January 2016 Newsletter, Volume 2, Issue 1 – Walton County Bar Association
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January 2016 Newsletter, Volume 2, Issue 1

 

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PRESIDENT’S MESSAGE

By Scott Critzer

Happy New Year! Thanks to everyone who attended our January Planning Meeting and Roundtable Discussion which was hosted by the Walton Area Chamber of Commerce and catered by Travinia Italian Kitchen. During the meeting, we discussed possible meeting places, speakers, By-Law changes, the upcoming Legal Symposium, and other items of interest to the attorneys and Judges present.  We are preparing a survey to go out to the membership requesting input on possible meeting topics and speakers.  Our next meeting will be held in DeFuniak Springs in the Walton County Board of Commissioners Board Room on Wednesday, February 10, 2016 at noon. Two Cousins is scheduled to cater the Luncheon.  Our guest speaker will Deputy Walton County Clerk Linda Warren and other representatives from the Walton County Clerk of Court’s office whose presentation topic will be Technology of the Courts.  I hope to see each of you there!

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WCBA Sponsored by:                                lexis_nexis_logo


“DID YOU KNOW”

from the First Circuit Local Professionalisms Panel

The First Circuit Professionalism Committee was established in response to an Order of the Florida Supreme Court for each Circuit to constitute a professionalism Committee.  The Chair of the First Circuit Professionalism Committee is appointed by the Chief Judge of the First Circuit.  The Chair appoints the members to the Committee.  The purpose of the First Circuit Professionalism Committee is to promote and encourage professional behavior by the lawyers practicing in the First Circuit.  If you have questions about the functions of the Professionalism Committee or the assistance that is available from the Committee, please contact the Honorable Patricia Grinsted or the Honorable Ross Goodman or any member of the Committee.  A good start for any attorney who has questions about the propriety of the attorney’s conduct or that of other members of the Bar is to consult the “professionalism Expectations” adopted by the Florida Bar Standing Committee on Professionalism.  In the future we will ask the local bar association to publish additional “Did You Know” articles on frequent issues or questions that arise in the course of our practice and concern recurring discovery and other issues encountered in our practice.


Recent Criminal Cases

Supreme Court of Florida

Oats v. State, SC12-749 (Dec. 17, 2015)

Oats appealed the denial of his Rule 3.203 motion, in which he claimed that he was intellectually disabled and could not be sentenced to death.

The Supreme Court reversed and remanded for a full reevaluation of whether Oats was intellectually disabled for three reasons. Oats’ IQ ranged from 54-67 on numerous tests and was well within the range of one who has an intellectual disability. The trial court denied the 3.203 motion, finding that Oats was unable to establish that his intellectual disability manifested before the age of 18 – one of three required prongs in Florida’s test for determining an intellectual disability. The trial court emphasized the absence of any full childhood IQ test, even though an initial screening test in elementary school showed an IQ of 70.

The Supreme Court emphasized that in light of the United States Supreme Court’s recent decision in Hall v. Florida, 134 S.Ct. 1986 (2014), the trial court should have addressed all three prongs of the test and not focused on a single factor as dispositive. Second, the trial court erred by failing to consider or weigh all of the testimony Oats presented, including evidence from prior proceedings, where the State acknowledged that there was “‘[n]o doubt’ he was ‘in the mildly mentally retarded area.’” Third, the trial court “erroneously conflated the term ‘manifested’ with ‘diagnose’ and held that Oats failed to satisfy one of the necessary prongs of the statutory test for intellectual disability because Oats was not diagnosed as a child, even though the applicable statute requires only that the intellectual disability ‘manifested during the period from conception to age 18.’”

First District Court of Appeal

Hanf v. State, 1D14-1158 (Dec. 18, 2015)

The defendant, 61-years old, was convicted for lewd or lascivious molestation of a child under the age of 12, and received a sentence of life without the possibility of parole. He argued on appeal that the sentence violated the ban on cruel and unusual punishment. The First District disagreed.

Because the defendant was over 18 and the victim under 12, the only sentences available were life imprisonment or a minimum of 25 years, followed by a lifetime of probation or community control.

The determination of whether a sentence constitutes cruel and unusual punishment focuses on whether the length of the sentence is “grossly disproportionate to the crime.” While lewd or lascivious molestation did not rise to the level of other sexual assaults, “it still involves an attack of a sexual nature on our most vulnerable citizens. It clearly may cause severe emotional distress to those victims. It also many times, as evidenced by the facts of this case, involves sexual predators who are willing to inflict harm on multiple children.” As such, the First District was “unwilling to second-guess the Legislature’s determination as to the level of deterrence and punishment necessary to address this type of crime.”

George v. State, 1D15-4171 (Dec. 18, 2015)

The defendant was convicted of seven offenses in 1995, including six sex offenses. In a 3.800(a) motion, he now claimed that the multiple sex offenses resulted in a double jeopardy violation. The First District first held that a 3.800(a) motion may challenge only the legality of a sentence, not an underlying conviction. Since the challenge here went to the convictions, it was beyond the scope of a 3.800(a) motion. Moreover, even if the claim could be raised in a 3.800(a) motion, “the Florida Supreme Court and this Court have held that multiple punishments for separate and distinct acts of sexual battery during a single criminal episode are not barred by double jeopardy principles. . . . The case before us illustrates the rationale of this principle: over a period of hours and at two separate locations, Appellant repeatedly committed acts of sexual violence against the victim, all while threatening to kill or inflict serious personal injury on her should she resist. In addition, Appellant aided and abetted another person in committing sexual battery against the victim.”

Fourth District Court of Appeal

Davis v. State, 4D11-2993, 4D11-2994 (Dec. 16, 2015)

The defendant was convicted for multiple sex offenses and received consecutive sentences totaling 80 years. The defendant was under 18 at the time of the offenses. As the 80-year sentence was a de facto life sentence without the possibility of parole, the Fourth District reversed and remanded for resentencing pursuant to the decisions in Graham v. Florida, 560 U.S. 48 (2010) and Henry v. State, 175 So. 3d 675 (Fla. 2015).

Franke v. State, 4D13-1678 (Dec. 16, 2015)

The defendant was convicted for financial exploitation of the elderly. The evidence was entirely circumstantial and the Fourth District reversed, finding that the evidence was not inconsistent with the hypothesis of innocence that the victim named the defendant as a beneficiary of a trust as a gift.

The defendant and the alleged victim, Mary Teris, had been friends for 30 years, having met when Ms. Teris became a client of the investment firm where the defendant worked as a stockbroker. Their relationship became close and was comparable to a mother-daughter-type relationship.

When Ms. Teris wanted to make changes to trust documents, she asked the defendant about an attorney she had seen at the investment firm, and she then used that attorney to make changes to the trust, which had been in existence for about 13 years, and which had been set up for the special needs of her two sons. The changes included, inter alia, making the defendant a residuary beneficiary of the trust and its trustee, replacing Ms. Teris’s sisters who had previously been so designated. The attorney explained that Ms. Teris wanted someone younger, who would be able to manage the assets and care for the sons.

The defendant, upon learning of this, was concerned and upset due to a conflict of interest with her work. She advised her boss, who said that she could remain as a residuary beneficiary, but not as the trustee. Ms. Teris then amended the trust again, to change the trustee.

Jenkins v. State, 4D14-445 (Dec. 16, 2015)

The defendant’s conviction for failure to reregister as a sexual predator was reversed based upon the erroneous exclusion of evidence that the defendant sought to introduce.

At trial, the State established that the defendant failed to comply with the registration requirements. The defendant testified and he attempted to state that when he went to the Sheriff’s Office to reregister, a stockade employee explained to him that since he had an outstanding arrest warrant, he would not be able to reregister. The trial court excluded this testimony as hearsay, concluding that the out-of-court statement related to the truth of the matter asserted.

The Fourth District disagreed with the trial court’s exclusion of the evidence. “[I]n this case, Appellant’s excluded testimony about what the stockade employee told him was not hearsay as those statements were being admitted to show the effect on the listener, that is, the reason Appellant left and did not register that day. The statements were not being admitted to prove the truth of the matter asserted (one cannot register with an outstanding warrant), but instead, that a sheriff’s department employee made such statements to Appellant, which is the purported reason he left without registering.”

Jackson v. State, 4D14-4918 (Dec. 16, 2015)

Pursuant to the 10-20-life statute, § 775.087(2)(a)(1), Fla. Stat. (2014), the defendant received consecutive ten-year mandatory minimum sentences for the offenses of carjacking and robbery with a firearm, for offenses that occurred on the same date and involved the same victim.

Pursuant to the Court’s prior decision in Williams v. State, 125 So. 3d 879 (Fla. 4th DCA 2013) (en banc), the Court again held that such consecutive sentences were required under the statutory language, even when there was no more than one victim. The Court again certified a question of great public importance to the Supreme Court: Whether the statutory language requires “consecutive sentences when the sentences arise from one criminal episode.”

Fifth District Court of Appeal

K.W. v. State, 5D14-2434 (Dec. 18, 2015)

The Fifth District concluded that the trial court erred in finding that a book bag had been abandoned, and that the case had to be remanded to the trial court for further proceedings, to determine whether K.W. provided consent to search – an issue upon which the trial court did not rule as a result of the disposition based on abandonment.

Officers responded to an indecent exposure complaint at an apartment complex and approached K.W. A deputy asked K.W. to place his book bag on the ground for safety. When the deputy asked for consent to search the bag, K.W. “stepped back and looked around over his shoulders, but did not say anything.”

“Regardless of whether Appellant was illegally seized or submitted to the deputies’ apparent authority, there was no competent, substantial evidence that Appellant abandoned his book bag. Unlike the trial court’s analogy of throwing a baggie out a window, Appellant placed his bag on the ground at the specific request of the deputy. Although the trial court found great significance in Appellant’s action of stepping away from his backpack, it is at most an ambiguous, nonverbal action that is more consistent with recognizing the deputy’s exercise of authority, than with an attempted abandonment.”

State v. Pullen, 5D14-4595 (Dec. 18, 2015)

The Fifth District reversed an order of the trial court suppressing the defendant’s statements.

Detectives visited the defendant at his workplace to ask about sexual contact with an underage victim. Pullen denied having sex, but said that the victim wanted to have sex with him. Arrangements were made for Pullen to meet with them at the police station the following morning. When he did not show up, they returned to his workplace, where he advised them that he had retained counsel. When the detectives turned to leave, Pullen “reengaged them in a discussion, asking what the investigation was about. Pullen volunteered that, although he never raped P.G., they did have sex once. Pullen made a written statement admitting to consensual sexual intercourse with P.G.”

Relying on the decisions in McNeil v. Wisconsin, 501 U.S. 171 (1991) and Sapp v. State, 690 So. 2d 581 (Fla. 1997), the Fifth District held that for purposes of the Fifth Amendment right against self-incrimination, “[t]he police are not required to give Miranda warnings to a suspect who is not both in custody and subjected to interrogation.”

December 21, 2015
Prepared by Richard L. Polin, Chief Assistant Attorney General
Office of the Attorney General, State of Florida


Civil Litigation Associate

Matthews & Jones LLP, a full service law firm in the Florida Panhandle, has immediate opportunity in our Destin office and Niceville office. The ideal candidate will have 4-6 years of Civil litigation experience and must have experience handling a full case load. Benefits include Health, Dental, Disability Insurance. 401-k differed and 401-Kprofit sharing participation when eligible.  For immediate consideration please forward your resume and salary requirements by email to hr@destinlaw.com


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If you have an announcement OR suggestion to make our organization better OR wish to submit an article for publication in the newsletter, please submit same to Lisa Mollitor at waltoncountybarassociation@gmail.com.

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