expectations
©
appellate
raising
Follow Us
National Federal & Florida representation. Global clientele.
The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Your contact with this firm reflects your understanding and agreement with these statements.
Recommendations or testimonials are not necessarily representative of results obtained, or all clients’ experiences with the lawyer. Facts and circumstances may differ from the matter(s) in which the results or recommendations are provided. Decisions about any lawyer are important and should not be based solely upon what is stated in a social networking site, website or blog. Your contact with this firm reflects your understanding and agreement with these statements.
© 2007-12 Easley Appellate Practice, P.L.L.C. (Since 1994) All rights reserved.
4000 Ponce de León Blvd., Suite 470, Miami, Florida 33146
(800) 216-6185 (305) 444-1599 [email protected]
Criminal law -- Post conviction relief -- Counsel -- Ineffectiveness -- Standard to be applied in establishing prejudice under Strickland v. Washington when a defendant claims ineffectiveness of trial counsel based on failure to preserve a challenge to a potential juror -- Defendant alleging that counsel was ineffective for failing to object or preserve a claim of reversible error in jury selection must demonstrate prejudice at trial, not on appeal -- To establish prejudice, defendant must demonstrate that an actually biased juror served on the jury -- In case at issue, record plainly shows that juror whom counsel unsuccessfully sought to challenge for cause based on exposure to media reports about incident and his having overheard a discussion in a barbershop about the case, held no firm opinion except that he could be fair, listen to the evidence, and follow the law -- Accordingly, defendant failed to establish prejudice
Reported at 32 Fla. L. Weekly S390a
Criminal law -- Search and seizure -- Vehicle stop -- Cracked windshield violates section 316.610 only if it renders vehicle in “such unsafe condition as to endanger any person or property” -- Officer may not stop a vehicle for a windshield crack on basis that crack renders the windshield “not in proper adjustment or repair” -- District court erred in concluding that any visible crack in windshield provided legal basis for traffic stop
Reported at 32 Fla. L. Weekly S401a
Criminal law -- Murder -- Burglary of occupied dwelling with assault -- Kidnapping with deadly weapon -- Robbery -- Burglary of unoccupied conveyance -- Evidence that defendant was on scene of crime, that his fingerprints were on tape used to bind victim and on base of telephone whose cord was used to bind victim, and that the fingerprints were of such nature that they were recent and could reasonably have been placed there on the day of the crime, was sufficient to refute defendant's reasonable hypothesis of innocence that defendant was outside victim's apartment when co-defendant committed crimes inside victim's apartment -- Defendant was erroneously convicted of carjacking where victim was unaware of the theft of his vehicle, and therefore could not have been subjected to the use of force, violence, assault or putting in fear during the course of the taking of the vehicle
Reported at 32 Fla. L. Weekly D1633a
Criminal law -- Search and seizure -- Investigatory stop -- Where officer responded to 911 call stating that two men were selling a jet ski and trailer on the side of the road, a violation of county ordinance, officer observed defendant standing next to a van, jet ski, and trailer parked on side of road upon arriving at specified location, and defendant attempted to flee on bicycle upon seeing officer park his vehicle, officer had reasonable suspicion justifying investigatory stop of defendant -- Standing -- Defendant did not have standing to challenge seizure of stolen jet ski and trailer -- Error to grant defendant's motion to suppress
Reported at 32 Fla. L. Weekly D1631a
Criminal law -- Juveniles -- Trespass -- Closed public park -- Constructive notice that park was closed -- Where juvenile was charged with trespass in park after having received notice against entering or remaining given by posting or fencing, state did not prove strict compliance with requirements for notice by posting, and evidence showed that park was not enclosed by fencing, juvenile was entitled to judgment of acquittal
Reported at 32 Fla. L. Weekly D1640a
Criminal law -- Probation revocation -- Change of residence without approval of probation officer -- No abuse of discretion in determining that defendant's failure to notify probation officer for a period of more than two weeks after defendant removed himself from his residence allegedly because of a domestic dispute made defendant's violation willful and substantial -- Evidence -- Successor judge did not abuse its discretion by considering previously admitted violations in determining whether to revoke probation -- Rule 3.700(c)(1), which requires that a judge who did not take plea or preside at trial of a defendant must familiarize himself or herself with prior proceedings before making sentencing decisions, applies to initial sentencing hearings, but does not extend to violation of probation proceedings -- Further, judge was not relying on prior violations to determine whether defendant violated probation for the acts charged in the affidavit, but instead looked at prior record of violations to determine whether probation should be revoked as result of new violations
Reported at 32 Fla. L. Weekly D1626a
Criminal law -- Escape -- Escape conviction could not be sustained where defendant was never placed under arrest before he fled from officer -- Escape conviction requires actual or constructive seizure or detention of person to be arrested by a person having present power to control the person arrested -- There can be no arrest without either a touching or a submission to authority, and evidence in this case demonstrated nothing more than a show of authority on part of officer, who shouted to defendant that he was under arrest and to put his gun down, in response to which defendant continued to flee up until the time he was shot -- Even if officer's striking defendant with a bullet were characterized as a “physical touching,” such touching could not sustain escape conviction because thereafter defendant never attempted to escape or flee
Reported at 32 Fla. L. Weekly D1629a
Appeals -- Jurisdiction -- Supreme Court -- Conflict -- District court decisions that simply acknowledge, discuss, cite, suggest, or in any other way recognize conflict do not provide proper basis for party to seek Court's review under “certified conflict” jurisdiction -- To support such review, conflict must be “certified” -- Jurisdiction may nevertheless exist under Court's “express and direct conflict” jurisdiction -- Criminal law -- Counsel -- Ineffectiveness -- Claim that counsel was ineffective for failing to request instruction on lesser-included offense may be summarily denied -- Decisions under review, in which district courts acknowledged conflict with another district's decision on this issue, are quashed and remanded for reconsideration in light of Court's decision approving conflicting case
Reported at 32 Fla. L. Weekly S425a
Rules of Criminal Procedure -- Amendments -- Probation and community control -- Lunsford Act Proceedings -- Anti-Murder Act Proceedings -- Adoption of amendments on emergency basis
Reported at 32 Fla. L. Weekly S423a
Criminal law -- Possession and sale of cocaine -- Search and seizure -- Consent -- Error to grant motion to suppress cocaine found on defendant's person based on finding that consent to search was not voluntary because defendant did not understand English -- Because police had probable cause to arrest defendant, consent to search was not required -- Officers had probable cause to arrest defendant after observing hand-to-hand transaction in which individual gave defendant money in exchange for plastic baggy containing white substance which officer testified appeared to be cocaine
Reported at 32 Fla. L. Weekly D1647c
Criminal law -- Post conviction relief -- Newly discovered evidence -- DNA test results which excluded defendant as donor of DNA found on sexual battery victim's underwear and jeans was, under circumstances of case, of such nature that it would probably produce acquittal on retrial -- Identification testimony was conflicting, victim testified that perpetrator of robbery, kidnapping and sexual battery had entered her and ejaculated, and state relied heavily on serologist's testimony that blood type of seminal fluid found on victim's underwear and jeans matched defendant's blood type, that 70% of male population, including defendant, could have contributed the seminal fluid, and that about 22% of the male population had this blood type -- New trial required
Reported at 32 Fla. L. Weekly D1641a
Criminal law -- First degree murder -- Premeditation -- Evidence was sufficient to support premeditation to exclusion of defendant's hypothesis of innocence that gunshot wounds were inflicted during an argument and struggle -- State proved that defendant had threatened to kill victim a month before actual murder, that defendant drew gun on victim during an argument a week prior to murder, and that on night of murder, defendant shot victim three times, twice in the back of the head, and that none of the shots constituted close-contact shots -- Further, victim was found with two telephones in her hands, which was inconsistent with theory that victim was involved in struggle for gun, and amount of force necessary to activate trigger pull militated against an accidental discharge
Reported at 32 Fla. L. Weekly D1645a
Criminal law -- Plea -- Voluntariness -- Post-sentencing motion to withdraw plea -- Counsel -- Thirty-day window period for filing motion to withdraw plea after sentencing is critical stage of criminal proceedings -- Defendant was entitled to appointment of conflict-free counsel to advise and assist hin in preparing motion to withdraw plea -- Providing defendant with conflict-free counsel does not necessarily require trial court to conduct evidentiary hearing -- Remand for appointment of conflict-free counsel to assist defendant in drafting motion -- Trial court should then determine whether state should respond and thereafter determine whether to summarily deny motion to withdraw or hold evidentiary hearing
Reported at 32 Fla. L. Weekly D1642a
Domestic violence -- Evidence was insufficient to support granting of injunction for protection of minor child against domestic violence by mother -- Evidence that mother injured herself and grabbed at the child in an attempt to physically take child from individual who was holding child was not sufficient to establish that child was either victim of domestic violence or in imminent danger of being victimized by mother -- Domestic violence proceeding was not proper forum to address concern about child living alone with mother who had attempted suicide
Reported at 32 Fla. L. Weekly D1663a
Criminal law -- Manslaughter with firearm -- Evidence -- Where defendant presented insanity defense which was largely based upon expert testimony suggesting that defendant's mental health deteriorated over a period of time leading up to the day he lost touch with reality upon discovering his wife, the victim, screaming as she was making a bogus 911 call alleging that defendant had choked her, defendant contended that victim had lied in 911 call and that essence of call was a ruse contrived by victim and her lover to position herself more favorably and gain advantage in subsequent dissolution of marriage proceedings, and both state and defense made 911 call a focal point of their case, trial court abused its discretion in excluding evidence proffered by the defense of hundreds of telephone calls between wife and her lover during three weeks prior to shooting, including a six-minute telephone call made minutes prior to victim's 911 call; a handwritten IOU which had on the reverse side a written note to victim signed by lover imploring victim to hurry up, that he was tired of her wasting time and wanted her with him; and evidence that victim and lover recently opened joint postal box and joint bank account -- New trial required
Reported at 32 Fla. L. Weekly D1682a
