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Concurring opinions challenge precedent at 2DCA and 4DCA

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Wednesday brought opinions in the Second, Third, and Fourth Districts. Judges Lucas and Levine wrote separate opinions that challenge existing precedent.

Thursday gave us opinions from the First DCA, including a dissent from Judge Makar. The Florida Supreme Court also released opinions. No death penalty cases on Thursday, although the court released two death penalty opinions on Friday, denying relief under Hitchcock.

Time to rethink precedent on intent to sell?

In McFarlane v. State, at the Second DCA, Judge Lucas wrote separately to describe how the law on “criminal intent to sell” has “become overly didactic–perhaps to the point that it is becoming unsustainable.” His beef? Case law has evolved to now require that “having a large quantity of drugs, associated paraphernalia, scales, rolls of cash, and so forth” be in evidence as a prerequisite to proving intent to sell.

This, to Judge Lucas, improperly applies the circumstantial evidence rule to one element of  a crime, contrary to the 2016 Florida Supreme Court decision in Knight v. State. (The circumstantial evidence rule: if the evidence of guilt is only circumstantial (i.e, not direct, like a confession, eyewitness account, etc.), then the State’s circumstantial evidence must exclude every reasonable hypothesis of innocence.) In that case, the court clarified that the circumstantial evidence rule applies to the whole crime, “not where any particular element of a crime is demonstrated by circumstantial evidence.”

Judge Lucas traces the origin of the intent-to-sell cases to the application of the circumstantial evidence rule, and argues that it should be rethought in light of Knight: “Since the element in question is one that often turns on circumstantial evidence, it may be time to reconsider our decisions in Phillips, Jackson, and Williams, to the extent that their underpinning is an erroneous element-centric application of the circumstantial evidence rule.” And with a nod to the future: “Hopefully an occasion arises where we can thoughtfully reassess them.”

Statutory interpretation and agency deference–in the same opinion!

At the Fourth DCA, Judge Levine wrote a specially concurring opinion in Whynes v. American Security Insurance Co., joined by Judge Klingensmith, to register his agreement with Justice Lawson’s separate opinion in Schoeff v. R.J. Reynolds, regarding statutory interpretation (“[o]nly after reviewing the text should we look, if needed, to ‘legislative intent.'”), and to take a shot at the appellant’s argument that the court should defer to the Florida Department of Financial Services’ interpretation of the statute at hand.

Judge Levine quotes a law review article by Justice Scalia from 1989, a concurring opinion from Justice Gorsuch when he was on the Tenth Circuit, and Judge Shepherd’s scholarly opinion last year in Pedraza v. Reemployment Assistance Appeals, among other sources.

What’s the issue? The delegation of judicial power to an administrative agency through acquiescence and deference. Many perceive this as a particular problem when the legislative branch grants rule-making  power to the same entity, which is also charged with enforcing and administering the law. The result is an entity with the powers of all three branches of government, and that entity is not directly responsible to the people because the folks writing, enforcing, interpreting, and adjudicating are unelected. Nor are they amenable to the chief executive, in the case of so-called independent agencies. The concern is the de facto rise of a powerful new branch of government that strikes some as inconsistent with a representative democracy and judicial review.

Although it is not new (Justice Jackson called agencies “a veritable fourth branch of government, which has deranged our three-branch legal theories much as the concept of a fourth dimension unsettles our three-dimensional thinking,” saying they are “probably . . . the most significant legal trend of the last century” back in 1952), this has been a trendy topic at the federal level. One of the issues at Justice Gorsuch’s confirmation hearings concerned his views on so-called Chevron deference (i.e., deference to agency interpretation of a statute if the statute is “silent or ambiguous with respect to the specific issue”). And just this week, Justices Thomas and Gorsuch dissented from a denial of certiorari in a case that concerned deference to an agency’s interpretation of its own regulations (also known as Auer or Seminole Rock deference).

Now Judges Levine and Klingensmith join the judicial voices concerned about the separation of powers implications of deferring to an agency’s interpretation of a statute. Since the majority found there was no need to resort to an agency interpretation because the statutory language was clear, the panel did not address the question of deference in any binding way.

Friday’s here

Today we expect opinions from the Second and Fifth DCAs, and will retweet the links @fla_ct_rev.

Note: this post was updated at 12:54pm to reflect the Florida Supreme Court’s out-of-calendar release on Friday.

Unanimous FSC remands for life sentence

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And just like that, the Ides of March came and went before our first March post. Time, especially blog time, is scarce with a newborn’s feeding and sleeping schedule interacting with the morning routine. We hope you understand.

The Ides of March brought opinions from the First DCA and Florida Supreme Court. Wednesday saw a few dissenting opinions from Judge Gross at the Fourth DCA.

Unanimous Florida Supreme Court remands for life sentence

Something you don’t see everyday: the full court voted to vacate the death sentence of Kentrell F. Johnson and remand for an imposition of life without parole. Johnson was a co-defendant of Quentin Truehill, whom we’ve discussed before, and agreed to show investigators where the body of Vincent Binder was located in exchange for the State not pursuing the death penalty. Well, that deal was with one State Attorney’s Office, the Second Circuit in Tallahassee, and not the office that ended up prosecuting him–the Seventh Circuit in St. Johns County. And the trial court found that one State Attorney’s Office couldn’t bind another, even though Johnson led investigators to the body, as agreed.

The Florida Supreme Court reversed using “general contract principles,” finding that none of the agreement’s terms were contingent upon the body being found in one county or another, and that the State was bound by the agreement because Johnson “performed his end of the bargain.”

This is the first post-Hurst case where the full court remanded to impose a life sentence.

Another unanimous Hurst/waiver case

Since Hurst there is one Hurst issue that the Florida Supreme Court has been unanimous on since the beginning: defendants that waived a penalty phase jury are not entitled to new sentencing under Hurst. And yesterday was no exception. The court affirmed Jeffrey Glenn Hutchinson’s death sentences because he waived his right to present evidence to a penalty-phase jury.

This blog has discussed the waiver cases before, and has mused whether pre-Hurst defendants would’ve waived a penalty phase jury had they known that the State needed to convince all 12 jurors to vote for the death penalty, while one vote for a life sentence would’ve been enough to stay off death row.

So far, no justice at the state or U.S. level has dissented in a waiver case.

Dissent in the Districts!

On Wednesday, Judge Gross registered dissent in four cases at the Fourth DCA. Three involved interpretation of the PIP Statute, flow charts and all (here, here, and here), while the other involved a violation of probation and the defendant’s classification as a “danger to the community.”  The defendant’s crime that put him on probation was burglary, but his violation was marijuana-related. At the “danger hearing,” the best the state could come up with to support classification as a danger to the community was (according to Judge Gross’s reading of the record) dishonesty and marijuana use. This didn’t impress Judge Gross:

Under section 948.06(8), a “danger to the community” is not a freewheeling concept unhinged from the statute. Rock and roll music was once considered dangerous to the morals of teenagers, but that type of soft danger is outside the purview of the statute.

Needless to say, Judge Gross would have sent the case back for resentencing.

Tweeting, if not blogging

We’ve been more active on Twitter, and will retweet the links to the Second and Fifth DCA opinion releases. Happy Friday!

SCOTUS hears “that guy’s” First Amendment case today

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Today the U.S. Supreme Court will hear oral argument in Lozman v. City of Riviera Beach. SCOTUSblog has a preview here, and their resource page for the case is here. After SCOTUS granted review, we had a post on the case here.

Fane Lozman was a frequent attendee and thorn in the side of his local government. He even took them all the way to SCOTUS and won in another case.

In this case, Lozman began addressing his city council when the presiding member cut him off after a few seconds, told him he couldn’t speak about the topic (public corruption), then had police escort him out when he refused to change the subject. He was handcuffed and arrested. The State charged him but soon dismissed the charges. Lozman went to federal court with a civil rights complaint against the city. One of his issues was retaliation for exercising First Amendment rights.

Under Eleventh Circuit precedent, if there was probable cause for the arrest, there was no retaliation. But during the 19-day trial, the judge became concerned that the crimes the State actually charged him with were not supported by probable cause. So during trial, while Lozman represented himself, the court allowed the City to peruse the Florida Statutes and come up with another crime that would have been supported by probable cause for the jury instructions (see pages 9-13 of Lozman’s merits brief).

Long story short–they found one, and Lozman lost. Then he lost on appeal because probable cause is an absolute bar to a First Amendment retaliation claim in the Eleventh Circuit. Now he’s at SCOTUS. The issue before the justices is the probable cause rule, but don’t be surprised if some of the justices are concerned about the district court’s picking of a new criminal offense on which to find probable cause after the fact. Will SCOTUS take the probable cause rule head on in this case? We’ll find out together.

Transcript should be up by the end of the day. We’ll tweet the link, @fla_ct_rev.

SCOTUS stays out of retroactive issue

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About 30 minutes after the execution was scheduled to begin, the Supreme Court of the United States denied review in both of Eric Scott Branch’s cases. There was no dissent.

That was around 6:30. By 7:05, Branch was pronounced dead. According to reports, he didn’t go quietly, shouting “Murderers!” as the drugs began flowing.

With the high court’s refusal to intervene, the Florida Supreme Court’s retroactive application of Hurst remains intact. The line drawn at June 24, 2002, is bright as ever.

Considering that one of Branch’s petitions came from a Hitchcock case, where the FSC churned out 80 cases denying relief to pre-Ring sentences, the implications of SCOTUS’s refusal to intervene in a death warrant situation will likely strengthen the State’s position in the other Hitchcock cases when they go before SCOTUS.

Branch is the third execution carried out on a death sentence based on a non-unanimous jury, and the fourth overall, since Hurst.

Washington and Raiford, Branch edition

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Today at 6 p.m. the State of Florida will execute Eric Scott Branch at Florida State Prison in Raiford. That is, of course, if the Supreme Court of the United States denies review in his pending cases by then (17-7758, and 17-7825). His applications for stay of execution are docketed at 17A865 and 17A885. The State pauses the execution protocol until the word comes that the high court won’t intervene. Sometimes that happens hours after the scheduled execution time.

Hurst retroactivity–No. 17-7758

It will be interesting to see if SCOTUS intervenes in Branch’s case. Unlike Patrick Hannon, Cary Michael Lambrix, or Mark James Asay, the three executed inmates since Hurst, Branch has an amicus brief supporting him at SCOTUS in his challenge to Florida’s retroactive application of Hurst. We’ll see if that gives extra weight to his cert petition. In a nutshell, the Florida Supreme Court will vacate a death sentence if the jury recommended the death penalty by less than a unanimous vote. But if a non-unanimous sentence was final before June 24, 2002, then the Florida Supreme Court will not vacate that sentence and remand for a new penalty phase. Branch falls into that category, as did Asay and Lambrix. Hannon had a unanimous jury recommend the death penalty. SCOTUS declined to intervene in their cases, and they were executed within an hour or so after the Court declined review.

Mental development–No. 17-7825

In Case No. 17-7825, Branch contends that, although he was 21 at the time of the offense, “his mental functioning was no better than that of a juvenile.” Executing him, then, would violate the Eighth Amendment if the high court accepts his argument that “advancements in the scientific understanding of late adolescent brain development” should make it possible for him to present proof that “his age and particular lack of mental development reduced his culpability and rendered him ineligible for a death sentence.” This drew the support of two amicus briefs, one from Concerned Psychiatrists, Psychologists and Neuropsychologists, and another from The Promise of Justice Initiative. It also drew a response from the State that argued, among other things, that “[o]pposing counsel is not actually seeking an individualized determination of cognitive maturity; rather, he seeks a categorical prohibition on executions of all defendants under the age of 26 or 27 due to their cognitive immaturity.”

Now we wait

It only takes four votes to grant review and stop this evening’s execution. We’ll see if that happens in either case.

We’ll be watching SCOTUS’s order page for updates all day. We’ll tweet what we see, @fla_ct_rev.

Watching SCOTUS, Branch edition

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We continue to watch SCOTUS, where Eric Scott Branch’s death warrant cases are pending review. Branch’s execution is scheduled for this Thursday at 6 p.m.

A group of retired justices of the Florida Supreme Court filed an amicus brief on behalf of Branch, railing against the current FSC’s retroactive application of Hurst. Among the amici is Retired Justice James E.C. Perry, who blasted the retroactivity analysis from the beginning in his dissent in Asay. Their brief is here.

The State filed its response to Branch’s cert petition. The State argues that retroactivity is a state law issue that SCOTUS typically doesn’t entangle itself in, and that the FSC’s retroactivity analysis doesn’t conflict with any SCOTUS case or case from any other jurisdiction that would warrant SCOTUS’s intervention. They also include a mini-essay footnote addressing the Retired Justices’ amicus arguments.

Stay tuned. With SCOTUS’s new system in place, we can see the briefs and motions with ease. We’ll tweet the links to anything we see, @fla_ct_rev.

FSC rejects Branch’s death warrant appeal; focus shifts to SCOTUS

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Photo from the Department of Corrections website.

Yesterday the Florida Supreme Court rejected Eric Scott Branch’s death warrant petitions. His execution’s set for next Thursday, February 22, at 6 pm. Now we shift our attention to the Supreme Court of the United States.

Branch was convicted of the 1993 rape and murder of Susan Morris, a college student attending the University of West Florida in Pensacola. The attack occurred on campus when Morris was returning to her car after class. The jury recommended the death penalty with a 10-2 vote and the sentence was final in 1997. That would violate Hurst v. Florida and Hurst II, but not under the Florida Supreme Court’s retroactive application of Hurst, which only extends to sentences final since June 24, 2002.

The FSC rejected Branch’s Hurst claim with a Hitchcock order a few weeks ago. Following SCOTUS’s denial of certiorari in Hitchcock’s case, the Florida Supreme Court pumped out over 70 orders (80, as of February 2) denying relief to death row inmates whose sentences were final before June 24, 2002, when SCOTUS decided Ring v. Arizona. The FSC defines “final” as when SCOTUS denies cert from a defendant’s direct appellate proceedings. Branch asked the Florida Supreme Court to stay his execution while his cert petition is pending from that order, but the court denied that motion.

Branch’s cert petition from the Hitchcock order is here and the docket is here. Now that SCOTUS has joined e-filing nation, the case documents are readily available. The SCOTUS application for stay from that case is docketed here.

That’s the case to watch. We’ll see if SCOTUS takes on Florida’s retroactive application of Hurst that draws the line at June 24, 2002. So far, they have not done so in any case, including the last three death warrant cases. Like Branch, two of those three, Mark James Asay and Cary Michael Lambrix, didn’t have a unanimous jury recommend the death penalty. SCOTUS denied review in both instances without comment or dissent. If they do intervene and rule the FSC’s retroactivity cases unconstitutional, it would mean the undoing of over 80 cases released this year, and perhaps raise the question of why they didn’t intervene earlier, especially in the recent death warrant cases.

But as Justice Lewis recently pointed out, both the FSC and SCOTUS rejected (or didn’t opine on) the argument that Ring v. Arizona applied to Florida’s death penalty system for almost 14 years, the time between Ring and Hurst v. Florida. And there were several death warrant cases that raised the issue during those 14 years. So the retroactive cases may be unconstitutional (just not yet) or they may not be. We won’t know for sure till SCOTUS answers one way or the other, or until all of the 80+ pre-Ring sentences (including those that were not issued a recent Hitchcock order) get carried out without interference.

Branch, for one, doesn’t have 14 years for the retroactivity question. We’ll see if SCOTUS has an opinion on the matter in the next six days.

FSC denies Hurst relief twice; update on Branch death warrant; tobacco at 1DCA

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Yesterday the Florida Supreme Court and First DCA released opinions. And Eric Scott Branch had a couple filings in his death warrant cases.

Two death row inmates denied relief at FSC

The Florida Supreme Court denied Hurst relief to Richard Eugene Hamilton, whose sentence was final in 1998, prompting a dissent from Justice Pariente. The court also denied relief to Jeremiah M. Rodgers, who waived a penalty phase jury. Rodgers was challenging his waiver based upon his undiagnosed mental illness at the time of the waiver. Justice Pariente concurred in the result with an opinion. No justice has taken the position that a defendant who waived a penalty-phase jury should be resentenced in light of Hurst.

Update on Branch death warrant cases

Also at the Florida Supreme Court, Eric Scott Branch filed his initial brief in his death warrant appeal and a petition for habeas corpus in a separate case. We are also watching for a cert petition at SCOTUS from the Hitchcock order that denied him Hurst relief a couple weeks ago. Branch initially asked that the Florida Supreme Court grant a stay of execution during the certiorari proceedings from the Hitchcock order (see State’s response here). On Tuesday, the court denied that request.

Branch’s execution is scheduled for February 22.

Rough day at 1DCA for plaintiffs’ lawyers in tobacco cases

At the First DCA, the court affirmed the dismissal of 73 tobacco cases in In re 73 Engle-Related Cases. The plaintiffs’ counsel rushed to file suit before time expired in these cases without confirming allegations or getting permission from the clients. Because they were dead.

These weren’t wrongful death actions where a personal representative of the estate is technically the client. Judge Osterhaus, writing for the court, pointed out that “[t]he lawsuits filed here were nullities because a dead person cannot file and maintain a lawsuit.” No zombie filings in Florida, in case you were wondering. He also mentioned in a footnote that “[f]our federal district judges recently signed a 148-page order penalizing plaintiffs’ counsel for similar Engle litigation conduct to the tune of a $9 million sanction.” That was another rough day at the office.

The First DCA had a companion case in which the lawyers didn’t know their client was dead when they filed suit. The problem there was that they didn’t amend the complaint when they found out, waiting eight years after filing suit to file their motion to amend the complaint. This didn’t please the trial judge, who denied the motion and dismissed the case with prejudice; nor did it impress the First DCA, which affirmed. This is a rare instance when denying a first motion for leave to amend, which are granted almost automatically, wasn’t an abuse of discretion.

Friday’s here

Today we’ll be watching the Second and Fifth DCAs for opinions. We’ll tweet what we see, including updates in Branch’s case, @fla_ct_rev.

3DCA Decides not to Decide Stand-Your-Ground Case

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Yesterday brought opinions from the Second, Third, and Fourth DCAs. Tuesday gave us opinions from the First, and today will see the Florida Supreme Court’s regular opinions for the week.

Deciding not to decide: stand-your-ground edition

The Third DCA had a stand-your-ground case, with briefs from six amici curiae and the Florida Solicitor General, Amit Agarwal. Odds are that you’ve heard of the stand-your-ground laws in Florida. ‘Stand-your-ground’ is shorthand for Florida’s self defense statutes that grant immunity to a person using deadly force when “he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.” ‘Stand-your-ground’ comes from the next sentence in section 776.012: such a person using force “does not have a duty to retreat and has the right to stand his or her ground” as long as the person isn’t “engaged in criminal activity and is in a place where he or she has a right to be.” A stand-your-ground-hearing occurs at the beginning of a criminal prosecution against someone who claims to have acted lawfully under the stand-your-ground laws.

In 2017, the Legislature amended section 776.032 to shift the burden of proof to the State in a stand-your-ground hearing. That was in response to case law that said the burden was on the defendant in such hearings.

Judge Salter wrote for a unanimous panel. But the court decided not to rule on whether the 2017 version of section 776.032 or the 2015 version (the statute in effect at the time of the alleged crime) applies, or the constitutionality of the 2017 amendment, because it wasn’t ripe for relief on writ of prohibition. That’s because the trial court didn’t actually have the hearing yet, so the Third DCA said there is no “material injury” to the defendant based upon which standard the trial court ultimately uses in deciding whether he gets immunity.

Under the new version, the State has the burden to show the defendant didn’t act in self defense when using deadly force against the victim and must do so by clear and convincing evidence. According to the Third DCA, the trial court’s ruling that the 2017 version is unconstitutional (violates separation of powers) was not enough of an injury to warrant prohibition, meaning the Third DCA didn’t have jurisdiction to rule on the merits.

In the trial court, the State argued that the 2015 version applied because that was the version in effect at the time of the crime. The judge took an extra step, deciding that the 2017 version is unconstitutional. It is not clear whether the State advanced this theory below or not. If so, it would be interesting to know whether that view is consistent throughout the executive branch. There was no veto from the Governor’s office. Obviously someone noticed this case in Tallahassee because the State’s top appellate lawyer got involved. If only we could see the briefs!

In any event, the defendant will go into the hearing with the burden of proof under the old statute because the trial judge ruled the 2017 version unconstitutional.

Then the Third DCA closed with an unusual footnote:

We appreciate the amici briefs filed by numerous non-profit associations and the University of Miami School of Law Federal Appellate Clinic. The research and legal theories advanced by the amici will not be discarded. There are presently pending numerous other SYG appellate cases, not only in this court but also in others throughout the State, relating to the June 2017 amendment, its alleged unconstitutionality (on at least two separate legal theories), and its applicability to prosecutions for crimes allegedly committed before enactment.

Apart from the gracious nod to the amici briefs, this is a somewhat puzzling message. Will the court use the “research and legal theories” in other cases where these amici didn’t file briefs? Will the Third DCA pass it on to the other courts “throughout the state”? What would that look like? Perhaps that explains the passive voice–it isn’t necessarily that the court will or will not “discard” the “research and legal theories,” but that the amici have done a service to litigants “throughout the state” that can use the briefs for guidance in other cases.

Those folks will have to go to the clerk’s office to pull the briefs because the court didn’t address these theories in the opinion and the online docket doesn’t have them available for easy public download.

Dissent in the Districts!

From Miami to Tallahassee we go. And speaking of Solicitors General, in Ash v. Campion,  Judge Makar dissented in what he described as a “rancorous and affluent dissolution case” and what Judge Winsor, writing for the majority, called a “long and contentious divorce battle.” (Both Makar and Winsor served as Florida Solicitor General before joining the bench.) The issue was contempt sanctions against the former wife based on “a slew of vitriolic text and voicemail messages” (according to Judge Winsor) that “charitably, can be described as outrageous, profane, and vile,” according to Judge Makar. Judge Winsor described some of the messages as “unfit for print here.” Judge Makar revealed that one message to the former husband purported to show the couple’s son “appearing severely injured in a hospital bed at an undisclosed location,” whereas he was merely recovering from cosmetic surgery in Los Angeles, unbeknownst to former husband. No telling what the “unfit for print” messages contained.

Aside from their general agreement on adjectives, the judges disagreed on whether the lower court properly imposed a $100,000 fine on the former wife in a contempt order. Judge Winsor reasoned that this should be considered a criminal sanction that didn’t follow a proper criminal contempt proceeding. He and Judge Lewis voted to reverse.

Judge Makar pointed out some of the shenanigans surrounding the hearing, and the case. Former wife fired her lawyer on the eve of the hearing and her new lawyer showed up “mid-hearing to request a continuance.” Judge Makar focused on the fact that there was no preserved objection other than a denied motion for continuance, and that the former wife’s tactics of “dismissing her lawyers before important court proceedings and seeking continuances, four of the trial itself,” showed there was no abuse of discretion in denying the continuance. Because there was no objection, the court was reviewing for fundamental error. And Judge Makar didn’t believe the case fell into a category of fundamental error review for civil cases (lack of jurisdiction or due process); nor did he agree that the contempt order should be considered a criminal contempt order, as the majority considered it.

It’ll be interesting to see whether the case returns to the appellate level, and whether Judge Makar’s closing sentence proves prophetic:

Principles of judicial restraint, which reserve fundamental error analysis for only the truly meritorious cases, require affirmance of the contempt order, short of which flouting court orders and provoking disorderly adjudication are rewarded.

Thursday Florida Supreme Court Watch

We’ll be watching the Florida Supreme Court for its regular opinion release, and we’ll tweet when the opinions are up, @fla_ct_rev.

FSC gives us new death penalty twist

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Yesterday’s Florida Supreme Court opinions gave us an entirely new category of Hurst cases, while another death row inmate got a new sentencing hearing under Hurst. And there were dissents. And a few rules cases. Nodding to Father Time, we’ll have analysis soon.

Public Safety Advisory: one of these cases made a sip of coffee go down the wrong pipe, placing your author out of service for a minute or two while he recovered in his office. We advise no drinking coffee (or other beverage) when you read State v. Silvia. Spoiler: Silvia is our new category of Hurst cases–non-unanimous jury after Ring v. Arizona; no new sentencing hearing. Waived postconviction relief forever and always. Six-to-one, Justice Lewis dissenting. Merits more discussion. Stay tuned.

Today, look for more Hitchcock orders from the Florida Supreme Court, and opinions from the Second, Fifth, and possibly, First DCAs. We’ll tweet ’em when we see ’em, @fla_ct_rev.