The following pages highlight some of the major issues and cases the Public
Defender’s Office (PD-11) has worked on, and our responses to challenges facing
us. PD-11’s Appellate Division handled most of these cases.
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DEFENDERS ARE INDEPENDENT CONSTITUTIONAL
Acting on Behalf of Clients
Acting to Preserve
Independence and Financial Integrity
Fighting Chronic Underfunding
and Excessive Caseloads
Fighting Contempt Charges
Acting to Preserve the
Integrity of the Criminal Justice System
Improvement of the Court
Appointment System—Creation of “The Wheel”
Halting the State’s
Falsification of Criminal Records
A History of Reforms in the
Treatment of Children
Children in Chains:
Challenging the Indiscriminate
Practice of Shackling in
Children Must Be Given
Detention Hearings Within 24 Hours of
Being Taken into Custody
Enforcing Compliance with
Juvenile Statutory Detention Requirements
The Death of a Child in
Detention: Omar Paisley Investigation
Pahokee Facility Litigation
Attack on Registration of
Children As Sex Offenders
INDIGENT PARENTS FROM “DEBTOR’S PRISON”
THE RIGHTS OF PERSONS WITH MENTAL HEALTH
Challenging the State’s
Failure to Treat Mentally Incompetent Clients
Mental Heath Representation
Extends Through Various Stages of The
RIGHTS OF PRETRIAL DETAINEES
Requiring Judicial Review of
Probable Cause for Continued Detention
Enforcing the Constitutional
Right to Reasonable Bail
The Free Trade Association of
the Americas Summit: Challenging Arrests Targeting Free Speech
Affording Due Process to
Persons Arrested Solely on Intrastate,
Immigration, and Military Holds
Immigration Holds Extending Past 48 Hours
THE RIGHT TO COUNSEL
Challenging the Trial
Court’s Practice of Limiting the
Appointment of Counsel
Ensuring the Right to
Effective Assistance of Counsel
Ineffective Trial Counsel
Ineffective Assistance and
The Right To An Appeal
Exposing the Unreliability of
Challenging the Reliability
of Fingerprint Evidence
Challenging the Intoxilyzer
Breath-Alcohol Testing Machine
Litigating the Racially
Discriminatory Application of Habitual
Offender Sentencing Laws
Practices in Jury Selection
SEXUAL OFFENDER LAWS
Commitment of “Sexually Violent Predators”
& Public Notification Requirements
Challenging the Death Penalty
Challenging the Death Penalty
for Mentally Retarded Persons
Implementation of the Death Penalty Reform Act of 2000
Assisting the Innocence
Challenging the Application
of the Death Penalty in Individual Cases
WRIT PRACTICE— Rectifying Serious Injustices and Illegal Actions That Cannot Be Solved in the Normal Appeals
Challenging Judges Improperly
Presiding Over Cases
Protecting Integrity of
Criminal Justice System
Challenges to Lack of
Challenges to Double
Jeopardy, Speedy Trial, and Illegal Sentences
FIRST AMENDMENT FREEDOMS
FOURTH AMENDMENT RIGHTS
A FAIR TRIAL
Conduct Of Trial
Defendant’s Right To Present
A frequent question asked a public defender is, “How can you litigate against
the state if you are paid by the state?” The simple answer is that a lawyer
paid by someone other than the client has an ethical obligation to the client,
not to the party paying for the attorney’s services. Rules Regulating the
Florida Bar 4-1.8(6). A public defender is constitutionally obligated to act
independently of the government and oppose it in adversary litigation. Polk County
v. Dodson, 454 U.S.
312 (1981). In this circuit, PD-11 has vigorously represented the interests of
clients, not the state. Florida’s
Attorney General’s Office, however, has fought to narrowly limit our
representation of clients. This has resulted in litigation over the boundaries
of our authority, as indicated by the following four cases.
In State ex rel. Smith v. Brummer, 426 So. 2d 532 (Fla. 1982), PD-11 filed a federal class
action suit to rectify constitutional violations in regard to involuntary civil
commitment proceedings. The attorney general instituted a quo warranto
proceeding in the Florida Supreme Court to challenge the public defender’s
authority to pursue the class action. The Supreme Court did not allow the
particular class action because the class included persons that were not
indigent and whom the public defender did not previously represent.
Nevertheless, the Supreme Court reaffirmed the public defender’s authority to
continue to represent clients in federal court on an individual basis, and the
public defender’s essential role of acting independently of the government. Id. 533.
In another case brought by the same Attorney General against the same Public
Defender, State ex rel. Smith v. Brummer, 443 So. 2d 957 (Fla. 1984), PD-11 accepted
appointments by a federal district court to represent former clients in federal
habeas proceedings. The attorney general filed a quo warranto petition in the
Florida Supreme Court to vacate the appointments. The Supreme Court held that
the public defender’s statutory authority was limited to appointments by state,
not federal, courts. It noted, though, that its decision pertained only to
federal court appointments, and did not relate to the public defender’s
authority to continue its representation of a state-appointed client in federal
In 1996, a state agency proposed rules governing the certification of Domestic
Violence treatment programs. PD-11 filed a challenge to these rules before the
Department of Administrative Hearings, on the grounds that the proposed rules
compelled speech, in violation of the First Amendment, and promoted gender
discrimination, in violation of the Equal Protection Clause. The attorney
general filed a quo warranto petition in the Florida Supreme Court, to contest
our authority to challenge these rules. The petition was denied as moot because
we withdrew our challenge to the rules. State ex rel. Butterworth v. Brummer,
680 So. 2d 424 (Fla.
More recently, PD-11 filed a
petition for state postconviction relief on behalf of a client serving a life
sentence when a new witness came forward who would exonerate him. The appellate
court ruled that we could not continue representing our client in
postconviction matters without the trial court reappointing our office for that
specific purpose. Mann v. State, 937 So. 2d 722 (Fla. 3d DCA 2006). PD-11 disagrees with that
decision and believes that it interferes with the professional responsibility
of an attorney to continue pursuing relief in a case where the merits of the
case justify it. PD-11 has sought review of the Mann decision in the United States Supreme Court. Return
Acting to Preserve Independence and Financial Integrity
Chronic legislative underfunding caused a tremendous increase in PD-11’s
appellate backlog in the late 1970’s. Due to the huge backlog, many clients
were denied their right to timely appeals. In response, to ensure effective and
timely representation of our clients, PD-11 sought to withdraw from excessive
appeals in favor of private attorneys appointed by the court. Dade County
v. Baker, 362 So. 2d 151(Fla. 3d DCA 1978), quashed sub nom Escambia County v. Behr, 384 So. 2d 147 (Fla. 1980). The
appellate court would not permit withdrawal, but the Florida Supreme Court held
that a trial court has discretion to appoint a public defender’s office or
private counsel on appeal.
PD-11’s litigation was the impetus
for Miami-Dade County to agree, in 1980, to compensate
private counsel to handle some of the appeals. Attorneys were screened so that
only qualified appellate counsel participated. Although the compensation was
minimal, the program was very effective in reducing the backlog to manageable
levels. We also joined with the Dade County Bar Association in the mid-1980’s
to implement an emergency, volunteer-appellate attorney program to further
assist in handling the backlog.
PD-11 has filed amicus briefs on
behalf of other Florida
public defenders who faced excessive caseloads due to legislative underfunding.
In In re Order on Prosecution of Criminal Appeals by the Tenth Judicial Circuit
Public Defender, 561 So. 2d 1130, 1132, 1136 (Fla. 1990), the Supreme Court
recognized that “the woefully inadequate funding of the public defenders’
offices, despite repeated appeals to the legislature for assistance” was “a
statewide concern,” and chided the legislature to “live up to its
responsibilities and appropriate an adequate amount” to fund the public
defender offices. The appellate court litigation left a number of significant
issues untouched, and in response to our suggestions as amicus, the Supreme
Court addressed those issues and ruled in a favorable way.
PD-11, on behalf of the Florida
Public Defender Association (FPDA), has pressed for courts to recognize the
professional independence of public defenders to manage their own caseloads,
free of judicial intrusion. PD-11 advanced this position in In re
Certification of Conflict in Motions to Withdraw Filed by Public Defender of
Tenth Judicial Circuit, 636 So. 2d 18, 22 (Fla. 1994), in which the Supreme
Court held that, although an appellate court may make an objective inquiry to
confirm the factual basis for a motion to withdraw due to excessive caseload,
the court should not “attempt to interfere in the management of the Public
Defender’s office, or attempt to instruct the Public Defender on how best to
conduct his affairs.” Justice Harding concurred: “The public defender is a
constitutional officer. Art. V, §18, Fla.
Const. The public defender is charged not only with representing indigent
defendants, but also in managing an office, directing personnel, and
administering a budget. ... [Public defenders] should be accorded great
independence in making the decisions to carry out their charge . . . Courts
should be reluctant to get into the micromanagement of a public defender’s office.”
PD-11 also has had to litigate
excessive juvenile caseloads. In 1992, we filed motions to withdraw and to
appoint outside counsel. These motions were granted in all of the juvenile
divisions, leading to negotiations in which Miami-Dade County
agreed to fund additional attorney positions for PD-11 to represent children in
the delinquency system.
Beginning on July 1, 2004, expenses
that formerly were paid by the county are now paid from state budgets given to
the court system, the state attorney, and the public defender. Soon after these
changes, the public defender joined with the state attorney in challenging the
trial court’s practice of ordering expert witness reports and then ordering the
public defender and state attorney to pay the costs. The appellate court agreed
that the trial court should pay the costs as “the party who requests the
appointment of the expert must pay for the expert.” Office of State Attorney
for Eleventh Judicial Circuit v. Polites, 904 So. 2d 527, 532 (Fla. 3d DCA 2005).
PD-11 has made a long-term effort at
the state and federal levels to get loan repayment assistance for its
attorneys. PD-11 is pushing for legislative action, through the John R. Justice
Prosecutors and Defenders Incentive Act of 2007, to try to increase the
retention rate. We are urging congressional members to fund a loan repayment
program for law school graduates who elect to work for our office. We have had
no success at the state level, but in 2007, the bill passed both houses in
Return to Top
The assistant public defenders in PD-11 are zealous advocates for their
clients. In the few instances over the past three decades when a judge has
charged one of our lawyers with contempt, PD-11 has supported these lawyers and
solicited pro bono representation for them by highly regarded attorneys. Vizzi
v. State, 501 So. 2d 613 (Fla. 3d DCA 1986); Thaxton v. State, 525
So. 2d 1009 (Fla. 3d DCA 1988); Smith v. State, 954 So. 2d 1191 (Fla. 3d DCA 2007).
Another example is when an assistant public defender filed an appellate brief
one day past a due date, both he and Public Defender Bennett Brummer were
ordered to appear before the appellate court to answer a contempt charge.
Chesterfield Smith, Esq., a renowned attorney and founder of Holland & Knight,
assisted pro bono in their successful defense.
Prior to mid-1992, the court appointment system for criminal cases in the
Eleventh Judicial Circuit of Florida was controlled by judges. Several judges distributed
these court appointments at their whim to only a small number of private
attorneys who would pay kickbacks in return for additional appointments. This
practice resulted in federal prosecutions and convictions of several private
lawyers and judges in “Operation Court Broom.” Numerous instances of fraudulent
billing were also uncovered.
As a consequence of the scandal, a committee headed by a prominent private
attorney recommended the creation of a new court appointment system to be run
by PD-11, without any judicial involvement. The new system came to be called
“The Wheel,” because attorneys were assigned from a rotating computer-operated
registry. “The Wheel” opened participation in the criminal justice system to
500 lawyers. Steps were taken to ensure that quality representation was
provided to indigent defendants by court-appointed counsel. Participating
attorneys were screened by a peer committee for bar and trial experience, and
they were required to meet relevant continuing legal education requirements.
Attorneys who failed to provide effective assistance to their clients or failed
to demonstrate a satisfactory level of professionalism were subject to
discipline, including removal from the system. Finally, fees earned were
subject to peer review for reasonableness by a panel of representatives from
PD-11, the County Attorney and the FACDL.
PD-11 operated “The Wheel” from 1992 until 2004. During that period, 500
attorneys participated and 5,000 court appointments were assigned yearly. By
contrast with its predecessor system that was abandoned in disgrace in 1992,
“The Wheel” was operated scandal-free, while providing higher quality
representation and saving millions in taxpayer dollars.
In November 2006, The Miami Herald revealed that the state attorney’s office,
in conjunction with the clerk’s office, had been falsifying the criminal
records of defendants who had agreed to cooperate with the state. Dan
Christensen & Patrick Danner, Bogus Dockets Shield Informants, The Miami
Herald, Nov. 18, 2006, at A1. Shortly thereafter, the state attorney sought
rules of procedure to legalize this behavior. PD-11, acting through the Florida
Public Defender Association, filed comments and argued in the Supreme Court of
Florida, and worked through the rules committees to create procedures that will
ensure the integrity of court files, while not revealing the identities of
confidential informants. In re Amendments to Florida Rule of Judicial Admin.
2.420-Sealing of Court Records and Dockets, 954 So. 2d 16 (Fla. 2007)
(sending issue back to rules committees for further review).
In the early 1980s, PD-11 filed a class action lawsuit against then Department
of Health and Rehabilitative Services (HRS) and Dade County Public Schools
(DCPS) for overcrowding and lack of educational services at the Juvenile
Detention Center. DCPS agreed to create a school in the detention center, and
the complaint was voluntarily dismissed. HRS also expanded the size of the
detention center to create more beds and services.
In 1982, PD-11 applied for and
received a federal grant to create the Right to Treatment Unit in the Juvenile
Division. This unit consisted of social workers whose primary functions were to
evaluate the developmental and mental health needs of juvenile clients and to
ensure adequate and proper treatment. Services continued, funded from PD-11
funds when the grant expired.
In 1990, in M.E. v. Chiles,
Case No. 90-1008-CIV-MOORE, a class action suit filed in federal district
court, PD-11 worked closely with Legal Services of Greater Miami to identify
delinquent children committed to state custody whose mental health needs were
not being met.
In 1991, PD-11 worked to
ensure Dade County Public Schools complied with the Individuals with
Disabilities in Education Act when dealing with the special educational needs
of detained and committed children. This involved negotiations with the Dade
County Public School’s attorney office and civil rights compliance office.
In 1998, PD-11 applied for and
received federal funds to create the Juvenile Alternative Sentencing Project.
In this project, social workers and attorneys specialized in advocating for
juvenile sanctions for juvenile clients transferred into the adult system. This
project has continued, funded by PD-11 after the federal funding expired.
shackling of children in courts was an all too common Florida and nationwide
practice. In many Florida counties, shackling had been going on since the
1980’s. In Miami, it started in the early 1990’s. Children were treated as enemy
combatants in court, dressed in bright orange or brown jumpsuits, wearing metal
handcuffs, a belly chain connected to the handcuffs, and metal leg shackles.
Unlike jailed adult defendants, securely detained children were chained and
shackled in the courtroom regardless of age, size, gender or alleged offense,
without a finding of dangerousness or risk of flight. Pregnant girls and
children with epilepsy had been shackled, all in the name of courtroom security.
Shackling was not limited to delinquency cases. Even the detained “cross-over”
children (those with a delinquency offense who also had a dependency case
because a parent abused, neglected or abandoned the child) were brought to
dependency court hearings in chains and shackles to face the parent who was
accused of abusing, neglecting or abandoning the child.
Florida’s blanket shackling practice was not authorized by statute,
administrative or court rule, or Department of Juvenile Justice regulations. At
the Miami-Dade Public Defender’s Office (PD-11), we knew that previous
challenges to indiscriminate shackling in Florida had failed. Despite that,
PD-11 formulated a broad-based legal challenge. With help from the National
Juvenile Defender Center and expertise from the medical, psychological,
therapeutic jurisprudence, and international law fields, PD-11 filed hundreds of
motions to unchain the children. We notified the media and worked with editorial
boards. We also filed legislation, and secured support from the faith community,
The Florida Bar, the Miami-Dade County Commission, and two statewide child
advocacy organizations–Florida’s Children First and The Children’s Campaign.
In September 2006, a courageous juvenile court judge, William Johnson, made the
first individualized findings and children began to appear before him unchained,
unshackled. Soon after, the other three juvenile judges followed suit. PD-11’s
success instigated other defender offices throughout Florida and other states to
join the challenge. PD-11 has supported and guided their efforts.
The move to end indiscriminate shackling initiated by PD-11 gained support
outside the courtroom. The Florida Bar Board of Governor’s unanimously supported
the Legal Needs of Children Committee’s effort to eliminate indiscriminate
shackling. Florida’s Juvenile Rules Committee proposed a rule that would
strictly limit the use of restraints in juvenile court. Surprisingly, despite
gaining wide support, in almost all Florida juvenile courtrooms, other than in
Miami-Dade County, children still appeared in chains.
Statewide shackling reform was finally achieved when the Florida Supreme Court
adopted the proposed court rule effective January 1, 2010. Under the new rule
shackling would be allowed only if the judge finds it necessary to prevent
physical harm to the child or others; the child has a history of disruptive
behavior; there is “founded belief” the child is a flight risk; and there are no
less restrictive alternatives, such as the presence of law-enforcement officers.
In Miami-Dade County, 10 years after the first child was unshackled, more than
30,000 detained children have appeared in court, and few have been determined to
be a flight or safety risk to justify shackling. We have not had courtroom
escapes or injuries. Despite seeing a high number of detained children in court
each day, our judges dispense justice one-child-at-a-time, without additional
To view the motions, appendices, photographs, news articles and editorials,
please visit our website www.pdmiami.com/unchainthechildren.htm.
Approximately 100 children per month were not receiving detention hearings
within 24 hours of their being taken into custody, contrary to Florida law.
Some children were held by the arresting agency for 24 hours before they were
even taken to the Juvenile Assessment Center for processing. PD-11 filed
motions daily for several weeks requesting that these children be brought
before the courts for an immediate hearing or immediately released. After PD-11
filed eight emergency writs, the appellate court, in D.M. v. Dobuler,
947 So. 2d 504 (Fla. 3d DCA 2006), ruled that all children must receive a
detention hearing within 24 hours. Now, all arrested children are afforded
prompt detention hearings. Return
PD-11 files numerous writs each year to ensure that judges do not detain
children in violation of statutory requirements. Since 2000, the appellate
court has granted more than thirty writs of habeas corpus filed by PD-11
attorneys. These writs challenged court orders to have children detained in
secure detention pending trial, probation violation hearings, and placement
into a commitment program. In each case, the appellate court ordered the
child’s release from secure detention as the statutory detention requirements
were not satisfied.
Omar Paisley was a 17-year old boy with one arrest in his life—due to a fight
with another boy. In exchange for not having his case sent to adult court, Omar
pled guilty in juvenile court. Omar was at the Juvenile Detention Center when
he died an inexcusable death of a ruptured appendix after weeping and begging
for medical attention for three days. He died June 9, 2003, in a plastic chair,
outside his room, in front of twenty other children who witnessed the pain and
the callous lack of treatment, before Emergency Medical Treatment was
The Department of Juvenile Justice (DJJ) and local police were ready to close
out Omar’s death without any further action. Omar had been our client.
Immediately following his death, PD-11 interviewed each eyewitness, preserving
their accounts before they were transferred. This was accomplished despite
DJJ’s efforts to deny normal attorney access to information. Ultimately, these
accounts went to the Grand Jury, the State Attorney’s Office and the lawyer for
the family of Omar Paisley. PD-11 inspected the log book entries for the
critical three days prior to Omar’s death, preserving the log information for
evidence. We demanded grief counseling for all the child witnesses. Public
Defender Bennett Brummer personally went to the facility and interviewed
children. He met with the highest officials of DJJ, demanding unrestricted
attorney access, repaired phone lines and medical accountability.
Mr. Brummer was the first public
official to call for a Grand Jury Investigation. PD-11 submitted dozens of
questions concerning the confinement conditions of the Juvenile Detention
Center to the Grand Jury which issued a scathing report, saying: “We are
appalled at the utter lack of humanity demonstrated by many of the detention
workers charged with the safety and care of our youth.” PD-11 cooperated with
the State Attorney’s investigation into criminal neglect, which led to the
indictment of two nurses. Fourteen detention workers were fired, the Secretary
and Deputy Secretary took leave of the department, and the state awarded
damages to the family of Omar Paisley. Importantly, Omar Paisley’s death led to
a remarkable overhaul of the department and positive detention reforms.
In 1997, the Pahokee Facility, originally designed as a 350-bed prison, was
transferred from the Department of Corrections to the Department of Juvenile
Justice (DJJ). The prison was re-labeled a juvenile delinquency moderate-risk
program, placing it on the same level as a halfway house. Of the 350 children
housed in Pahokee, 40 were from Miami-Dade. PD-11 immediately began receiving
alarming complaints from our clients housed at Pahokee. PD-11 attorneys made
several trips to the facility to investigate and collect evidence of neglect,
verbal and physical abuse, bug-ridden food, isolated despairing children with
almost no home contact, and an overall prison atmosphere. PD-11 filed motions
in the trial court claiming that Pahokee was not a moderate-risk program and
that moderate-risk children ought to be removed. The judge agreed with us,
calling the facility “a prison in all but name.” DJJ appealed, claiming only
DJJ could define what is a moderate-risk program. DJJ ultimately won the legal
battle, State, Department of Juvenile Justice v. E.R., 724 So. 2d 129
(Fla. 3d DCA 1998), but the Pahokee Facility abuses were exposed. DJJ canceled
its contract with the Pahokee vendor and ceased sending moderate-risk children
to the facility. The facility is now called the Sago Palm Youth Development
Center and is designated as a high risk program. Return
Some of the biggest challenges facing PD-11 today arise from recent amendments
to Florida’s “Sexual Offender” law. Effective July 1, 2007, children 14 years
of age and older who are adjudicated delinquent for committing sexual battery
and certain “lewd or lascivious” acts against other children are subject to a
lifetime “Sexual Offender” registration requirement. Their photographs and
personal information will be disseminated to various agencies and individuals
throughout the state, and will be posted on the Florida Department of Law
Enforcement website for world-wide viewing. This registration requirement
applies even to first-time offenders.
Experts agree that the new law will
impact low-risk teenagers who were never headed toward becoming adult sex
offenders. The terrible stigma of the “Sexual Offender” registration
requirement will undoubtedly foster peer and community rejection, isolation,
and increased anger, and will make it difficult for these children to stay in
the mainstream of society. In view of this result—which is diametrically
opposite the benevolent, rehabilitative ideal and strict confidentiality
otherwise underlying the juvenile justice system in Florida—PD-11 believes that
children charged with sex offenses should be afforded the same due process
protections that adult sex offenders are given. PD-11 will be litigating the
issue of whether the constitution requires jury trials for children charged
with sex offenses, an issue of first impression in this state, as well as other
issues that will undoubtedly arise during this first year of the new law’s
In 2007, PD-11, under the leadership of Chief Assistant Public Defender Carlos
Martinez, has developed Juvenile Justice CPR (Charting a Path to Redemption), a
project that proposes reforms to Florida’s juvenile justice system. Carlos
Martinez is also serving on Governor Crist’s newly created Blueprint Commission
on Juvenile Justice which will formulate needed juvenile justice reforms. To
learn more about these projects, visit our website at www.pdmiami.com/cpr.
In the mid-1990’s, a specialized collection court began jailing unrepresented
poor people for failing to pay child support even though they had no means to
pay. PD-11 successfully filed numerous habeas petitions to end these illegal
jail sentences. However, our mandamus petition filed with the appellate court
in a systemic attempt to rectify the situation was rejected, Smith v.
Rivkind, 659 So. 2d 282 (Fla. 3d DCA 1995), and so the practice of illegally
jailing poor people continued, as did PD-11’s practice of filing many habeas
petitions to secure their release.
Finally, PD-11’s efforts resulted in the appellate court taking action. It put
an end to the institutional practice while sharply criticizing the trial judges
involved. In Garcia v. Manning, 717 So. 2d 59, 60 n.3 (Fla. 3d DCA
1998), the support court was reprimanded for being “less than faithful to the
letter of the law” and for engaging in “a pattern of either purposeful misapplication
or, at best, willful ignorance of the law” prohibiting the deprivation of
liberty absent evidence of a parent’s present ability to pay. In Clark v.
Manning, 721 So. 2d 793, 795 (Fla. 3d DCA 1998), the appellate court
described as “abhorrent” the practice of jailing persons for failing to pay a
court-ordered amount the person is incapable of paying. The court called
debtor’s prisons the “most repugnant of institutions” and cautioned that
enforcing child support obligations must not be “perverted” in such a way as to
resurrect such prisons.
Since then, we have seen only a few cases where poor people were illegally
jailed due to an inability to pay child support. Each time, PD-11 has succeeded
in obtaining habeas relief.
In 2006, scores of PD-11’s clients who had been determined to be mentally
incompetent were being warehoused for months under barbaric conditions in the
psychiatric ward of the Miami-Dade County Jail. Although state law requires
transfer to a forensic hospital within 15 days after a determination of
incompetency, the state was refusing to comply, citing a lack of money or
PD-11 filed more than 30 mandamus
petitions on behalf of these clients, supported by affidavits from our expert witnesses
which established that the state’s refusal to hospitalize our mentally ill
clients was causing them to further deteriorate, and that these practices
violated international law regarding the treatment of sick detainees. In Hadi
v. Cordero, 955 So. 2d 17 (Fla. 3d DCA 2006), the court ultimately held
that, notwithstanding the state’s claim of inability to comply with its
statutory duty to treat our clients, it was required to do so under state law.
Working with a new, more cooperative governor’s office, we were able to more
promptly remedy this situation. The state legislature in special session
approved $50 million for additional forensic beds. Our mentally ill clients are
now being transferred to forensic hospitals within the statutory time limits. Return
PD-11 protects the rights of mentally ill clients before and after they are
incarcerated. In Brown v. Kearney, 778 So. 2d 541 (Fla. 3d DCA 2001),
the appellate court held that a trial court cannot order involuntary
hospitalization for a defendant awaiting trial who does not meet the criteria
for commitment, and that it must explore less restrictive mental health
treatment alternatives. Our appeal in E.F. v. State, 889 So. 2d 135
(Fla. 3d DCA 2004), applied the standard of “clear and convincing evidence” before
a person in state prison can be involuntarily committed to a mental health
This office’s work on behalf of its
mentally ill clients continues even when clients are found not guilty by reason
of insanity or when charges are dismissed. In Johnson v. Feder, 485 So.
2d 409 (Fla. 1986), Mr. Johnson was found not guilty by reason of insanity on
two separate murder charges. A few years later, he sought a hearing to
challenge his involuntary hospitalization. The trial court denied a hearing because
hospital medical staff recommended continuing hospitalization. The Florida
Supreme Court held that Mr. Johnson had a right under Florida’s statutes and
rules of criminal procedure to a judicial hearing, regardless of the
recommendation of hospital medical staff. Conversely, when criminal charges are
dismissed due to the unlikeliness that a defendant will regain mental
competency, PD-11 has successfully argued that the decision whether to release
our former clients rested exclusively with the hospital since there were no
pending criminal charges. State v. Heidrick, 707 So. 2d 1165 (Fla. 3d
DCA 1998) (en banc).
PD-11 continues to represent our
clients even after their cases are dismissed to ensure that they are no longer
treated as criminals. PD-11 represented a man who has been mentally retarded
since he contracted meningitis shortly after his birth. He was charged with a
crime stemming from a fight over allowance money in a group home. Because of
his mental condition, he could never be brought to trial. After the
statutorily-prescribed length of time, the criminal charges were dismissed, but
he nevertheless remained in a state institution.
Although the narrow issue in Everette
v. Florida Dept. Of Children and Families, 961 So. 2d 270 (Fla. 2007),
dealt with who would pay to transport our client, the Florida Supreme Court
acknowledged that the greater issue involved whether a person would be treated
as though he or she still had criminal charges pending long after all criminal
charges were dismissed. The Supreme Court of Florida agreed with PD-11’s
position that our client could not continue to be treated like a criminal once
all charges were dismissed.
PD-11 also represents mentally ill
people on appeal. We represented a man diagnosed with schizophrenia, organic
brain damage, and mental retardation who had pled guilty to a crime. He was
later sentenced to life in prison for returning home 30 minutes late while on
community control. The appellate court invoked the rarely used “manifest
injustice” doctrine to grant habeas relief, requiring that our client be
resentenced to no more than the seventeen-year cap in his original plea
agreement. Adams v. State, 957 So. 2d 1183 (Fla. 3d DCA 2006). Return
PD-11 was part of the coalition of attorneys that brought the litigation
eventually resulting in the United States Supreme Court’s seminal decision in Gerstein
v. Pugh, 420 U.S. 103 (1975). Before that litigation, persons arrested
languished in jail for weeks based on decisions of the police officers and the
state attorney. They were often not brought before a judge who could neutrally
evaluate the evidence against them to determine whether probable cause existed.
Gerstein v. Pugh, still included in textbooks and discussed in law
school classes, held that liberty could not depend on a mere determination by
police officers or state attorneys. From that decision until today, a judge has
had to determine if the state has enough evidence to hold a person. The state
itself cannot make that determination. PD-11 continues to bring actions to
enforce this law when it is violated. Blount v. Spears, 758 So. 2d 1287
(Fla. 3d DCA 2000).
The first appearance or “bond”
hearings created by Gerstein v. Pugh usually occur within twenty-four
hours after a person is arrested. At this hearing, the court informs the person
of the charges against them and sets the conditions for their pretrial release,
often a monetary bond. PD-11 continues to bring litigation to ensure this
twenty-four hour requirement is met. Vigoreaux v. Manning, 714 So. 2d.
610 (Fla. 3d DCA 1998).
We have also successfully challenged
restrictions that have been placed on a person’s eligibility for release at a
first appearance hearing. In State v. Raymond, 906 So. 2d 1045 (Fla.
2005), PD-11 challenged Section 907.041(4)(b), Florida Statutes, prohibiting a
person charged with a “dangerous crime” to be granted nonmonetary pretrial
release at a first appearance hearing. The Florida Supreme Court agreed that
the statute violated the separation of powers clause of the Florida
Constitution, because it was a procedural rule that regulated the timing of a
person’s eligibility for release on nonmonetary conditions. Return
Another important part of the first appearance hearing is the setting of the
conditions for pretrial release. The Florida Constitution contains a right to
release on reasonable bail except in a few specific situations. PD-11 has been
active in enforcing this right on behalf of clients. PD-11 usually litigates
these issues through petitions for habeas corpus. Following are a few examples
of the types of challenges brought by our office.
Refusing to set bonds
Setting excessively high bonds
Revoking bonds and nonmonetary pretrial release
Imposing illegal conditions of pretrial release
Seizure of cash bond from indigents to pay attorney fees
Administrative judges improperly interfering with setting of bond
Challenging the denial of bail pending appeal
In November, 2003, a summit of the Free Trade Association of the Americas
(FTAA) was held in Miami. PD-11 put together a task force of attorneys from the
trial, appellate, and administrative sections. The task force prepared
emergency writs to protect the rights of the hundreds of people that were expected
to be arrested in the protests against the FTAA. As people were arrested, the
writs were put to use to ensure that arrestees were given adequate and timely
hearings to determine conditions of release, and to challenge arrests due to
lack of probable cause, the setting of excessive bonds, and summary findings of
contempt. Out of hundreds of FTAA arrests, only one conviction resulted. Return
Approximately 1,000 persons a year are arrested in Miami-Dade County on solely
intrastate, immigration, and military holds. Before June 2007, these
individuals never appeared before a judge to be advised about their rights.
Some individuals sat in jail for one to two months before they were transferred
to the custody of the demanding authority. PD-11 was never notified if an
individual was solely arrested on an immigration, military, and/or other
Florida county hold. Therefore, an individual was only able to be advised about
their rights if they were successful in finding an attorney on their own
behalf. Due to our advocacy, beginning in June 2007, all persons arrested in
Miami-Dade County now receive a court hearing. Additionally, all indigent
persons held in custody receive the advice and/or representation of an
Before PD-11 took action, the Miami-Dade County Corrections and Rehabilitation
Department indefinitely detained individuals who had immigration holds, until
Immigration and Custom Enforcement came to pick them up from the jails. Many
individuals were detained several weeks on immigration holds, and some were
detained two months or longer. Federal law, however, only allows Miami-Dade
County to detain individuals on an immigration hold for 48 hours excluding
Saturdays, Sundays, and holidays. After PD-11 filed numerous habeas petitions,
Miami-Dade County agreed to release all individuals on immigration holds as
soon as this 48-hour period expires.
At first appearance hearings, the court is required to determine if the person
is indigent and, if so, appoint the Public Defender’s Office. At one time, the
court was appointing the Public Defender’s Office for everyone at bond
hearings, but only for the first appearance hearing. That resulted in indigent
persons being unrepresented by counsel in the days immediately following the
bond hearing. This time-frame is crucial because witnesses’ memories are
fresher and physical evidence can still be preserved.
In Office of Public Defender v.
State, 714 So. 2d. 1083 (Fla. 3d DCA 1998), the appellate court agreed with
PD-11 that the court’s practice was illegal and that indigent clients had the
right to the uninterrupted assistance of counsel following their first
appearance hearing. In Ull v. State, 613 So. 2d 928 (Fla. 3d DCA 1993),
PD-11 also successfully argued that, once the Public Defender’s Office is
properly appointed in misdemeanor cases, the trial court lacks authority to
discharge it on the date of trial by certifying no jail sentence would be
sought on a finding of guilt. This decision was later quashed by State v.
Ull, 642 So. 2d 721 (Fla. 1994). In doing so, however, the Florida Supreme
Court emphasized that the defendant can successfully block the discharge of
counsel by showing substantial disadvantage due to loss of counsel.
Challenging Uncounseled Plea Practice in Misdemeanor
PD-11 has a long-standing effort to keep persons out of jail who were
unrepresented at the time they pled guilty. This situation commonly arose from
Driving Under the Influence cases, where the court would call multiple
defendants before it, issue orders of no imprisonment saying the defendants
will not be put in jail, and encourage these now uncounseled defendants to
plead guilty in exchange for the minimum mandatory sentences. These persons are
usually willing to accept these pleas because they did not have the skills to
defend themselves, and the plea offer did not involve any time in jail. These
pleas did include, however, a period of probation. Statistically, a large
percentage of these people will violate the conditions of their probation, at
which point the court sentences them to jail despite the order of no
imprisonment it previously issued. In Tur v. State, 797 So. 2d 4 (Fla.
3d DCA 2001), the appellate court agreed with PD-11’s position that such
incarcerations were illegal.
Recently, PD-11 has also been successful in challenging recidivist sentencing
under the habitual misdemeanor offender statute where the prior convictions
were based upon uncounseled guilty pleas.
A related issue was the court’s
practice of issuing an order of no imprisonment, while holding an indigent
person in jail on a monetary bond the person could not afford. That left the
citizen in jail pending a trial without a lawyer and with no way to defend the
case. The court knew that these people would plead guilty as soon as the case
was heard because they did not have the skill to represent themselves. The
court also knew that these people would have to be released from jail as soon
as the plea was entered because of the order of no imprisonment. Therefore, the
court would set the case for trial several weeks in the future, depending on
how long the judge wanted the person to stay in jail. All of this was to avoid
giving poor persons an attorney and a chance to defend themselves. PD-11
challenged this abuse of orders of no imprisonment as illegal, and in Hardy
v. State, 776 So. 2d 962 (Fla. 3d DCA 2000), the appellate court agreed
with us. Subsequently, PD-11, through the Florida Public Defender Association,
sought and obtained from the Supreme Court of Florida a change in the rules of
procedure to avoid these abuses of orders of no imprisonment. Amendments to the
Florida Rules of Criminal Procedure, 837 So. 2d 924 (Fla. 2002). Return
When necessary to protect our clients’ rights, PD-11 will raise claims of ineffective
assistance of counsel, as the next two cases illustrate.
Ruel Lanier was charged with strong-arm robbery. The victim, whose purse had
been stolen, told police the perpetrator was at least six feet tall, weighed
over 230 pounds, and had left in a car. Mr. Lanier was a passenger in a car
driving through a school parking lot a short distance away when the car was
stopped. None of the stolen items were found in the car. Police, who had seen
the car before it was stopped, did not see anything being thrown out the
windows. Mr. Lanier was five feet nine inches tall and weighed 185 pounds.
Nevertheless, the victim identified him as the robber. The driver of the car
and a student at the school had given depositions and were ready and willing to
testify that Mr. Lanier was there only because the driver was supposed to be
picking up the student and had picked Mr. Lanier up along the way, thus
explaining his presence in the area. Inexplicably, his privately retained attorney
did not call those alibi witnesses to testify at trial.
Following Mr. Lanier’s conviction
and its affirmance on direct appeal, Lanier v. State, 635 So. 2d 26
(Fla. 3d DCA 1994), PD-11 filed a motion for postconviction relief, arguing
that trial counsel was ineffective in failing to call the alibi witnesses. That
motion was denied, and the appellate court, in an en banc decision, affirmed
the denial of relief because it concluded that our office had not shown the
result of the proceeding would have been different if the alibi witnesses had
been called. Lanier v. State, 709 So. 2d 112 (Fla. 3d DCA 1998).
PD-11 then petitioned for federal
habeas relief and won. (Case No. 99-1275-CIV). The federal district court found
that the appellate court misapplied the law, because the constitutional
standard required only a reasonable probability that the result would have been
different. The federal court further found that the failure to call the alibi
witnesses was deficient performance by the trial attorney, and that there was a
reasonable probability that Mr. Lanier would have been acquitted if the alibi
witnesses had testified.
The state chose not to retry Mr.
Lanier. Finally, eight years after his conviction, he was freed.
Antonio Perez was represented by a private attorney at trial, and was
convicted. His attorney misrepresented to the court that he had filed a notice
of appeal, but in fact he had not done so. As a result, Mr. Perez never
received a direct appeal.
PD-11 filed a motion for
postconviction relief on behalf of Mr. Perez, claiming that his attorney was
ineffective in failing to protect Mr. Perez’s appellate rights. The state trial
and appellate courts denied relief, so PD-11 filed a habeas corpus petition in
the federal district court, which granted relief and ordered the state to give
Mr. Perez a belated appeal of his conviction. Perez v. Wainwright, 440
F. Supp. 1037 (S.D. Fla. 1977).
The state appealed, and the federal
appellate court reversed, finding that the actions of Mr. Perez’s private
attorney did not result in fundamental unfairness. Perez v. Wainwright,
594 F. 2d 159 (5th Cir. 1979). PD-11 then went to the United States Supreme
Court, which granted our petition for a writ of certiorari and ordered the
federal appellate court to reconsider its decision. Perez v. Wainwright,
447 U.S. 932 (1980).
This time, the federal appellate
court granted relief to Mr. Perez, saying that “when a lawyer . . . does not
perform his promise to his client that an appeal will be taken, fairness
requires that the deceived defendant be granted an out-of-time appeal.” Perez
v. Wainwright, 640 F. 2d 596 (5th Cir. 1981), citing Perez, supra,
594 F. 2d at 163.
In 1979, PD-11 was appointed as lead counsel in 80 consolidated cases in which
people were charged with operating cars at excessive speeds, based solely on
radar devices. We filed motions to exclude the radar results as too unreliable
to support the charges.
Our office presented extensive
testimony from numerous highly trained experts in multiple scientific
disciplines to establish the inaccuracy of the radar devices. Our evidence
included instances in which the radar devices registered roadside houses and
trees speeding, and a telephone sitting on an attorney’s desk traveling at over
70 miles per hour.
PD-11’s motions to exclude the radar
results were granted. The court found many errors were caused by inadequacies
in the design and manufacture of the radar devices, and poor police training on
the use of these devices. PD-11’s work on this case received widespread
international news coverage and publicity.
Challenging Junk Science
As part of PD-11’s continuing effort to eliminate junk science, we won the the landmark
capital case of Ramirez v. State, 810 So. 2d 836 (Fla. 2001). A police
criminalist testified that he could tell a knife linked to the defendant was
the only knife in the world that could have caused the victim’s wounds. He
claimed this was a subjective judgment that could not be demonstrated to jurors
or checked by outsiders. The Supreme Court of Florida determined: “The
procedure is a classic example of the kind of novel ‘scientific’ evidence that
Frye was intended to banish—i.e., a subjective, untested, unverifiable
identification procedure that purports to be infallible.” The Court reversed
the murder conviction, and issued an opinion re-establishing that scientific
rigor must be demonstrated before evidence will be admissible in Florida. Id.
PD-11 has challenged the reliability of fingerprint evidence in State v.
Armstrong, 920 So. 2d 769 (Fla. 3d DCA 2006), which involved a burglary
where the only evidence linking the defendant to the crime was a partial thumb
print. The defense listed Dr. Simon Cole of the University of California at
Irvine as an expert witness. Dr. Cole has written an award-winning book on the
history of fingerprint evidence, in which he concluded that the reliability of
fingerprint evidence had never been scientifically tested, and thus no error
rate had ever been established for it. At a Frye hearing, PD-11 argued that
where fingerprint examiners routinely testify that they are 100% certain they
have a match, the defendant has a right to present his own expert challenging
the weight to be given to that testimony. We prevailed in the trial court.
However, the state challenged this ruling in the appellate court which held
that Dr. Cole’s testimony was not relevant because he would not be testifying
about the actual fingerprints admitted.
Back in the trial court, however,
the case fared better. The assistant public defender’s cross-examination of the
fingerprint examiner brought out the unscientific nature of fingerprint
“science,” and the jury acquitted. Since Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), courts have been stubbornly
resistant to the many challenges to the reliability of fingerprint evidence
that have been raised. In this case, at least, a jury was more open-minded than
most courts have been.
Florida law requires a citizen to blow into an Intoxilyzer breath-alcohol
testing machine if the arresting officer believes that the person may have been
driving under the influence of alcohol. The machine then reports a
breath-alcohol number, which the state can later introduce into evidence. These
breath-alcohol numbers potentially lead to jail and the loss of a driver’s
license. Unlike an expert witness, however, a machine cannot be cross-examined
to determine the methodology of arriving at that result. To prepare for trial,
defendants must be given the opportunity to examine the machine’s operator manuals,
maintenance manuals and engineering schematics, in the hope of uncovering the
methodology used to arrive at a breath alcohol reading.
In March 2006, PD-11 joined with a
consortium of defense attorneys led by two private attorneys, in a motion to
compel the state to produce the computer program for this machine. The court
found that the state did not have the computer program that produces this
number. We are continuing to seek the computer program in the courts by filing
subpoenas for the production of the program and witnesses from the
PD-11 has challenged Florida’s habitual offender statute’s violation of Florida
and federal equal protection guarantees based on the prosecutor’s racially
discriminatory application. We studied many thousands of trial files and
employed experts in logistic regression analysis to determine whether race was
a factor in a prosecutor’s decision to seek a habitualized sentence. Although
experts concluded that race was a significant factor in prosecutorial
discretion to seek enhanced sentencing generally, this challenge failed due to
the absence of proof that a prosecutor intended to employ race as a sentencing
factor in any individual case. Miller v. State, 651 So. 2d 138 (Fla. 3d
DCA), review denied, 659 So. 2d 1087 (1995).
PD-11 successfully argued before the Florida Supreme Court that Hispanics are a
cognizable ethnic group for purposes of precluding peremptory challenges solely
on the basis of their ethnicity. State v. Alen, 616 So. 2d 452 (Fla.
1993). PD-11 has also successfully argued that the prosecutor’s striking of a
Haitian-American juror based on her proficiency in the Creole language was a
surrogate for racial and ethnic discrimination. Despio v. State, 895 So.
2d 1124 (Fla. 3d DCA 2005).
In Dorsey v. State, 868 So.
2d 1192 (Fla. 2003), PD-11 successfully argued that when a party asserts that a
prospective juror’s nonverbal behavior (a showing of disinterest, for example)
is a reason for its peremptory strike, and the existence of the nonverbal
behavior is disputed by opposing counsel, the behavior must be observed by the
trial court or otherwise supported by the record for the reason to be
considered neutral and genuine. The judge may not simply rely upon counsel’s
assertion because he is an officer of the court.
PD-11 further successfully argued,
in Turnbull v. State, 959 So. 2d 275 (Fla. 3d DCA 2006), that the state
is not allowed to strike black jurors based upon their responses to the state’s
questions concerning racial profiling, where racial profiling is neither
brought up by the jurors nor relevant to a defense. The mere term “racial
profiling” can engender a visceral response from black jurors, and the state
may not seize upon that response as a race neutral or genuine justification for
a peremptory strike.
Finally, in Whitby v. State,
933 So. 2d 557 (Fla. 3d DCA 2006) and Pickett v. State, 922 So. 2d 987
(Fla. 3d DCA 2005), PD-11 successfully challenged the trial court’s failure to
conduct an inquiry pursuant to State v. Neil, 457 So. 2d 481 (Fla. 1984
when the opponent of a peremptory strike objects that the strike of a
cognizable minority was motivated by discrimination. These cases are now before
the Florida Supreme Court on certified questions regarding whether the simple
inquiry rule, which requires the trial court to request a neutral reason from
the striking party upon proper objection, should revert back to the cumbersome
prima facie standard for peremptory jury challenges.
The public defender also represents persons facing civil commitment as
“sexually violent predators” under Chapter 394 of the Florida Statutes. The
concept of committing someone after their prison sentence has expired is a new
and troubling use of civil commitment laws. These cases have spawned a host of
In some of these cases, the state
has filed petitions for commitment, thereby depriving these persons of their
liberty, even though the state’s own team charged with making these
determinations has not agreed that these persons should be committed. PD-11
opposed this practice and the appellate court ruled that it was illegal. Harden
v. State, 932 So. 2d 1152 (Fla. 3d DCA 2006). PD-11 has also litigated
pretrial discovery issues caused by the prosecutor’s interference with the
team’s decision. State v. Donaldson, 763 So. 2d 1252 (Fla. 3d DCA 2000).
PD-11 has litigated the question to
whom does the statute apply. Ward v. State, 936 So. 2d 1143 (Fla. 3d
DCA) rev. granted 939 So. 2d. 96 (Fla. 2006); Washington v. State,
866 So. 2d 725 (Fla. 3d DCA 2004); State v. Siddal, 772 So. 2d 555 (Fla.
3d DCA 2000). PD-11 has maintained that some of these commitments violate plea
agreements calling for out-patient sexual offender treatment while on
probation. Murray v. Regier, 872 So. 2d 217 (Fla. 2002); Ortega-Mantilla
v. State, 898 So. 2d 1164 (Fla. 3d DCA 2005); Acosta v. State, 784
So. 2d 1137 (Fla. 3d DCA 2000); Murray v. Kearney, 770 So. 2d 273 (Fla.
4th DCA 2000).
These civil commitment cases often
involve psychiatrists relying on information from cases or arrests from the
distant past. The accuracy of those records, many of which were never subject
to cross-examination in court, is a serious problem that PD-11 has litigated
vigorously. Pesci v. State, 32 Fla. L. Weekly D1721 (Fla. 3d DCA July
18, 2007), available at 2007 WL 2043423. PD-11 has also challenged the state’s
burden of proof in these cases. State v. Bryant, 901 So. 2d 381 (Fla. 3d
In specific cases, PD-11 has also
challenged the sufficiency of the state’s evidence to meet the constitutional requirements.
Donaldson v. State, 888 So. 2d 107 (Fla. 3d DCA 2004). Finally, PD-11
has challenged the adequacy of the standard jury instructions, both in specific
cases and when they were promulgated. Standard Jury Instructions-Criminal Cases
(99-2), 777 So. 2d 366 (Fla. 2000); Pearson v. State, 888 So. 2d 110
(Fla. 3d DCA 2004); Donaldson v. State, supra.
Recently, people with prior convictions for sexual offenses have been required
to register as sexual offenders or sexual predators. PD-11 litigates to remove
these labels when they are incorrectly applied. Sanchez v. State, 875
So. 2d 1285 (Fla. 3d DCA 2004); Maceo v. State, 870 So. 2d 852 (Fla. 3d
DCA 2003); State v. Colon, 820 So. 2d 420 (Fla. 3d DCA 2002).
PD-11 has also challenged these
statutes on behalf of clients for whom this public branding is unjust. In one
of the leading cases, our client was in a club when another man bought a mutual
female friend a drink. She drank half of it, and gave the client the rest. The
drink was spiked and they both blacked out as they were leaving the club. The
other man took them to a hotel room. The police eventually charged both men
with the sexual assault, and our client pled guilty and agreed to testify
against the man who drugged him and his friend. Under the law, our client was
automatically labeled a “sexual predator” even though the victim was never
afraid of him, still considered him a friend, and was upset that the state had
prosecuted him. We argued that due process required that he receive a hearing
to determine whether he was a danger to the community before branding him a
“sexual predator.” The appellate court agreed that he should receive a hearing.
Espindola v. State, 855 So. 2d 1281 (Fla. 3d DCA 2003). The Supreme
Court of Florida later disagreed. Milks v. State, 894 So. 2d 924 (Fla.
2005). In a bitter footnote, our client was deported because of this conviction
before he could testify against the man who drugged the drink. Without his
testimony, the true perpetrator walked free without any “sexual predator” label.
PD-11 has continued to raise other
constitutional arguments on behalf of persons labeled as sexual predators or
offenders. Garcia v. State, 909 So. 2d 971 (Fla. 3d DCA 2005); Reyes
v. State, 911 So. 2d 202 (Fla. 3d DCA 2005); Navarro v. State, 888
So. 2d 144 (Fla. 3d DCA 2004); Gonzalez v. State, 808 So. 2d 1265 (Fla.
3d DCA 2002). PD-11 has also litigated motions to vacate guilty pleas taken
where the person did not know the plea would result in the labeling,
registration, and public notification requirements. Delarosa v. State,
913 So. 2d 76 (Fla. 3d DCA 2005).
In a related development, the county
and many municipalities have enacted ordinances prohibiting persons labeled as
sexual predators or offenders with minor victims, from living within a half
mile of various locations such as schools, parks, school bus stops, day care
centers. The net effect is virtual banishment, with some people living under a
bridge because that it is the only place they could go without violating one of
these ordinances. PD-11 has challenged the county ordinance because it purports
to impose a penalty of up to a year in jail, when state law limits ordinance
violations to 60 days. PD-11 is also in the process of raising broader
constitutional challenges to these ordinances.
In 2002, Assistant Public Defender Stephen Harper, on a leave of absence,
served as the Coordinator of the Juvenile Death Penalty Initiative, a coalition
of organizations (including the American Bar Association) whose sole purpose
was to eliminate capital punishment for 16- and 17-year-old offenders. That
work involved coordinating state legislative efforts, consulting on actual
cases, securing the involvement of more organizations and entities (e.g. the
American Medical Association, the American Psychiatric Association, the
European Union, and the Carter Center), and working with the press. He
coordinated the drafting and filing of amicus briefs in the case of Roper v.
Simmons, 543 U.S. 551 (2005) which held that the Eighth and Fourteenth
Amendments forbid imposition of the death penalty on persons who were under the
age of 18 when their crimes were committed. He also served as an advisor to
counsel for Simmons.
PD-11 joined other capital defenders, postconviction lawyers and advocates for
the mentally retarded in helping to shape the rules governing claims of mental
retardation in capital cases. In 2001, the Florida Legislature banned the
execution of the mentally retarded. The following year, the United States
Supreme Court declared the execution of mentally retarded defendants to be
unconstitutional in Atkins v. Virginia, 536 U.S. 304 (2002). PD-11
joined other advocates in arguing that the question of whether a defendant was
mentally retarded should be determined before trial, rather than after trial as
required by the legislature. This office argued that postponing this
determination until after a capital trial would present a grave risk that
innocent mentally retarded defendants would plead guilty to escape the death
penalty. Pretrial determinations would also save the public the expense of
preparing and trying a capital case where the defendant is ineligible for the
death penalty. The Supreme Court of Florida ultimately accepted these arguments
and promulgated rules providing for a pretrial hearing to determine mental
PD-11 joined a coalition of public defenders and other death penalty opponents
to successfully challenge Florida’s Death Penalty Reform Act of 2000 (DPRA).
The DPRA was an ill-considered attempt to fast-track death penalty appeals by
creating a “dual track” system, whereby the direct appeal and postconviction
proceedings would take place at the same time. This would have resulted in
wasteful and unnecessary postconviction actions in cases that were reversed on
direct appeal. The legislation also would have forced postconviction counsel to
go forward without access to vital public records, and would have prevented
counsel from presenting claims that did not become ripe until later in the
review process. The Supreme Court of Florida found the DPRA to be
unconstitutional, in Allen v. Butterworth, 756 So. 2d 52 (Fla. 2000), on
the basis that it violated separation of powers.
PD-11 assisted the Wrongful Conviction seminar run
by Professor Jonathon Simon then at the University of Miami Law School in 1993.
Working under a very short statutory deadline allowing for DNA postconviction
testing, PD-11 screened and reviewed many closed appellate cases for potential
DNA issues that would then be acted upon by Nova University’s Innocence
In addition to institutional challenges, PD-11 has had a number of successes
challenging the death penalty in individual cases, in both state and federal
courts, including the following cases.
In Garcia v. State, 816 So.
2d 554 (Fla. 2002), numerous errors required reversal of murder convictions and
the death penalty, including (1) refusal to allow the defendant to impeach a
key state witness with unsworn inconsistent statements; (2) refusal to allow,
in the guilt and penalty phases, the accomplice’s testimony, at his separate
trial, that he alone had committed the murders; and (3) allowing bad character
testimony from a witness that he did not trust the defendant and did not want
to be alone with him.
In Ramirez v. State, 810 So.
2d 836 (Fla. 2001), a police crime technician was allowed to testify that his
newly formulated knife mark identification procedure was infallible and enabled
him to identify the murder weapon, to the exclusion of every other knife in the
world. In ordering a new trial, the court called the knife mark identification
procedure “a classic example of the kind of novel ‘scientific’ evidence that
Frye was intended to banish—i.e., a subjective, untested, unverifiable
identification procedure that purports to be infallible. The potential for
error or fabrication in this procedure is inestimable. In order to preserve the
integrity of the criminal justice system in Florida, particularly in the face
of rising nationwide criticism of forensic evidence in general, our state
courts—both trial and appellate—must apply the Frye test in a prudent manner to
cull scientific fiction and junk science from fact.” Id. at 853.
In Johnson v. State, 750 So.
2d 22 (Fla. 1999), the defendant and a codefendant were tried together before
one jury. When the codefendant was presenting mitigating evidence during the
trial’s penalty phase, Johnson and his counsel were excused. The codefendant’s
mitigating evidence included claims that Johnson had manipulated him. The
Florida Supreme Court held that the codefendant’s presentation of mitigating
evidence was a critical stage of Johnson’s penalty phase hearing, so his
absence without a knowing and voluntary waiver required a new sentencing
hearing. On remand, Mr. Johnson received a life sentence.
In Walker v. State, 707 So.
2d 300 (Fla. 1997), the trial court erred in rejecting the nonstatutory
mitigator of Walker’s abusive childhood and in failing to consider numerous
nonstatutory “positive” mitigators that Walker was honorably discharged from
the military; was gainfully employed; had family members who testified to his
good qualities; and was a deacon in his church. “This Court has repeatedly held
that all mitigating evidence, found anywhere in the record, must be considered
and weighed by the trial court in its determination of whether to impose a
sentence of death.” The Florida Supreme Court remanded the case for a new
sentencing hearing at which PD-11 attorneys secured the defendant a life
In Manso v. State, 704 So. 2d
516 (Fla. 1997), the defendant, while testifying in the penalty phase, threw a
microphone at the prosecutor, then got down on the floor and began screaming
and shaking violently. Two psychologists evaluated him and recommended that he
be involuntarily hospitalized for observation. The trial judge, though, refused
to grant a continuance to determine Manso’s competency. The Florida Supreme
Court reversed the death sentence as the judge abused her discretion in failing
to grant a continuance so that Manso could be observed in a hospital setting.
In King v. State, 623 So. 2d
486 (Fla. 1993), on direct appeal of a death sentence, the Florida Supreme
Court reversed for a new sentencing hearing because during his penalty phase
closing argument, the prosecutor gave a dissertation on evil, admonishing the
jurors that if they recommended life imprisonment instead of death, they would
be “cooperating with evil and would themselves be involved in evil just like”
In Brown v. State, 521 So. 2d
110 (Fla. 1988), an erroneous ruling by the trial judge terminating the penalty
phase trial and sentencing the defendant to life imprisonment acted as an
acquittal of the death penalty. The State could not successfully challenge the
erroneous ruling because double jeopardy prevented a retrial on the death
In Jackson v. Dugger, 837 F.
2d 1469 (11th Cir. 1988), the Eleventh Circuit remanded the case for a new
sentencing hearing, where the jury was instructed that death was presumed to be
the proper sentence when aggravating circumstances were found, unless they are
overridden by mitigating circumstances. The federal circuit court held that
this instruction denied the defendant the individualized sentencing
determination required by the Eighth Amendment.
In Hargrave v. Dugger, 832
F.2d 1528 (11th Cir. 1987), the Eleventh Circuit vacated the death sentence as
the jury was not permitted to consider non-statutory mitigating circumstances.
In Perri v. State, 441 So. 2d
606 (Fla. 1983), the death sentence was reversed where the trial court denied
the defense request for a psychiatric evaluation prior to the penalty hearing.
Although the defense of insanity was not raised, defendant’s testimony before
the hearing that he had been in mental institutions should have been enough to
trigger an investigation as to whether the mental condition of the defendant
interfered with, but did not obviate, his knowledge of right and wrong. A
person who is legally sane may still have an impaired mental state that can
form the basis for a jury recommendation of life.
In Scott v. State, 420 So. 2d
595 (Fla. 1982), a murder conviction and sentence of death were vacated because
the trial court did not grant a psychiatric evaluation of the defendant or
order a competency hearing prior to trial, even though there was ample evidence
that the defendant might have been incompetent and unable to assist his counsel
in the preparation of a defense.
In Menendez v. State, 419 So.
2d 312 (Fla. 1982) (Menendez II), a death sentence was not
appropriate where murder was not premeditated, was not done execution-style,
and where the defendant had no significant criminal history.
In Sturdivan v. State, 419
So. 2d 300 (Fla. 1982), the trial court’s refusal to instruct on lesser
included offenses required a new trial.
In Bryant v. State, 412 So.
2d 347 (Fla. 1982), the murder conviction and sentence of death were reversed
because the trial court refused to instruct the jury on “independent act” under
the felony-murder doctrine, where there was evidence from which the jury could
have concluded that the victim’s death resulted from the accomplice’s act of
committing sexual battery after defendant withdrew from the common robbery
In Valle v. State, 394 So. 2d
1004 (Fla. 1981), the conviction and death sentence for murder of a police
officer had to be vacated because the trial judge required the defendant to go
to trial within 24 days of his arraignment, thus resulting in the denial of the
effective assistance of counsel.
In Brown v. State, 367 So. 2d
616 (Fla. 1979), on direct appeal of a death sentence, the Florida Supreme
Court vacated the death sentence and remanded for imposition of a life sentence
where the jury had recommended life imprisonment. PD-11 continued to pursue
relief for our client in federal court. In Brown v. Dugger, 831 F. 2d
1547 (11th Cir. 1987), habeas corpus relief was granted by the federal district
court and affirmed by the federal court of appeals because Brown was denied the
right to confront witnesses against him when a detective was allowed to testify
about hearsay statements made by an accomplice, and the prosecutor, in closing
argument, commented on Brown’s silence, in violation of the Fifth Amendment.
In Menendez v. State, 368 So.
2d 1278 (Fla. 1979) (Menendez I), the death sentence was vacated and the
case was remanded for another sentencing hearing where the trial judge
improperly considered non-statutory aggravating factors.
In Riley v. State, 366 So. 2d
19 (Fla. 1978), the death sentence was vacated and the case remanded for
another sentencing hearing where the trial judge had improperly considered
non-statutory aggravating factors, and found statutory aggravating factors
unsupported by the evidence.
A wide range of problems are susceptible of being remedied by extraordinary
writs. The underlying principle is immediate access to appellate review to
enforce the law. PD-11 routinely utilizes these writs, which include habeas
corpus, mandamus, prohibition, and certiorari. Below are a few examples of this
type of litigation.
Refusal of judge to grant recusal where bias is reasonably questioned
Perpetual reassignment of misdemeanor court judges to hear felony cases
Establishment of a local domestic violence court
Protecting right of public defender clients to independent counsel when the
public defender has an ethical conflict
Enforcing plea agreements on behalf of clients
Challenging state’s ability to appeal adverse decisions
Protecting client’s right to judicial review of administrative decisions
affecting parole release date
Challenging use of earlier, uncounseled convictions in subsequent parole
Pursuing repayment to client of fines and costs paid before conviction
reversed on appeal
Challenging extradition of clients to other states
Challenging court’s refusal to follow rule authorizing counsel to submit written
plea of not guilty in lieu of client’s
appearance at arraignment
Supporting indigent client’s right to discovery costs, even if family hires
an attorney for client Return
Challenging penalty imposed for violation, where probation has expired
Challenging increase of sentence after completion
Preventing further prosecution barred by Statute of Limitations
Challenging state’s failure to timely file information
Challenging illegal sentences and denial of gain time where client entitled
to immediate release.
Preventing retrial where first trial aborted without manifest necessity or
Challenging adjudication for higher charge after unlawful inquiry by judge
into deliberative process of jury’s verdict for lesser offense
In Sawyer v. Sandstrom, 615 F.2d 311 (5th Cir. 1980), PD-11 successfully
argued that a Dade County loitering ordinance was unconstitutionally overbroad,
in violation of first amendment associational rights, where the ordinance
criminalized being in a public place and associating with individuals whom the
defendant knew to be engaged in drug use or possession, without any active
participation by the defendant in drug activity.
In Rodriguez v. State, 906
So. 2d 1082 (Fla. 3d DCA 2004), our client was prosecuted for wearing a shirt
which had the word “police” written on the front and back. PD-11 successfully
argued that the statute which criminalized the unlawful display of authorized
indicia of law enforcement authority was unconstitutional. The appellate court held
that the statute was unconstitutional under the First and Fourteenth Amendments
as it was impermissibly based on the type of words written on the shirt, which
were not obscene, defamatory, or fighting words. The appellate court also held
that it was unconstitutionally overbroad, as it lacked an intent to deceive as
an element of the crime. The Supreme Court of Florida agreed. State v.
Rodriguez, 920 So. 2d 624 (Fla. 2005).
In State v. O’Daniels, 911
So. 2d 247 (Fla. 3d DCA 2005), PD-11 successfully argued that a Miami Beach
ordinance that banned all street performances and art vending from a fixed
location in the entire city, except for 11 locations where a permit was
required, violated the First and Fourteenth Amendments. The appellate court held
that the ordinance was broader than necessary to address the city’s traffic
concerns, and did not leave open ample alternative channels for communication
Early on, our office challenged
Florida’s loitering and prowling statute for overbreadth and vagueness in the
landmark case of State v. Ecker, 311 So. 2d 104 (Fla. 1975). The Supreme
Court placed a limiting, “breach of the peace” construction to uphold the
statute’s constitutionality. A few years later, in B.A.A. v. State, 356 So.
2d 304 (Fla. 1978), PD-11 urged that a child’s actions of approaching cars
stopped at a traffic light and engaging drivers in conversation, after a
warning to leave, did not fall within Ecker’s limiting construction. The
Supreme Court agreed, noting that otherwise the statute “could be upheld
against anyone at street intersections lawfully seeking donations, for
charitable purposes, from drivers of automobiles.” 356 So. 2d at 306. In
numerous other cases, PD-11 has successfully argued that loud, obscene,
non-violent verbal protests to the police are protected by the First Amendment,
and thus individuals cannot be convicted of resisting an officer without
violence and/or disorderly conduct for these actions. T.J.J. v. State,
913 So. 2d 1267 (Fla. 3d DCA 2005); J.G.D. v. State, 724 So. 2d 711
(Fla. 3d DCA 1999); L.A.T. v. State, 650 So. 2d 214 (Fla. 3d DCA 1995).
In Pottinger v. City of Miami,
810 F. Supp. 1551 (S.D. Fla. 1992), assistant public defenders, on their own
time, assisted in bringing a class action civil rights lawsuit on behalf of
homeless people, establishing their right to engage in essential,
life-sustaining acts such as sleeping and bathing on public property when they
have absolutely no other place to go. Arresting homeless persons for eating,
sleeping and congregating in public was cruel and unusual punishment, in
violation of the Eighth Amendment, and interfered with the fundamental right to
travel, in violation of the First Amendment. Destroying the personal property
of those arrested violated the Fourth Amendment.
The Fourth Amendment protects people against “unreasonable searches and
seizures.” Whether the police have a legal basis for stopping and/or arresting
a person depends on the “totality of the circumstances” surrounding each stop
or arrest, so it is important to examine the specific facts in a case to
determine if a person has been illegally seized. Here are some of the cases in
which PD-11 has successfully challenged a stop or an arrest of our client.
In Florida v. J.L., 529 U.S.
266 (2000), PD-11 successfully argued that a juvenile’s Fourth Amendment rights
were violated when the police stopped him based solely upon on an anonymous tip
that he was carrying a gun in a public place. The United States Supreme Court
unanimously agreed, holding that the anonymous tip lacked sufficient indicia of
reliability to establish the reasonable suspicion necessary for a stop, where
it was not accompanied by observations of predictive behavior that would let
the police test the unknown informant’s knowledge or credibility.
In Albo v. State, 477 So. 2d
1071 (Fla. 3d DCA 1985), PD-11 successfully argued that our client’s arrest was
illegal where the officer relied on incorrect information in the police
computer showing that our client had a suspended license. The court explained:
“Our decision is meant to inspire the correction of records, or at least
eliminate any reliance upon uncorrected ones.”
The police cannot just stop anybody
who is near a person suspected of committing a crime. In Louis v. State,
589 So. 2d 430 (Fla. 3d DCA 1991), the police had a valid basis to stop one of
three pedestrians, but that did not give the police the right to stop and frisk
the other pedestrians since mere presence at the scene of an investigatory stop
does not justify a stop. More than merely unusual conduct is needed to justify
a stop by the police. The unusual conduct must be related to a crime that has
been or may be committed. Thus, a middle school student who passed out in the
bathroom and appeared subdued and a “little pale” did not provide reasonable
suspicion to believe that he was involved in illegal activity or violating
school rules, so requiring him to empty his pockets and book bag was illegal. C.G.
v. State, 941 So. 2d 503 (Fla. 3d DCA 2006).
Similarly, being in a place that
might be considered out of place does not provide a basis for the police to
stop a person. For example, a black man walking in a predominately white
neighborhood does not justify an investigatory stop. Phillips v. State,
781 So. 2d 477 (Fla. 3d DCA 2001). Riding a bicycle slowly through a
residential area in the early morning does not give the police a basis to stop
the rider. Mullins v. State, 366 So. 2d 1162 (Fla. 1978). Walking with a
fishing pole towards water open to the public at 3:00 a.m. in a “high class”
neighborhood where there had been recent burglaries does not permit the police
to stop the person. As the court explained in Levin v. State, 449 So. 2d
288, 289 (Fla. 3d DCA 1983), “being out on the public street during late and
unusual hours cannot constitute a valid basis to temporarily detain and frisk
an individual.” Affirmed, State v. Levin, 452 So. 2d 562 (Fla.
Of course, people can consent to
talk to the police or to let the police search their property, but if the
police go too far, the Fourth Amendment is violated. For example, in Hidalgo
v. State, 959 So. 2d 353 (Fla. 3d DCA 2007), a consensual encounter with
the police became an illegal detention when the police conducted a pat-down
search. In Dominguez v. State, 616 So. 2d 506 (Fla. 3d DCA 1993), our
client gave police officers consent to search his apartment for drugs. Without
asking, the officers then brought in a narcotics detection dog, who found drugs
in a wall. The court agreed with PD-11’s argument that the drugs had to be
suppressed because the consent given to the officers did not by implication
include the subsequent entry by the dog and its handler, and thus the officers
exceeded the scope of the consent given.
Evidence that is obtained as a
result of an illegal stop or arrest can be suppressed. Thus, in Adams v.
State, 830 So. 2d 911 (Fla. 3d DCA 2002), a police officer tackled the
defendant, handcuffed him, and took him to the police station, all without
explanation. This amounted to a de facto arrest without any basis. A later
confession, given at the police station after Miranda rights were read to the
defendant, was tainted by the illegal arrest and so should have been
suppressed. The same result was reached in Johnson v. State, 813 So. 2d
1027 (Fla. 3d DCA 2002), where the police officer illegally arrested our client
by handcuffing him and bringing him to the police station, so a statement given
less than two hours later at the station was tainted by the illegal arrest and
should have been suppressed. Where a confession follows an illegal arrest, it
can be suppressed even if the person is read his or her rights before making
the confession. J.P. v. State, 695 So. 2d 464 (Fla. 3d DCA 1997). Return
Over the years, PD-11 has strived to protect our clients’ rights to a fair
trial in the many appeals we have handled. The following are just a few
In State v. Vazquez, 419 So. 2d 1088 (Fla. 1982), the Florida Supreme
Court held that where a defendant is charged with possession of a firearm by a
convicted felon as well as other offenses, severance of the possession count is
required because prejudice to the defendant on the other counts due to the fact
of the prior conviction outweighs judicial economy.
In Francis v. State, 413 So.
2d 1175 (Fla. 1982), the Florida Supreme Court held that jury selection is a
critical stage at which an accused has the constitutional right to be
personally present. Where the accused is not voluntarily absent, the record
must establish a knowing and intelligent waiver by him of his right to be present,
or ratification of counsel’s actions taken in his absence.
In State v. Singletary, 549
So. 2d 996 (Fla. 1989), the Florida Supreme Court ended the practice of trial
judges occasionally absenting themselves during voir dire, and established that
no questioning of prospective jurors in a criminal case may take place outside
of the presence of a trial judge.
In Coney v. State, 653 So. 2d
1009 (Fla. 1995), the Florida Supreme Court established the right of the
defendant, under Florida Rule of Criminal Procedure 3.180, to be present at
sidebar if that is where peremptory challenges are exercised, unless that right
is personally waived by the defendant.
In Ivory v. State, 351 So. 2d
26 (Fla. 1977) PD-11 successfully argued that when a jury has a question during
deliberations, the trial judge must give defense counsel the opportunity to
participate in the discussion about the answer to be given.
In Adkins v. State, 32 Fla. L. Weekly D1425 (Fla. 3d DCA June 6, 2007),
available at 2007 WL 1610147, the state’s murder case against the defendant
rested entirely on one witness, whom the defense argued was the real
perpetrator. The appellate court held that the state’s failure to disclose that
the witness had been the subject of twelve separate criminal complaints in the
year after the murder violated Brady v. Maryland, 373 U.S. 83 (1963),
and required a new trial even though this witness had been cleared of all
charges, as the undisclosed evidence still could have impeached or undermined
In Lavado v. State, 492 So.
2d 1322 (Fla. 1986), the Florida Supreme Court established the right of the
defense to question prospective jurors on voir dire regarding their ability to
fairly consider a particular defense (here, voluntary intoxication) and any
bias or prejudice they may have against it. Asking simply whether a juror would
follow the court’s instructions on the law is insufficient. Lavado has been
applied to a variety of defenses, such as necessity, entrapment, self-defense,
and insanity. See e.g. Mosely v. State, 842 So. 2d 279 (Fla. 3d DCA
Basic “principles of fundamental
fairness” sometimes require the trial court to appoint experts to assist the
defendant in preparing and presenting his or her case, the court held in Dingle
v. State, 654 So. 2d 164 (Fla. 3d DCA 1995). Our client was babysitting a
child who became unresponsive and died of trauma to the brain and spinal cord.
The state charged him with murder. His defense was that previous injuries to
the child inflicted by someone else had caused the brain to swell, causing
death. Shortly before trial, the state added three doctors to its witness list,
all of whom would testify that either the child had no other injuries or they
were inflicted the day the child died. When the defense sought the appointment
of two pediatric experts to dispute that testimony, the trial court denied the
request. On appeal, PD-11 successfully argued that the denial of the additional
experts was, under the circumstances, an abuse of discretion.
In Teemer v. State, 615 So.
2d 234 (Fla. 3d DCA 1993), the court held that the Rape Shield Statute cannot
be used to preclude DNA test results showing the defendant was not the source
of semen found in the rape victim’s vagina, as that evidence was crucial to the
defense of misidentification.
In Miami Herald Pub. Co. v.
Morejon, 561 So. 2d 577 (Fla. 1990), the Florida Supreme Court held that
when an on-duty reporter witnesses events relevant to a subsequent criminal
charge, there is no privilege, qualified, limited, or otherwise, that shields
the reporter from having to testify.
In Bryant v. State, 412 So.
2d 347 (Fla. 1982), PD-11 successfully argued that an independent act is a
defense to accomplice liability under the felony murder doctrine. Bryant
triggered the creation of Florida Standard Jury Instruction 3.6(l) on the
defense of independent act for felony murder.
In Roberts v. State, 335 So.
2d 285 (Fla. 1976), the Florida Supreme Court held that where the defense of
insanity is fairly raised, the jury must be instructed upon the consequences of
a verdict of not guilt by reason of insanity. This holding is the foundation
for Florida Standard Jury Instruction 3.6(a).
In Fleitas v. State, 867 So. 2d 512 (Fla. 3d DCA 2004), the court
ordered a new trial due to the improper testimony of an assistant state
attorney. It forcefully explained: “[F]or what we think and hope is the first
and last time in legal history, an assistant state attorney was permitted to be
called as a witness in the case and to testify, allegedly as ‘background,’ to
her investigation of the case itself, her opinion concerning the defendant’s
guilt, her assessment of the victim’s credibility, and that the defendant had
committed many other uncharged crimes against the victim.”
In Echevarria v. State, 845
So. 2d 340 (Fla. 3d DCA 2003), the defendant entered into a plea agreement
pursuant to which he agreed to testify against his codefendant, and the state
agreed that it would not oppose his parole if he testified. However, the chief
prosecutor later personally advised the parole board that the defendant should
not be paroled. The court held this was a breach of the plea agreement that
entitled the defendant to withdraw his plea. Shortly thereafter, the defendant
entered into a new plea agreement, pursuant to which he was released.
In Adams v. State, 830 So. 2d
911 (Fla. 3d DCA 2002), the court held that the prosecutor’s repeated personal
attacks on defense counsel were so prejudicial as to vitiate the entire trial.
It stated that the closing argument inflamed the jury and was “intolerable and
anathema to the constitutionally guaranteed words and spirit of a fair trial.”
Therefore, a mistrial should have been granted even though the trial court had
sustained objections to the attacks.
In Duarte v. State, 598 So.
2d 270 (Fla. 3d DCA 1992), the court held that the state’s failure to disclose
a fingerprint technician’s report, which found a fingerprint that was not the
defendant’s, violated Brady v. Maryland, 373 U.S. 83 (1963), and
required a new trial.
In Robertson v. State, 829 So. 2d 901 (Fla. 2002), the Florida Supreme
Court held that the “Tipsy coachman” doctrine, which allows an appellate court
to affirm if the trial court’s decision is right for the wrong reason, cannot
be applied when there is no evidence in the record to support the alternative
theory. It also ruled that before collateral crimes evidence may be admitted,
there must be adequate pretrial notice and the trial court must make multiple
determinations, including whether: the defendant committed the prior crime, the
prior crime is sufficiently similar to the charged crime, the prior crime is
too remote, and the prejudicial effect of the prior crime substantially
outweighs its probative value. If such evidence is admissible, the jury must be
given a cautionary instruction about the limited purpose for which the evidence
can be considered. The Court additionally found that there must be a
“substantial similarity” between the charged crime and other crime for the
latter to be admissible for the purpose of establishing absence of mistake or
accident. Id. at 909. The Court further held that when the prior crime
is not admissible collateral crimes evidence, the state may not introduce that
evidence through the back door by cross-examining the defendant about the
alleged prior crime. The Supreme Court emphasized: “It is critical for the
courts to enforce this restriction on impeachment.” Id. at 913.
In State v. Scarlet, 800 So.
2d 220 (Fla. 2001) and State v. Dodd, 419 So. 2d 333 (Fla. 1982), the
Florida Supreme Court held that the exclusionary rule applies in probation
revocation proceedings as well as in criminal trials.
In State v. McFadden, 772 So.
2d 1209 (Fla. 2000), the Florida Supreme Court held that unless there is a
final judgment of conviction or an adjudication of guilt, a defendant or
witness may not be impeached with evidence of a guilty plea or jury verdict.
In Edwards v. State, 857 So.
2d 911 (Fla. 3d DCA 2003), the appellate court held that reverse collateral
crimes evidence is admissible for exculpatory purposes. Specifically, in the
defendant’s carjacking trial, it was error to prohibit the defense from
introducing evidence of other carjackings in the same area and involving the
same modus operandi that took place while the defendant was in jail.
In Acevedo v. State, 787 So.
2d 127 (Fla. 3d DCA 2001), the appellate court held that for evidence of other
crimes to be admitted, the state must prove by clear and convincing evidence
that the defendant committed the other crime. A “strong suspicion or hunch”
that the defendant committed the other crime is not enough.
In Soca v. State, 673 So. 2d
24 (Fla. 1996), we successfully argued that the Florida Constitution should be
applied to render evidence obtained from a warrantless probationary search
inadmissible at a criminal trial, as the U.S. Supreme Court had not yet ruled
on this particular issue.
In State v. Lavazzoli, 434
So. 2d 321 (Fla. 1983), the Florida Supreme Court agreed with our argument that
the amendment to the search and seizure provision of the Florida Constitution
could not be applied retroactively. In 1983, this provision was amended to
require that it be interpreted in conformity with decisions of the United
States Supreme Court.
In Postell v. State, 398 So.
2d 851, 854 (Fla. 3d DCA 1981), the leading case on inferential hearsay, PD-11
successfully maintained that where “the inescapable inference from the
testimony is that a non-testifying witness has furnished the police with
evidence of the defendant’s guilt, the testimony is hearsay, and the
defendant’s right of confrontation is defeated, notwithstanding that the actual
statements made by the non-testifying witness are not repeated.” This decision
“has been cited favorably by other appellate courts in Florida at least 63
times, including by the Florida Supreme Court.” Lidiano v. State, 32
Fla. L. Weekly D1224 (Fla. 3d May 9, 2007) (Ramirez, J. dissenting), available
at 2007 WL 1342203.
In State v. Basiliere, 353
So. 2d 820 (Fla. 1977), PD-11 successfully argued that discovery depositions
cannot be used as evidence in the state’s case-in-chief when the witness
unexpectedly dies prior to trial. This use of the depositions would violate an
accused’s right to confront his accusers. Return
In Peart v. State, 756 So. 2d 42 (Fla. 2000), postconviction motions
were filed claiming violations of Florida Rule of Criminal Procedure
3.172(c)(8), which requires trial courts to advise defendants of the
deportation possibility as a consequence of their pleas. The Florida Supreme
Court held that to show prejudice, the defendants need not prove a probable
acquittal at trial. In Dixon v. State, 730 So. 2d 265 (Fla. 1999), PD-11
successfully maintained that the time period for seeking postconviction relief,
on the basis of a change in the law that is given retroactive effect, should be
enlarged by holding that the two-year window begins to run from the date the
decision announcing retroactivity becomes final, not when the decision
announcing the change in the law was issued. Return