Court Wrap-Up: April 22, 2010

Five decisions this week.

Donald Bradley v. State of Florida and Donald Bradley v. Walter A. McNeil, etc. are combined death penalty opinions. Mr. Bradley is a death-row inmate claiming that his trial counsel was ineffective and seeking a writ of habeas corpus because his appellate counsel was ineffective. The Court found these claims to be without merit. There is good language in this opinion for criminal defense lawyers and the "ineffective assistance" standard.

Louis R. Menendez, Jr. v. Progressive Express Insurance Co., In. addresses section 627.736, Florida Statutes, relating to notice that insureds must give to their insurer before filing suit. The Court found amendments to the statute requiring notice to the insurer were substantive and could not be applied to the insureds retroactively.

Alfred C. Canseco v. State of Florida did not allow a criminal defendant a time extension to withdraw his plea because he waited more than two years after he received notice of his deportation proceeding to try to withdraw his plea.

Attorneys' Title Insurance Fund, Inc. v. M.I. Industries Usa, Inc., Et Al. The Court had initially accepted jurisdiction but then decided not to hear the case.

Marcus F. Sanders v. State of Florida addressed the criminal punishment code scoresheet for a violation of probation. The state cannot use an offense for which the defendant has successfully completed probation as a pending offense on the scoresheet.

Donald Bradley v. State of Florida (SC07-1964)

SUMMARY: 7-0 Decision. Mr. Bradley was convicted of first-degree murder and sentenced to death. Mr. Bradley appeals the denial of post-conviction relief under Fla. R. Crim. P. 3.851 as well as petitions the Court for a writ of habeas corpus. Mr. Bradley claimed, inter alia, that his trial counsel was ineffective. The Court found that Mr. Bradley's trial counsel was not ineffective. Even if trial counsel had been ineffective, Mr. Bradley would also have to "establish prejudice and must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different." Mr. Bradley failed to do this and the Court found his claims to be without merit. In his petition for writ of habeas corpus, Mr. Bradley claims that his appellate counsel was ineffective. The Court also found this claim to be without merit. The Court affirmed the trial court's denial of post-conviction relief and denied the petition for writ of habeas corpus.

Donald Bradley appeals an order of the circuit court denying his motion to vacate his conviction of first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.851. He also petitions this Court for a writ of habeas corpus. For the reasons explained below, we affirm the circuit court‘s order denying Bradley‘s motion for postconviction relief, and we deny Bradley‘s petition for writ of habeas corpus.

Bradley raised eighteen claims in his postconviction motion but seeks review of only four in this Court. First, Bradley contends trial counsel failed to fully investigate and utilize the duct tape evidence, resulting in a flawed decision as to the proper defense theory. Second, he asserts counsel‘s act of withholding certain mental illness evidence from defense experts and the trial judge constituted ineffective assistance because disclosing such evidence could have allowed for a finding of extreme mental or emotional disturbance. Third, Bradley argues trial counsel was ineffective for failing to preserve for direct appeal the argument that he could not be found guilty of burglary because the victim‘s wife invited him into the house; and that under this Court‘s later decision in Delgado v. State, 776 So. 2d 233 (Fla. 2000), the initial consent for entry could not be deemed revoked after he and the McWhite brothers committed crimes against the victim. Fourth, Bradley contends the cumulative effect of counsel‘s errors amounted to ineffective assistance of counsel.

BRADLEY’S 3.851 CLAIMS

As we have explained before, the test when assessing the actions of trial counsel is not how, in hindsight, present counsel would have proceeded. See Cherry v. State, 659 So. 2d 1069, 1073 (Fla. 1995). On the contrary, a claim for ineffective assistance of trial counsel must satisfy two criteria. First, counsel‘s performance must be shown to be deficient. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance in this context means that counsel‘s performance fell below the standard guaranteed by the Sixth Amendment. Id. When examining counsel‘s performance, an objective standard of reasonableness applies, id. at 688, and great deference is given to counsel‘s performance. Id. at 689. The defendant bears the burden to ―overcome the presumption that, under the circumstances, the challenged action ‗might be considered sound trial strategy.‘ ‖ Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). This Court has made clear that ―[s]trategic decisions do not constitute ineffective assistance of counsel.‖ See Occhicone v. State, 768 So. 2d 1037, 1048 (Fla. 2000). There is a strong presumption that trial counsel‘s performance was not ineffective. See Strickland, 466 U.S. at 669. Second, the deficient performance must have prejudiced the defendant, ultimately depriving the defendant of a fair trial with a reliable result. Strickland, 466 U.S. at 689. A defendant must do more than speculate that an error affected the outcome. Id. at 693. Prejudice is met only if there is a reasonable probability that ―but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.‖ Id. at 694. Both deficient performance and prejudice must be shown. Id. Because both prongs of the Strickland test present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the circuit court‘s factual findings that are supported by competent, substantial evidence, but reviewing the circuit court‘s legal conclusions de novo. See Sochor v. State, 883 So. 2d 766, 771-72 (Fla. 2004).

Even if trial counsel‘s actions could be considered deficient, we conclude that Bradley has not met the prejudice prong of Strickland. To meet this prong, the claimant must ―establish prejudice and must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Williams v. Taylor, 529 U.S. 362, 391 (2000) (quoting Strickland, 466 U.S. at 694). We conclude that the second prong has not been met.

Although the strategy chosen by trial counsel and Bradley did not prevail, that fact alone does not render the strategy unreasonable or deficient. Were that the test, all defendants sentenced to death would have claims for ineffective assistance of trial counsel. See Heath v. State, 3 So. 3d 1017, 1029 (Fla. 2009) (―The fact that this defense strategy was ultimately unsuccessful with the jury does not render counsel‘s performance deficient.); see also Henry v. State, 948 So. 2d 609, 616 (Fla. 2006) (―It is all too tempting for a defendant to second-guess counsel‘s assistance after conviction or adverse sentence . . . .) (quoting Strickland, 466 U.S. at 689). Accordingly, Bradley has failed to demonstrate that his trial counsel was deficient in his investigation or presentation of mental health mitigation. Thus, the first prong of Strickland has not been established.

Thus, for the reasons set forth above, we conclude that counsel‘s performance was not deficient, and even if it were, there is no reasonable probability that had counsel acted otherwise the result of the proceeding would have been different. Since our confidence in the outcome has not been undermined, no prejudice has been shown. Because neither the deficiency nor the prejudice prong of Strickland has been established, we conclude Bradley‘s claim that trial counsel was ineffective by failing to challenge the burglary charge in order to preserve the issue for appeal is without merit.

BRADLEY’S HABEAS CLAIMS

In Bradley‘s petition for habeas corpus he alleges appellate counsel was ineffective during the direct appeal to this Court. Claims of ineffective assistance of appellate counsel are appropriately raised in a petition for writ of habeas corpus. See Freeman v. State, 761 So. 2d 1055, 1069 (Fla. 2000). In order to grant habeas relief on the basis of ineffectiveness of appellate counsel, this Court must determine the following: [W]hether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result. Pope v. Wainwright, 496 So. 2d 798, 800 (Fla. 1986). ―The defendant has the burden of alleging a specific, serious omission or overt act upon which the claim of ineffective assistance of counsel can be based. Freeman, 761 So. 2d at 1069. With this standard in mind, we turn to Bradley‘s first claim of ineffective assistance of appellate counsel.

Bradley‘s first habeas claim, he contends that appellate counsel was ineffective for failing to appeal the denial of his many commonly filed boiler-plate motions challenging the constitutionality of Florida‘s death penalty statutes. Nonetheless, Bradley has failed to set forth any basis upon which this Court could grant him relief. Instead, he simply refers the Court to his claims filed below. As we have previously held, vague and conclusory allegations are insufficient to warrant relief. See Doorbal v. State, 983 So. 2d 464, 482 (Fla. 2008) (―[T]o merely refer to arguments presented during the postconviction proceedings without further elucidation is not sufficient . . . and these claims are deemed to have been waived.‖); Thompson v. State, 759 So. 2d 650, 668 (Fla. 2000) (denying habeas claim, in part, as legally insufficient because defendant made only a conclusory statement without specific supporting facts). The purpose of a legal brief is to offer argument in support of the issues raised on appeal. See Doorbal, 983 So. 2d at 482. Bradley has failed to do this, and consequently, he has failed to meet his burden of demonstrating that appellate counsel was ineffective. See Parker v. State, 904 So. 2d 370, 375 n.3 (Fla. 2005) (declining to review four issues that Parker raised on appeal because the claims of error were ―bare-bones‖ and conclusory). Accordingly, Bradley has failed to present a legally sufficient claim for habeas relief and this claim is denied as waived.

Accordingly, we conclude that Bradley has again failed to provide any basis upon which this Court might grant him habeas relief. As with his first habeas claim, because his presentation of the issues is legally insufficient, this claim is also denied as waived. Accordingly, we deny the petition for writ of habeas corpus.

For the reasons stated above, we affirm the trial court‘s denial of postconviction relief. We also deny Bradley‘s petition for writ of habeas corpus.

Donald Bradley v. Walter A. McNeil, etc. (SC08-1813)

SUMMARY: 7-0 Decision. This case is combined with Bradley v. State. See above.

Louis R. Menendez, Jr. v. Progressive Express Insurance Co., In. (SC08-789)

SUMMARY: 7-0 Decision. The Court held that amendments to F.S. 627.736 limiting attorney fees and requiring insureds to give their insurer notice before filing suit were substantive changes to the statute and could not be applied retroactively. The Court quashed the decision of the 3d DCA and remanded the case to the trial court.

Note: This is a revised opinion. The original opinion, SC08-789, was originally issued February 4, 2010.

This case arose from the failure of Progressive Express Insurance Company (Progressive) to pay personal injury protection (PIP) benefits to its insured, Cathy Menendez, after she was injured in an automobile accident in June 2001. Because Progressive did not pay the benefits, the insured sued for overdue benefits. She was successful in her claim in the trial court, which eventually entered a judgment in her favor. On appeal, the Third District Court of Appeal reversed the judgment on multiple grounds, including the insured’s failure to comply with a statute enacted after the date of the automobile accident (referred to as the statutory presuit provision) that placed additional requirements on an injured person seeking to recover PIP benefits before filing suit. See Progressive Express Ins. Co. v. Menendez, 979 So. 2d 324 (Fla. 3d DCA 2008).

In holding that the statutory presuit notice provision could be applied retroactively to the insured’s claim because it was “merely procedural” and did not unconstitutionally alter any existing rights, the decision of the Third District expressly and directly conflicts with the decisions of this Court in State Farm Mutual Automobile Insurance Co. v. Laforet, 658 So. 2d 55 (Fla. 1995), and Young v. Altenhaus, 472 So. 2d 1152 (Fla. 1985), and the decisions of the First District Court of Appeal in Walker v. Cash Register Auto Insurance of Leon County, Inc., 946 So. 2d 66 (Fla. 1st DCA 2006), and Stolzer v. Magic Tilt Trailer, Inc., 878 So. 2d 437 (Fla. 1st DCA 2004).

Because we conclude that the 2001 amendment creating the statutory presuit notice provisions constitutes a substantive change to the statute, we hold that it cannot be retroactively applied to insurance policies issued before the effective date of the amendment and quash the decision of the Third District in Menendez.

For the foregoing reasons, we hold that section 627.736(11), Florida Statutes (2001), does not apply retroactively to the insurance policy issued to the insureds, because it is a substantive statute. Accordingly, we quash the decision of the Third District Court of Appeal and remand with directions to reinstate the stipulated final judgment and the final judgment awarding attorneys’ fees. We also instruct the district court to enter an order awarding attorneys’ fees and to remand the issue to the trial court for a determination of the amount of fees for the proceedings at the district court and before this Court.

Alfred C. Canseco v. State of Florida (SC09-1535)

SUMMARY: 7-0 Decision. The Court held that a defendant was not entitled to an extension of time to withdraw his plea under State v. Green when more than two years had passed since the defendant received actual notice of deportation proceedings and filing his motion to withdraw plea. The Court affirmed the 1st DCA and answered its certified question in the negative.

This case is before the Court for review of the decision of the First District Court of Appeal in Canseco v. State, 12 So. 3d 923 (Fla. 1st DCA 2009). In its decision, the district court ruled upon the following question, which the court certified to be of great public importance:

WHETHER A DEFENDANT MAY OBTAIN THE BENEFIT OF A NEW TWO-YEAR WINDOW PERIOD UNDER STATE V. GREEN, 944 SO. 2D 208 (FLA. 2006), IF THE CLAIMANT RECEIVED ACTUAL NOTICE OF A DEPORTATION PROCEEDING MORE THAN TWO YEARS BEFORE THE MOTION TO WITHDRAW PLEA. Canseco, 12 So. 3d at 923.

In Ventura v. State, 977 So. 2d 794 (Fla. 2d DCA 2008), the Second District Court of Appeal demonstrated clearly how the two-year Green window was intended to operate. In Ventura, the appellant pleaded guilty in 1994 to carrying a concealed weapon and driving while his license was suspended. Id. at 795. In September 2006, he filed a motion for postconviction relief asserting that he was not advised that his plea might subject him to deportation and that in July 2006 he was threatened with deportation. Id. His motion was dismissed without prejudice because of an outstanding arrest warrant. Id. Ventura refiled his motion in December 2006, which the trial court dismissed relying on Green, noting that Ventura filed his motion more than two years after his case was final. Id. On appeal to the Second District, Ventura argued that the trial court misread Green, to which the Second District agreed, stating: Under Green a defendant such as Ventura, whose case is already final, has a period of two years from the date of Green to bring a claim alleging “that the trial court did not advise him at the time of his plea that he could be deported, that he would not have entered the plea if properly advised, and that the plea in fact renders him subject to deportation.” The trial court‟s requirement that Ventura also allege and prove that he could not have ascertained the immigration consequences of his plea with the exercise of due diligence within two years of his 1994 convictions is at odds with Green. Such a requirement would undermine the fairness concerns expressed by the supreme court as to defendants whose convictions were already final but who may have been able to obtain relief under Peart because of a recent threat of deportation. Ventura, 977 So. 2d at 796-97 (citation omitted) (quoting Green, 944 So. 2d at 219).

Canseco‟s argument—that Green provided a two-year window in which all defendants whose cases were final could file a motion to vacate a plea—is not supported by a logical reading of the opinion. If Canseco‟s argument was taken to its logical conclusion, all defendants whose cases were final when Green was issued, even those that were disposed of under Peart‟s guidelines, would be eligible to file a motion to withdraw plea. Surely such a result was not this Court‟s intent. Indeed, no district court has interpreted Green to provide such a result. Accordingly, we answer the certified question in the negative and approve the decision below.

Attorneys’ Title Insurance Fund, Inc. v. M.I. Industries Usa, Inc., Et Al. (SC09-938)

SUMMARY: 7-0 Decision. After initially accepting jurisdiction, the Court decided to "exercise [its] discretion and discharge jurisdiction." Full opinion below.

PER CURIAM.

We initially accepted jurisdiction to review the decision of the Fourth District Court of Appeal in M.I. Industries USA Inc. v. Attorneys’ Title Insurance Fund, Inc., 6 So. 3d 627 (Fla. 4th DCA 2009). In its decision the district court certified the following question to be of great public importance: INCIDENT TO AN ACTION AT LAW, MAY A TRIAL COURT ISSUE AN INJUNCTION TO FREEZE ASSETS OF A DEFENDANT, WHERE THE PLAINTIFF HAS DEMONSTRATED: (1) THE DEFENDANT WILL TRANSFER, DISSIPATE, OR HIDE HIS/HER ASSETS SO AS TO RENDER A TRIAL JUDGMENT UNENFORCEABLE; (2) A CLEAR LEGAL RIGHT TO THE RELIEF REQUESTED; (3) A SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS; AND (4) A TEMPORARY INJUNCTION WILL SERVE THE PUBLIC INTEREST? Id. at 629.

After further consideration, we have determined that we should exercise our discretion and discharge jurisdiction. Accordingly, this review proceeding is dismissed. It is so ordered. QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur. NO MOTION FOR REHEARING WILL BE ALLOWED.

Marcus F. Sanders v. State of Florida (SC09-1729)

SUMMARY: 7-0 Decision. The Court held that offenses for which the defendant has completed probation cannot be used as pending offenses on the criminal punishment code scoresheet when the defendant violates probation on another offense. Mr. Sanders was entitled to be resentenced and have his scoresheet corrected.

In this case we consider whether sentence points were properly scored on the Criminal Punishment Code (CPC) scoresheet used for sentences imposed upon the revocation of probation. We have for review the decision of the Second District Court of Appeal in Sanders v. State, 16 So. 3d 232 (Fla. 2d DCA 2009), in which the Second District certified a question to this Court to be of great public importance. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We have revised the question as follows:

WHEN A DEFENDANT IS TO BE SENTENCED UPON REVOCATION OF PROBATION AND PRIOR TO THAT REVOCATION THE TRIAL COURT‟S JURISDICTION OVER ONE OR MORE OF THE ORIGINALLY SENTENCED OFFENSES HAS EXPIRED, MAY THE OFFENSES OVER WHICH THE TRIAL COURT NO LONGER HAS JURISDICTION BE SCORED AS ADDITIONAL OFFENSES?

For the reasons that follow, we answer the rephrased certified question in the negative. Offenses over which the trial court no longer has jurisdiction cannot be scored as additional offenses during a sentencing proceeding following a violation of probation because they do not fit the definition of “additional offense” set out in section 921.0021, Florida Statutes (1999). Accordingly, we quash the decision under review and remand the case for proceedings consistent with this opinion.

Court Wrap-Up: April 15, 2010

Two decisions this week.

Cary Michael Lambrix v. State of Florida addresses a motion for post-conviction relief from a death row inmate.

In Re: Revisions To Simplified Forms Pursuant To Rule 10-2.1(A) Of The Rules Regulating The Florida Bar amends the real estate forms that non-lawyers may assist third persons in filling out.

Cary Michael Lambrix v. State of Florida (SC08-64)

SUMMARY: 6-0 Decision (C.J. Quince recused). Mr. Lambrix was convicted of two counts of first-degree murder and sentenced to death in 1983. After a long history of unsuccessful appeals and post-conviction relief, Mr. Lambrix appeals the trial court's order denying a successive motion for post-conviction relief. The Court affirmed the trial court's order denying post-conviction relief.

Commentary: This appears to be a frivolous claim for post-conviction relief from an inmate who has been on death row for nearly 30 years.

Ultimately, after several evidentiary hearings, the postconviction court denied relief on all of Lambrix’s claims. On appeal, Lambrix raises five issues: (1) whether the State withheld material exculpatory or impeachment evidence involving a sexual relationship between witness Frances Smith and State Attorney Investigator Robert Daniels in violation of Brady v. Maryland, 373 U.S. 83 (1963); (2) whether an important witness (Deborah Hanzel) recanted her trial testimony; (3) whether the circuit court failed to allow a full and fair hearing; (4) whether there was judicial bias during the retrial proceedings; and (5) whether Lambrix is entitled to a new trial because he is actually innocent (We reject without discussion Lambrix’s claim that he is entitled to relitigate whether he is innocent of the crime based on Schlup v. Delo, 513 U.S. 298 (1995). Lambrix mischaracterizes the holding of Schlup, which does not provide a freestanding claim to relitigate claims that are procedurally barred.)

Alleged Sexual Relationship: We conclude that there is no basis in the record to reject the trial court’s factual finding that no sexual encounter occurred between Smith and Daniels. However, even if the circuit court had accepted the testimony that a one-time sexual encounter had occurred, we would conclude that Lambrix cannot show prejudice, which is the third critical prong of a Brady claim. To meet the requirements of Brady, Lambrix must show that (1) favorable evidence—either exculpatory or impeaching, (2) was willfully or inadvertently suppressed by the State, and (3) because the evidence was material, the defendant was prejudiced. To meet the materiality prong, the defendant must demonstrate ―a reasonable probability that the jury verdict would have been different had the suppressed information been used at trial. A reasonable probability is a probability sufficient to undermine our confidence in the outcome.

An affair between the State’s key witness and the state attorney investigator would be considered favorable evidence. However, Lambrix cannot demonstrate prejudice—that this suppressed evidence was sufficient to undermine confidence in the outcome.

Alleged Recantation of Deborah Hanzel: In his second claim, Lambrix asserts that the postconviction court erred in failing to find that witness Deborah Hanzel recanted and that Smith and a state agent coerced her to lie. This claim is based on the newly discovered evidence of Hanzel’s recent testimony. To set aside a conviction based on newly discovered evidence, Lambrix must meet two prongs: (1) the ―asserted facts must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known them by the use of diligence; and (2) ―the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial.

As this Court has noted repeatedly, recanted testimony is exceedingly unreliable. When reviewing a trial court’s determination relating to the credibility of a recantation, this Court is highly deferential to the trial court and will affirm the lower court’s determination so long as it is supported by competent, substantial evidence. Having reviewed the full record and the postconviction court’s findings, we conclude that there is competent, substantial evidence for the court’s ruling.

Further, even if Hanzel had not testified at trial that Lambrix stated he killed two people, the recantation would not be of such a nature that it would ―probably produce an acquittal on retrial. Hanzel never recanted her testimony that Lambrix offered to show her where two bodies were buried. Even without Hanzel’s testimony, there would still be the testimony of Branch that he heard Lambrix make statements similar to those to which Hanzel testified.

Moreover, Hanzel was not the main witness to testify against Lambrix. Even without her testimony, there would still be the testimony of Lambrix himself at this most recent evidentiary hearing that he struck one of the victims using a tire iron, although he denied that he intended to kill either victim. Further, there was other significant evidence at the trial that pointed to Lambrix as the perpetrator of these murders. This evidence included the following: Smith’s testimony regarding the murders and that Lambrix threatened her if she did not help him bury the bodies; Deputy Sheriff Ron Council’s testimony that he saw Lambrix and Smith with the victims on the night of the murders; John Chezum’s testimony that on February 6 around 2:30 in the morning, Lambrix drove up in a car that resembled the victims’ car and asked to borrow a shovel; and the victims were found buried near the trailer in which Lambrix was living. For the reasons above, Lambrix is not entitled to relief on this claim.

Whether Lambrix Was Given a Full and Fair Hearing: In his third claim, Lambrix asserts that the postconviction court prevented Lambrix from presenting various witnesses who would have supported Hanzel’s recantation, thus denying him a full and fair evidentiary hearing. None of the general testimony of the expert witnesses or the lay witnesses would have been relevant to either the Brady or newly discovered evidence claims in this case. Accordingly, because the trial court did not abuse its discretion in refusing to admit this testimony, we deny this claim.

Alleged Judicial Bias: The fourth and last issue we address is Lambrix’s claim that newly discovered evidence established that his trial judge was biased. He based this claim on statements Judge Stanley made during a January 1997 evidentiary hearing in another death penalty case, which involved defendant Raleigh Porter. In that case, Judge Stanley overrode the jury’s recommendation of life and imposed a death sentence.

In Porter, we never held that the trial judge was unable to be impartial in all capital cases, but held only that Judge Stanley lacked the necessary impartiality as to the sentencing phase of Porter’s trial. Porter, 723 So. 2d at 198-99. This case does not involve a judicial override of a life recommendation or any statements attributable to Judge Stanley indicating a predisposition to sentence Lambrix to death. This Court has recognized that judicial misconduct in one case does not mean that courts must presume misconduct in all cases. Accordingly, we deny this claim and hold that Lambrix is not entitled to relief.

Accordingly, we affirm the circuit court’s denial of Lambrix’s successive motion for postconviction relief.

In Re: Revisions To Simplified Forms Pursuant To Rule 10-2.1(A) Of The Rules Regulating The Florida Bar (SC09-250)

SUMMARY: 7-0 Decision. Under Rule Regulating the Florida Bar 10-2.1(a), Unlicensed Practice of Law, nonlawyers may assist persons in filling out legal forms approved by the Florida Supreme Court. We hereby approve amendments to the following forms as shown in the appendix to this opinion: (1) Residential Lease for Single Family Home and Duplex (for a term not to exceed one year); (2) Residential Lease for Apartment or Unit in Multi-Family Rental Housing (Other than a Duplex) Including a Mobile Home (for a term not to exceed one year); and (3) Residential Landlord-Tenant Forms. Added language is underlined and deleted language is struck through. We express no opinion as to whether the approved lease forms comport with current law.

See the appendix of the decision for these forms in their correct formatting.

In Re: Amendments To Standard Jury Instructions In Criminal Cases – Instruction 7.7 (SC10-113)

SUMMARY: 7-0 Decision. Following the Court's decision in State v. Montgomery that the use of Fla. Std. Jury Instr. (Crim.) 7.7 regarding manslaughter was fundamental error; the Court has amended the instruction for immediate use. See the appendix of the decision for the the new rule including new language in bold and old language that is struck-through.

State of Florida v. Steven W. Montgomery (SC09-332)

SUMMARY: 7-0 Decision. The 1st DCA certified the follwoing question of great public importance: IS THE STATE REQUIRED TO PROVE THAT THE DEFENDANT INTENDED TO KILL THE VICTIM IN ORDER TO ESTABLISH THE CRIME OF MANSLAUGHTER BY ACT? No. As to intent, the State only needs to prove the defendant intended to commit the act itself, not the death. The former standard jury instruction that included the element "Defendant intentionally caused the death of the victim" was incorrect.

In Montgomery's prosecution for first degree murder, the jury was given the standard instructions for lesser included offenses. Those instructions were for second degree murder and the incorrect instruction for manslaughter. The jury convicted Montgomery of second degree murder. The 1st DCA held it was fundamental error to give the jury the wrong instruction for manslaughter and overturned Montgomery's second degree murder conviction. The 1st DCA remanded the case to the trial court for a new trial. The Court approved the 1st DCA's decision and answered the certified question in the negative.

Montgomery appealed his conviction and sentence to the First District Court of Appeal where he raised four issues, including a challenge to the standard jury instruction on manslaughter. Asserting that the crime of manslaughter by act does

not require an intent to kill, Montgomery argued that the trial court committed fundamental error in instructing the jury on the elements of manslaughter by act because the standard jury instruction required the State to prove that he intended to cause the death of Ellis. The district court ruled solely on the issue of the standard jury instruction on manslaughter and held that the instruction erroneously required a finding that Montgomery intended to kill Ellis. Moreover, the district court concluded that in Montgomery‘s case, the use of the erroneous manslaughter instruction constituted fundamental error. Consequently, the court reversed Montgomery‘s conviction and sentence for second-degree murder and remanded the case to the trial court. In doing so, the district court certified a question of great public importance and certified conflict with a decision from the Fifth District Court of Appeal.

First, we conclude that under Florida law, the crime of manslaughter by act does not require that the State prove that the defendant intended to kill the victim.

Second,

we address whether the language in the standard jury instruction required proof of Montgomery‘s intent to kill Ellis. At the time of Montgomery‘s trial in 2007, the standard jury instruction on manslaughter by act provided in relevant part:

To prove the crime of Manslaughter, the State must prove the following two elements beyond a reasonable doubt: 1. (Victim) is dead. 2. a. (Defendant) intentionally caused the death of (victim). . . . . However, the defendant cannot be guilty of manslaughter if the killing was either justifiable or excusable homicide as I have previously explained those terms. In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death.

Fla. Std. Jury Instr. (Crim.) 7.7 (2006)

Both parties and the district court agree that this jury instruction required the jury to find that the defendant intended to kill the victim in order to convict Montgomery of manslaughter. The focus of our analysis is on the second element of the jury instruction, which provided that the State must prove that the defendant intentionally caused the death of the victim. Although the instruction also provided that ―it is not necessary for the State to prove that the defendant had a premeditated intent to cause death, we conclude that this language was insufficient to erode the import of the second element: that the jury must find that

the defendant intended to cause the death of the victim. We agree with the district court‘s observation in Montgomery that a reasonable jury would believe that in order to convict Montgomery of manslaughter by act, it had to find that he intended to kill Ellis.

Third, we discuss whether the use of the standard manslaughter jury instruction constituted fundamental error in Montgomery‘s case. Montgomery was entitled to an accurate instruction on the lesser included offense of manslaughter. The instruction in this case, requiring the jury to find that Montgomery intended to kill Ellis, erroneously explained Florida law on manslaughter by act. Moreover, it was ―pertinent or material to what the jury must consider in order to convict. Thus, we conclude that fundamental error occurred in this case, where Montgomery was indicted and tried for first-degree murder and ultimately convicted of second-degree murder after the jury was erroneously instructed on the lesser included offense of manslaughter.

In conclusion, we approve the decision of the First District Court of Appeal to the extent that it held that manslaughter by act does not require proof that the defendant intended to kill the victim and concluding that in this case, the use of the standard jury instruction on manslaughter constituted fundamental error. We

answer the certified question in the negative and hold that the crime of manslaughter by act does not require that the State prove that the defendant intended to kill the victim. We further hold that the intent which the State must prove for the purpose of manslaughter by act is the intent to commit an act that was not justified or excusable, which caused the death of the victim. Moreover, we conclude that the use of the standard jury instruction on manslaughter constituted fundamental, reversible error in Montgomery‘s case and requires that Montgomery receive a new trial. Given our resolution of the certified question, we do not reach the certified conflict.

John Rando, Et Al. v. Government Employees Insurance Company (SC09-240)

SUMMARY: 7-0 Decision. The Court held that section 627.727, Florida Statutes, has specific requirements regarding what an insurance company must do to prevent paying uninsured motorist (UM) benefits on multiple policies for multiple vehicles held by one insured. One of these statutory requirements is that the insurance company must obtain informed consent from its insured when it will not allow "stacking" of UM benefits. Although GEICO's insurance policy had a provision that prevented "stacking" of UM benefits, GEICO did not follow the requirements of F.S. 627.727. Therefore, GEICO's provision that prevented "stacking" was unenforceable

Florida resident John Rando sustained permanent, life-altering injuries in a 2005 automobile accident. The accident occurred in Florida and was caused by an underinsured driver. At the time of the accident, John Rando and his wife Gail Rando were the named insureds on two motor vehicle insurance policies issued by GEICO. One policy, the Florida policy, covered two vehicles that were registered and principally garaged in Florida. The second policy, the Delaware policy, covered a vehicle that was registered and principally garaged in Delaware, where the Randos’ daughter resided. The Randos lived in Delaware until 2004, when they moved to Florida and established residency here. The Delaware policy was executed, issued and delivered in Florida. There was no express choice of law provision in the Delaware policy.

Each of the Randos’ motor vehicle policies provided uninsured motorist coverage, and the Randos paid premiums for coverage on each vehicle. Following the accident, the Randos were paid the full amount of uninsured motorist benefits under the Florida policy. However, they were denied benefits under the Delaware policy because of a provision that prohibited the combining, or stacking, of uninsured motorist benefits from separate GEICO motor vehicle policies. The anti-stacking provision in the Delaware policy stated: If separate policies with us are in effect for you or any person in your household, they may not be combined to increase the limit of our liability for a loss.

Because the Delaware policy was executed, issued, and delivered in Florida, it is the law of Florida that forms the basis for our interpretation of the parties’ rights and liabilities in this case. Florida’s public policy, as reflected in section 627.727, Florida Statutes, favors the providing of insurance coverage for losses caused by uninsured motorists. Uninsured motorist protection does not inure to a particular motor vehicle, but instead protects the named insured or insured members of his family against bodily injury inflicted by the negligence of any uninsured motorist under whatever conditions, locations, or circumstances any of such insureds happen to be in at the time.

In the event of a loss caused by an uninsured motorist, stacking allows an insured who pays separate premiums for uninsured motorist coverage to obtain benefits for each premium paid. Florida law with respect to the stacking of uninsured motorist coverage has evolved over the last four decades. At present, although Florida law prohibits the stacking of most forms of motor vehicle insurance coverage, uninsured motorist coverage is expressly excluded from this prohibition. See § 627.4132, Fla. Stat. (2009) (providing that the prohibition against stacking of motor vehicle insurance policies contained in that statute “does not apply . . . [t]o uninsured motorist coverage”). Therefore, the stacking of uninsured motorist coverage is permissible under Florida law.

The stacking limitation in subsection (9)(a), which provides that insurers may issue a policy stating that “[t]he coverage provided as to two or more motor vehicles shall not be added together to determine the limit of insurance coverage available to an injured person for any one accident,” is akin to the anti-stacking provision contained in the Randos’ Delaware policy. However, section 627.727(9) also places limitations on how an insurer may restrict uninsured motorist coverage. Thus, while section 627.727(9) provides insurers with a mechanism to provide less coverage to an insured, it also protects the insured by requiring that the insurer obtain informed consent from the insured. Using a form approved by the Office of Insurance Regulation (OIR), the insurer shall inform the named insured of the limitations authorized by section 627.727(9), and advise the insured that the offer is an alternative to a policy without those limitations. The insured’s signature on the OIR-approved form establishes an informed and knowing acceptance of the limitations. Additionally, the statute requires the insurer to file revised rates that reflect a minimum of a twenty percent decrease in rates as a result of the limited coverage.

It is this requirement that we conclude dictates the outcome in this case. GEICO concedes that it did not obtain informed consent from the Randos for the anti-stacking provision. Consequently, the anti-stacking provision is unenforceable under Florida law because GEICO did not satisfy the informed consent requirement.

Marshall Lee Gore v. State of Florida (SC07-678)

SUMMARY: 7-0 Decision. Defendant, Marshall Lee Gore, is currently on death row following a conviction for first degree murder. Pursuant to Fla. R. Crim. P. 3.853, Mr. Gore filed a pro se motion to demand DNA testing of numerous items found at the crime scene. Because Mr. Gore did not explain how the DNA results of these items would actually exonerate him, the trial court denied his motion. The appeal went directly to the Supreme Court of Florida. The Court affirmed.

The clear requirement of the provisions of section 3.853 is that a movant, in pleading the requirements of rule 3.853, must lay out with specificity how the DNA testing of each item requested to be tested would give rise to a reasonable probability of acquittal or a lesser sentence. In order for the trial court to make the required findings, the movant must demonstrate the nexus between the potential results of DNA testing on each piece of evidence and the issues in the case.

This Court has previously explained that it is the defendant‘s burden to explain, with reference to specific facts about the crime and the items requested to be tested, how the DNA testing will exonerate the defendant of the crime or will mitigate the defendant‘s sentence. The burden is on the movant to demonstrate the nexus between the potential results of DNA testing on each piece of evidence and the issues in the case. This Court has rejected claims where the defendant was merely speculating and has repeatedly cautioned that Rule 3.853 is not intended to be a fishing expedition.Gore has not met his burden and, accordingly, we affirm the trial court‘s denial of DNA testing on the items collected during the investigation of this case.

Commentary: This case appears to involve a frivolous pro se motion from an inmate who has been on death row for nearly 20 years.

Inquiry Concerning A Judge, Nos. 08-392 and 08-360 Re: Angela Dempsey (SC09-1747)

SUMMARY: 7-0 decision. The Court responded to a complaint brought by the JQC against 2nd Circuit Judge Angela Dempsey for misrepresentations made by her campaign during her election. Judge Dempsey admitted the misconduct and took responsibility for the activities of those working for her campaign. The Court followed the JQC's recommendation of a public reprimand.

The case at bar arises from formal charges brought by the Judicial Qualifications Commission (JQC) against Judge Angela Dempsey. Pursuant to Canon 7A(3)(b) of the Code of Judicial Conduct, Judge Dempsey is responsible for the conduct of her political consultant. In the Notice of Formal Charges, the JQC accuses Judge Dempsey of engaging in improper conduct in violation of Canon 7A(3)(d)(ii) of the Code of Judicial Conduct1 during her 2008 campaign for the Circuit Court judgeship in the Second Judicial Circuit which she now holds. The JQC‟s Notice of Formal Charges states in pertinent part:

1. During the campaign, an advertisement appeared on YouTube entitled “re-elect” Judge Dempsey when you had not previously been elected to the circuit court but instead had been appointed to the bench in 2005, in violation of Canon 7(A)(3)(d)(ii) of the Code of Judicial Conduct.

2. During the campaign, one of your mailers represented to the voting public that you had 20 years of legal experience when in fact you were not admitted to practice law until 1994, in violation of Canon 7A(3)(d)(ii) of the Code of Judicial Conduct.

These Acts, if they occurred as alleged, would impair the confidence of the citizens of this state in the integrity of the judicial system and in you as a judge, would constitute a violation of the cited Canon of the Code of Judicial Conduct, and would warrant discipline, including but not limited to your removal from office and/or any other appropriate discipline recommended by the Florida Judicial Qualifications Commission.

On January 29, 2009, Judge Dempsey testified under oath and admitted to the alleged conduct at a hearing before the investigative panel. Subsequently, Judge Dempsey entered into a factual stipulation with the JQC admitting the charges, waived her right to a plenary hearing before the hearing panel of the JQC, apologized for her improper conduct, and accepted the public reprimand as recommended by the panel. Thereafter, the JQC panel made its findings and recommendations of discipline, in which it stated:

1. On January 29, 2009, the Investigative Panel of the Judicial Qualifications Commission served a Notice of Investigation on Circuit Court Judge Angela Dempsey (“Judge Dempsey”) pursuant to Rule 6(b), Judicial Qualification Commission. The investigation is based on information received regarding Judge Dempsey‟s conduct during her 2008 campaign for the Circuit Court Judgeship in the Second Judicial Circuit which she now holds.

2. The Investigative Panel has now entered into a Stipulation with Judge Dempsey in which she admits to the conduct set forth in paragraph 5 of the Stipulation.

3. Judge Dempsey has admitted the foregoing, accepts full responsibility, and acknowledges that such conduct should not have occurred. The Investigative Panel has concluded and therefore finds and recommends that the interests of justice, the public welfare and sound judicial administration will be served by a public reprimand of Judge Dempsey.

The Court concluded that there was clear and convincing evidence in support of the JQC's findings of fact as to both charges. The Court commanded Judge Dempsey to appear before it for the administration of a public reprimand at a time to be established by the Clerk of Court.

In Re: Amendments To The Florida Rules For Certified And Court-Appointed Mediators (SC09-1384)

SUMMARY: 7-0 decision. The Court adopted the Committee's proposed rule change but amended some of the Committee's recommended commentary. The rule places additional advertising restrictions on certified and court-appointed mediators. The rule limits, inter alia, the way former judges market themselves as mediators.

In order to reflect the expanded content of rule 10.610, the title is changed from “Advertising” to “Marketing Practices.” The rule itself, as amended, includes six new subdivisions. Subdivision (a) incorporates text from the current rule with only minor revisions. This subdivision generally precludes the use of any false or misleading marketing practices. Subdivision (b) prohibits a mediator from engaging in any marketing practice that identifies the mediator as “Supreme Court Certified,” unless such practice also identifies one or more specific areas in which the mediator is certified. Similarly, under subdivision (c), mediators are prohibited from engaging in a marketing practice that advertises the mediator as “certified,” unless the mediator obtained such certification through successful completion of an established certification process and the advertisement clearly identifies the entity issuing the certification. Subdivision (d) provides that advertising or marketing materials will be deemed “misleading” if the mediator states or implies that prior adjudicative experience makes one a better or more-qualified mediator. Subdivision (e), like subdivision (a), incorporates language taken without change from the existing rule. It states that mediators shall be prohibited from engaging in marketing practices that promise clients specific results or outcomes. Finally, subdivision (f) precludes a mediator from engaging in any other marketing practice that “diminishes the importance of a party’s right to self-determination or the impartiality of the mediator, or that demeans the dignity of the mediation process or the judicial system.”

The Court added this commentary: The roles of a mediator and an adjudicator are fundamentally distinct. The integrity of the judicial system may be impugned when the prestige of the judicial office is used for commercial purposes. When engaging in any mediation marketing practice, a former adjudicative officer should not lend the prestige of the judicial office to advance private interests in a manner inconsistent with this rule. For example, the depiction of a mediator in judicial robes or use of the word “judge” with or without modifiers to the mediator’s name would be inappropriate. However, an accurate representation of the mediator’s judicial experience would not be inappropriate.

Vanessa Van Vorgue v. Mara M. Rankin (SC08-2255)

SUMMARY: 7-0 decision. The Court reversed the 3rd DCA's order of disbursement of escrow funds under injunctive relief principles when there was a clear escrow agreement between the parties. Furthermore, the trial court's refusal to disburse escrow funds to one of the parties was not an injunction because it was not restricting the use of funds (the disputed funds were already restricted pursuant to an independent escrow agreement between the parties).

It is entirely settled by a long and unbroken line of Florida cases that in an action at law for money damages, there is simply no judicial authority for an order requiring the deposit of the amount in controversy into the registry of the court or indeed for any restraint upon the use of a defendant’s unrestricted assets prior to the entry of judgment. In contrast, the trial court’s order denying the release of funds in Rankin was not in the nature of an injunction because it did not restrict previously unrestricted funds.

Here, unlike in the three cases relied on by the Third District, the funds were restricted funds, already being held in escrow by a third party by agreement of the parties. Because the disputed funds were held pursuant to the terms of an escrow agreement created to facilitate a sale and protect the parties’ interests by holding the funds while disputes were pending, the Third District erred by relying on injunctive principles of law that apply when there are no such escrow agreements.

Attorney’s Title Insurance Fund, Inc., v. Joseph W. Gorka, Et Al. (SC08-1899)

SUMMARY: 4-3 decision. The Court resolved a conflict between the 2nd DCA and 1st DCA addressing the validity and enforceability of a joint offer or proposal of settlement that is conditioned on the mutual acceptance of all joint offerees. That type of joint offer is invalid and unenforceable because it is conditioned such that neither offeree can independently evaluate or settle his or her respective claim by accepting the proposal.

Before trial, Attorneys' Title served a proposal for settlement on the respondents pursuant to section 768.79, Florida Statutes (2004), and Florida Rule of Civil Procedure 1.442, which offered a payment of $12,500 to each party in full settlement of all claimed damages, attorneys' fees, and costs. However, the proposal stated: This offer is conditioned upon the offer being accepted by both John W. Gorka and Laurel Lee Larson. In other words, the offer can only be accepted if both John W. Gorka and Laurel Lee Larson accept and neither Plaintiff can independently accept the offer without their co-plaintiff joining in the settlement. Subsequently, Attorneys‟ Title filed a motion to tax fees and costs against the respondents pursuant to the unaccepted proposal for settlement.

Section 768.79 generally creates a right to recover reasonable costs and attorney fees when a party has satisfied the terms of the statute and rule. It provides a sanction against a party who unreasonably rejects a settlement offer. In this case, the proposal for settlement was invalid and unenforceable because it was conditioned upon both of them accepting the amounts offered and specifies that neither of them may independently accept the amount offered. By so conditioning the proposal, neither Gorka nor Larson could independently settle his or her respective claim by accepting the proposal. If one wished to accept but the other elected not to accept, the acceptance would not be effective. In this scenario, the offeree who wished to accept would be exposed to the fee sanction under section 768.79 and rule 1.442 due to the conduct of the other offeree rather than as a result of his or her independent decision to reject the proposal.

Polston, Quince, and Canady dissented finding nothing in the statute or rule to prohibit this type of joint offer conditioned upon acceptance of all parties.

Blekley Coicou v. State Of Florida (SC04-637)

SUMMARY: 6-0 decision. The 3rd DCA was reversed for directing the trial court to enter a judgment of conviction on a "lesser included offense." The Court held that attempted second-degree murder is not a necessarily lesser-included offense of attempted first-degree felony murder because attempted second-degree murder contains an element, a depraved mind, that is not an element of attempted first-degree felony murder.

The jury convicted Coicou of attempted first-degree felony murder with a firearm. The jury specifically found that Coicou committed a robbery and used a firearm. On appeal, Coicou argued that the trial court fundamentally erred by convicting him of attempted felony murder because the State used the same act, the shooting of the victim, to prove both the attempted felony murder and the underlying felony offense.

The district court agreed that Coicou‟s conviction and sentence for attempted felony murder should be reversed. However, the court did not agree that Coicou should be discharged. The court held that under section 924.34, Florida Statutes (2001), Coicou‟s conviction should be reduced to a permissive lesser-included offense, attempted second-degree murder. The Third District remanded to the trial court with directions to enter a judgment of conviction for attempted second-degree murder.

Attempted second-degree murder is not a necessarily lesser-included offense of attempted first-degree felony murder because attempted second-degree murder contains an element, a depraved mind, that is not an element of attempted first-degree felony murder. Accordingly, pursuant to section 924.34, Florida Statutes (2001), it was improper for the Third District to remand to the trial court with directions to enter a judgment of conviction for attempted second-degree murder. The proper remedy is remand to the trial court for retrial on any lesser offenses contained in the charging instrument and instructed on at trial.