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Brooke Elvington, P.A.

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Manifest Injustice Doctrine is alive and well…

By:  Brooke Elvington


Haager v. State, 2D08-4801

Fla. 2d DCA June 4, 2010


            The Second District Court of Appeal reversed a thirty-year old case under the manifest injustice doctrine, despite previously affirming the defendant’s sentence.  In Haager v. State, the defendant was convicted in 1975 of two counts robbery and four counts rape.  The court sentenced the defendant to forty years for the robbery, and life for the rape counts.  The court also determined that the defendant was a “mentally disordered sex offender” pursuant to Florida Statutes Chapter 917 (1974).  Under that statute, the court was required to defer sentencing until the defendant recovered from his disorder and was no longer a menace to others; however, the trial court failed to follow the required statutory procedure. 


            In 2006, the defendant filed a motion to correct sentencing error under Rule 3.800, however, the trial court denied the motion, and the Second District affirmed the lower court’s order. Two years later, the defendant filed a motion, raising the same claim under Rules 3.170 and 3.850 seeking to withdraw his plea.  The trial court denied relief because the claim was untimely under both rules of procedure.  The defendant then filed a motion for rehearing and argued that his motion should be treated as a writ of habeas corpus, and that relief was required because his sentence constituted a manifest injustice.  In support of his claim, the defendant established that his co-defendant’s sentence was reversed because of the same procedural error. 


            Although the Second District recognized that this claim had been argued a number of times, and affirmed on direct appeal, it reconsidered the matter because it agreed with the defendant’s assertion that his illegal sentence constituted a manifest injustice.  The Court emphasized the fact that to “prevent a manifest injustice and a denial of due process, relief may be afforded even to a litigant raising a successive claim.”  Id. citing Stephens v. State, 974 So. 2d 455, 457 (Fla. 2d DCA 2008).  After thirty years, and several unsuccessful challenges, the pro se litigant obtained relief and was awarded a new sentencing hearing.


            This case highlights an interesting avenue of attack often overlooked.  Although the Haager case is one of unusual circumstances, there are undoubtedly many other cases that have been decided incorrectly, and could be subject to the same argument regardless of the number of previous challenges.  


Life without Parole…Unconstitutional for some juvenile offenders

By:  Brooke Elvington

Graham v. Florida

560 U.S. _______ (2010)

May 17, 2010


            The United States Supreme Court, for the first time, held that life without parole sentences categorically violate the Eighth Amendment’s clause prohibiting cruel and unusual punishment for juvenile (non-homicide) offenders.   


            Florida abolished its parole system; thus, life sentences for any offender equate to natural life.  An inmate will die in prison absent the remote hope of executive clemency.  There is no question that such a sentence imposes the harshest possible penalty second only to death by execution.  The United States is the only country in the world that imposes life without parole sentences for juveniles convicted of non-homicide offenses.  Id. at 30.  That being said, the Highest Court has yet, prior to the issuance of the Graham opinion, held that such sentences categorically violate our Constitution. 


            Graham offers several points worth noting.  First, the Court does not hold that an offender cannot be sentenced to life in prison.  To the contrary, the Court specifically states that the, “Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life.  It does forbid states from making the judgment at the outset that those offenders never will be fit to reenter society.”  Id. at 24.  Thus, juvenile offenders may be sentenced to life, but not without the possibility of release. In Florida, since parole has been abolished by the legislature, this poses a significant concern.  For those offenders that challenge their sentences under the Graham holding, the court seemingly must impose a term of years sentence that offers that offender some hope of release.  How courts will interpret this, and how the legislature will respond, is yet to be seen. 


            The second point is for attorneys.  Mr. Graham’s counsel filed a motion to correct illegal sentence pursuant to Florida Rules of Criminal Procedure 3.800(b)(2). Obviously, prior to the Graham opinion, caselaw arguably did not support the proposition that the sentence was unconstitutional.  Thus, it is certainly not inconceivable that most attorneys may have rejected such a motion.  However, it was counsel’s decision to file the motion that made it possible for the issue to be raised before Florida’s First District Court of Appeal, to the Federal Circuit, and ultimately to the United States Supreme Court.  I suppose the lesson here is that arguing novel theories may seem absurd in most cases; however, in those rare cases such as Graham, the decision may open the door to brand new law. 


            The third point is for those offenders directly affected by the Graham opinion.  It is unclear how courts will treat these juvenile offenders.  However, what is clear is that these individuals have recourse under Rule 3.800(a) to have their sentences vacated. Since Florida courts are without authority to reimpose a life sentence with the possibility of parole, (until/unless the Florida legislature deals with the parole issue), courts may attempt to impose a term-of-years sentence that mimics a life sentence.  It is easy to imagine a scenario where the court strikes the life sentence and then imposes a 99-year sentence in lieu of life.  However, such a sentence may itself violate the dictates of Graham, wherein the Court emphasized the point that a juvenile offender must have hope of redemption, hope of release.  In Florida, extreme term-of-year sentences would not offer such hope; rather, they would duplicate a life sentence without actually calling the sentence, “life.”  Thus, it seems that we will be left with years of litigation, but welcome litigation nonetheless. 


Criminal defense counsel must advise a noncitizen of the possibility of adverse immigration consequences…

By:  Brooke Elvington


Padilla v. Kentucky

559 US __________ (2010)

March 31, 2010


Florida courts have long held that a defense attorney need not advise a client of adverse immigration consequences in connection with a criminal conviction.  See Fundora v. State, 513 So. 2d 122 (Fla. 1987).  Courts reasoned that immigration consequences were merely collateral to a criminal conviction, and since defense counsel was not obligated under the Sixth Amendment to advise of collateral consequences, the failure to do so could not constitute ineffective assistance of counsel.  See id. 


The Padilla opinion dramatically alters a defense attorney’s duties under the Sixth Amendment as it pertains to immigration, and potentially opens the door to a number of post conviction claims outside of the two-year time limit under Rule 3.850. 


In Padilla, the defendant, a permanent resident of the United States for more than forty years, was convicted of trafficking marijuana.  Padilla claimed that his counsel failed to advise him that he could be deported to his native Honduras as a result of the plea. Padilla further claimed that his counsel offered affirmative misadvice by telling him that he would not be deported because of his length of time in the United States.  Padilla filed a claim to vacate his plea in Kentucky state court alleging ineffective assistance of counsel.  The state court denied his claim summarily because it held that counsel was not required, as a matter of law, to advise a client of adverse immigration consequences. 


The Supreme Court reversed the decision and held, for the first time, that defense counsel has a duty, under the Sixth Amendment, to advise a noncitizen client of the possibility of adverse immigration consequences.  How to apply the Court’s reasoning is a seemingly difficult task.


In addressing whether immigration consequences were “collateral” to the plea, the Court emphasized that it has never applied a distinction between direct and collateral consequences in defining the scope of “constitutionally reasonable professional assistance” as required under Strickland v. Washington.  However, “deportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or collateral consequence. The collateral versus direct distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation.”  It is clear that the Court simply rejected labeling immigration as a collateral consequence because of its obvious connection to the criminal sentence. 


Thus, if immigration cannot be deemed “collateral,” and if counsel thereby has an obligation to offer advise, the question becomes, what advice must counsel offer?  The Court offers rather confusing assistance in this matter. Essentially, it states that where the immigration consequences are “clear” under such statutes as USC 1227(a)(2)(B)(i), then counsel has a duty to fully advise a client of all of the possible ramifications.  But, where the immigration consequences are not so clear, counsel must only advise that a criminal conviction may result in adverse immigration proceedings. The latter scenario mimics the current requirement under Florida Rule of Criminal Procedure 3.172(c)(viii) which requires that the trial court advise a defendant that he/she may be subject to adverse immigration proceedings.  However, 3.172(c)(viii) may not offer sufficient advice under Padilla where the immigration consequences are unquestionable.  It appears, at least to me, that the scope of an attorney’s duty to advise is a matter of interpretation.  That said, there is no question that under Padilla, an attorney’s duty to advise a noncitizen just grew exponentially.


  It is clear that Padilla changes the landscape of post conviction litigation as it applies to an attorney’s duty to offer advice on immigration matters.  The question then becomes whether the change in law will open a floodgate of potential 3.850 claims outside of the two-year limitation period. Traditionally, such claims must be brought within two years of final judgment and sentence; however, a criminal defendant in Florida may not have filed such a motion within the two years considering the fact that Florida courts have never held such claims to be facially sufficient.  Rule 3.850(b)(2) permits claims outside of the two-year period where there is a significant change in the law.  Applying Witt v. State, 387 So. 2d 922 (Fla. 1980), a change in law will not apply retroactively under Rule 3.850 unless the change (1) emanates from the State Supreme Court or the US Supreme Court, (2) is constitutional in nature, and (3) constitutes a development of fundamental significance. 


Obviously, the Padilla opinion qualifies under the first two prongs.  Changes of law which constitute a development of fundamental significance will ordinarily fall into one of two categories: (1) the change of law removes from the state the authority to regulate certain conduct or impose certain penalties, or (2) the change is of a sufficient magnitude to require retroactive application as ascertained by the three-part test of Stovall v. Denno, 388 US 293 (1967).  In applying the three-part test, courts will look to the (1) purpose to be served the by the new rule, (2) extent of reliance on the old rule, and (3) the effect that retroactive application of the rule will have on the administration of justice. 


In applying the above factors, it is possible that claims of ineffective assistance of counsel for failure to offer sufficient advice on immigration consequences could be brought forth under Rule 3.850(b)(2) past the two-year time limitation by arguing that the change in law is of a sufficient magnitude to require retroactive application. Of course how courts apply Padilla to Rule 3.850 is an open question.


In addition to the obvious change of law as it applies to an attorney’s affirmative duty, and its application to Rule 3.850, the opinion also raises the possibility, at least in my opinion, that future claims related to other “collateral” consequences of pleas, may be open for review.  The most obvious collateral consequence, to me, is the sex offender designation.  Florida has long held that a sex offender designation,  an effective lifetime scarlet letter, is not a direct consequence of a plea, and as such counsel cannot be deemed ineffective for failing to advise of such.  See State v. Partlow, 840 So. 2d 1040 (Fla. 2003).  The Padilla opinion offers significant support that could be used to challenge such designation. 


As shocking as the opinion may be, Padilla, dramatically changes the landscape of post conviction litigation, and may open the door to even more future challenges.