminal mischief; the adjudication was reduced to first-degree misdemeanor criminal mischief. C.H. was charged with causing damage in excess of $1,000 to a vehicle s roof, trunk, and back window. The evidence presented by the State was that the vehicle was restored to 95% of what it had been prior to the damage, and that the victim paid the body shop the $500 deductible that he had on his insurance policy. Although the car was only five months old and its original purchase price was $47,000, the owner s opinion as to the restoration to 95% of what it was, was insufficient to establish the $1,000 amount of damage required for the felony adjudication. Fourth District Court of Appeal Sanchez v. State, 4D (Aug. 31, 2016) (corrected opinion) The Fourth District reversed a felony murder conviction arising out of a robbery of a convenience store. A motion to suppress evidence should have been 6

7 granted because an officer lacked reasonable suspicion to stop the car which the defendant had been in. Shortly after the robbery, police responded to BOLOs, which described Haitian males as fleeing the store on foot. Within the next several minutes, police stopped every black male near the store some on foot, some on bicycles. The arresting officer arrived near the perimeter of the crime scene within a few minutes of receiving a radio call; the only BOLO he heard was for two black males fleeing westbound from the store. No other information had been received. Within a few blocks of the scene, that officer saw two black males in a red Dodge Charger, travelling north and then east. No traffic violations were observed. Neither of the two men made eye contact with the officer, and the officer found that to be suspicious. The officer also noted that the passenger was seated in the rear seat furthest away from the driver and found that suspicious, in addition to noting that the passenger had a hat drawn down to his eyebrows. When the officer activated his lights to pull the car over, he observed a third black male in the front passenger seat. In this case, the lack of eye contact was not a proper basis for reasonable suspicion because it was fully consistent with cautious driving. The BOLO itself was vague and minimal, referring to nothing other than two black males. The vehicle which was stopped was on the road, during daylight hours, in a populated area. None of those were suspicious factors. One judge dissented. Bellamy v. State, 4D (Aug. 31, 2016) The Fourth District reversed and remanded for resentencing because the trial court did not properly apply the law when considering the defendant s motion for a downward departure sentence. The Defendant was convicted of manslaughter with a firearm. The downward departure sentence was sought on the basis of s (2)(j), Florida Statutes, for which all three elements must be present: (1) the offense was committed in an unsophisticated manner, (2) it was an isolated incident, and (3) the defendant has shown remorse. 7

8 First, the trial court made an erroneous statement when the court stated that the defendant s remorse was something that could never be considered; when relevant to the motion for a downward departure, it may be considered. Second, the trial court stated its belief that the isolated incident factor was not established because you only need one time to be an accomplice and/or principal to murder for this to occur, and you only need one shot to kill somebody.... The Fourth District observed that the isolated incident factor corresponds to whether the defendant has an extensive prior criminal record, or whether the offense involves multiple incidents. Third, the trial court made statements on the record which, to some extent, reflected a correct understanding of the element regarding an unsophisticated manner, but other statements suggesting that this factor was not properly understood. The Fourth District noted that this factor is available for all felonies except capital felonies and the factor is not dependent on the type of crime. Eustache v. State, 4D (Aug. 31, 2016) (en banc) On appeal from the denial of a Rule motion, the Fourth District addressed an issue regarding the extent of the sentence that may be imposed upon revocation of supervision for a substantive violation for one who was initially sentenced as a youthful offender: We interpret the applicable statutory provisions to grant discretion to trial judges, upon revocation of youthful offender supervision for a substantive violation, to either continue with a youthful offender cap sentence or impose any sentence that might have been originally imposed without regard to the defendant s youthful offender status. If the court exercises its discretion not to impose a youthful offender cap sentence upon revocation, then where the offense originally required a minimum mandatory sentence, the court must impose that sentence. In this case, the defendant was convicted for armed robbery, which carried a 10-year minimum mandatory sentence, but was originally sentenced as a youthful offender to four years in prison, plus two years of probation. Probation was 8

9 revoked based on the commission of two new drug offenses, and the defendant received a sentence of 15 years in prison, with a 10-year mandatory minimum. Since the trial court, upon revocation, did not continue the youthful offender cap sentence, the court properly imposed the mandatory minimum sentence. In announcing the foregoing, the Fourth District receded from language in its prior decision in Blacker v. State, 49 So. 3d 785 (Fla. 4 th DCA 2010), in which the Court stated that a minimum mandatory sentence cannot be imposed upon a defendant, initially sentenced as a youthful offender, who later substantively violates probation or community control. The Fourth District certified conflict with the Fifth District s decision in Christian v. State, 84 So. 3d 437 (Fla. 5 th DCA 2012), and also certified the following question of great public importance: WHERE A DEFENADNT IS INITIALLY SENTENCED TO PROBATION OR COMMUNITY CONTROL AS A YOUTHFUL OFFENDER, AND THE TRIAL COURT LATER REVOKES SUPERVISION FOR A SUBSTANTIVE VIOLATION AND IMPOSES A SENTENCE ABOVE THE YOUTHFUL OFFENDER CAP UNDER SECTIONS AND (2), FLORIDA STATUTES, IS THE COURT REQUIRED TO IMPOSE A MINIMUM MANDATORY SENTENCE THAT WOULD HAVE ORIGINALLY APPLIED TO THE OFFENSE? White v. State, 4D (Aug. 31, 2016) The Fourth District reversed the denial of a Rule motion, in which the defendant argued that trial counsel was ineffective for failing to object to a vindictive sentence. After a hung jury resulted in a mistrial, the judge initiated plea discussions and offered the defendant a 10-year mandatory minimum sentence in return for a guilty plea. The defendant proceeded to trial and was convicted; he then received a life sentence. 9

10 Here, the court initiated the plea discussions, and offered a 10-year sentence at a time when the court was well aware of the facts of the case, having already conducted a full trial prior to the mistrial. At the sentencing hearing, the judge referenced two facts to support the life sentence malingering and the effect of the crime on the victim. The Fourth District observed that, at least in part, these factors were evident at the first trial or were otherwise inherent in the crime committed. Fifth District Court of Appeal Tyson v. State, 5D (Sept. 2, 2016) Pursuant to Henry v. State, 175 So. 3d 675 (Fla. 2015) and Graham v. Florida, 560 U.S. 48 (2010), the Fifth District granted a Rule motion and remanded the case for resentencing. Tyson was convicted of armed robbery, conspiracy to commit armed robbery and evidence tampering. He was under 18 when he committed the offenses, and was sentenced to consecutive sentences totaling 50 years. The sentences imposed did not afford him a meaningful opportunity for early release based upon demonstrated maturity and rehabilitation. The Fifth District certified the same questions of great public importance as it previously did in Peterson v. State, 193 So. 3d 1034 (Fla. 5 th DCA 2016): 1. DOES HENRY V. STATE, 175 So. 3d 675 (Fla. 2015), ONLY APPLY TO LENGTHY TERM-OF- YEARS SENTENCES THAT AMOUNT TO DE FACTO LIFE SENTENCES? 2. DOES HENRY APPLY RETROACTIVELY TO SENTENCES THAT WERE FINAL AT THE TIME HENRY AS DECIDED? 3. IF HENRY ONLY APPLIES TO DE FACTO LIFE SENTENCES, THEN, IN DETERMINING WHETHER A TERM-OF-YEARS SENTENCE IS A DE FACTO LIFE SENTENCE, SHOULD FACTORS SUCH AS GENDER, RACE, SOCIOECONOMIC STATUS, AND OTENTIAL GAIN TIME BE CONSIDERED? 10

11 4. IF SO, AT WHAT POINT DOES A TERM-OF- YEARS SENTENCE BECOME A DE FACTO LIFE SENTENCE? Tarrand v. State, 5D (Sept. 2, 2016) (on rehearing) Tarrand entered a negotiated plea to second-degree murder, which was committed it 1993, and he received a prison term of 51 years. He was 15 years old at the time of the offense. In a rule motion, he argued that he was entitled to resentencing, in light of Miller v. Alabama, 132 S.Ct (2012) and Graham v. Florida, 560 U.S. 48 (2010), because the 51-year sentence was a de facto life sentence. As this case involved a homicide, the Fifth District concluded that the initial sentence was not prohibited under the Eighth Amendment, but, pursuant to Thomas v. State, 177 So. 3d 1275 (Fla. 2015), Tarrand had to be resentenced in light of the new juvenile sentencing statutes. In Thomas, the Supreme Court quashed a decision approving a juvenile homicide defendant s 40-year prison sentence and ordered resentencing under the new 2014 juvenile sentencing statutes. 11