FLORIDA SUPREME COURT

No reversals reported.

FIRST DISTRICT COURT OF APPEAL

No reversals reported.

SECOND DISTRICT COURT OF APPEAL

CLICK TO READ Joseph Coleman v. State of Florida, Docket # 2D18-2143

Appeals his judgment and sentence for attempted first-degree murder and kidnapping entered following retrial on remand from reversal in Coleman v. State, 157 So. 3d 368 (Fla. 2d DCA 2015). Reverse the judgment and conviction for attempted first-degree murder and remand with directions for the trial court to reduce Coleman’s conviction for that offense to the lesser-included offense of attempted second-degree murder and resentence him accordingly.

Found guilty after jury trial. Sentenced to life in prison with a twenty-five year mandatory minimum. Per curiam affirmed. Filed a petition for belated appeal after alleging ineffective assistance of counsel, granted. On that appeal, reversed and remanded for new trial. Erroneously retried on the same charges. Argues that this violated double jeopardy. reverse and remand with directions that the trial court reduce Coleman’s conviction to the lesser-included offense of attempted second-degree murder and resentence him accordingly.

THIRD DISTRICT COURT OF APPEAL

No reversals reported.

FOURTH DISTRICT COURT OF APPEAL

CLICK TO READ Elcin Sibrun v. State of Florida, Docket # 4D19-1629

Appeals his convictions and sentences for one count of lewd or lascivious battery on a person older than twelve years old but less than sixteen years old and seven counts of electronic transmission of material harmful to a minor. Four out of five issues affirmed on appeal. argues that the circuit court erred when it considered his lack of remorse in sentencing him. A court cannot consider a defendant’s “protestations of innocence and failure to show remorse in determining what sentence to impose.” Donaldson v. State, 16 So. 3d 314, 314 (Fla. 4th DCA 2009) (citations omitted); see also Pierre v. State, 259 So. 3d 859, 861–62 (Fla. 4th DCA 2018). Also held that “[r]e-sentencing is required even if a defendant’s refusal to admit guilt was but one of several factors considered by the court in imposing sentence.” James v. State, 264 So. 3d 982, 987 (Fla. 4th DCA 2019) (quoting Johnson v. State, 948 So. 2d 1014, 1017 (Fla. 3d DCA 2017)). Reversed and remanded for resentencing in front of a new judge.

FIFTH DISTRICT COURT OF APPEAL

CLICK TO READ George Fredrick Hicks v. State of Florida, Docket # 5D19-722

Appeals the judgment and sentence entered after a jury found him guilty of violation of injunction against repeat violence and resisting arrest with violence.  Appellant argues that because he had been adjudicated incompetent, it was error for the trial court to proceed to trial without issuing a written order containing findings of his competency. State concedes error.

“Generally, a proper hearing to determine whether competency has been restored after a period of incompetence requires ‘the calling of court-appointed expert witnesses designated under Florida Rule of Criminal Procedure 3.211, a determination of competence to proceed, and the entry of an order finding competence.'” Yancy v. State, 280 So. 3d 1112, 1113 (Fla. 5th DCA 2019) (quoting Dougherty v. State, 149 So. 3d 672, 677 (Fla. 2014)). If the parties and judge agree, “the trial court may decide the issue of competency on the basis of written reports alone.” Id. (quoting Dougherty, 149 So. 3d at 678). If the trial court finds the defendant competent to proceed, “it must enter a written order adjudicating the defendant competent.” Rumph v. State, 217 So. 3d 1092, 1095 (Fla. 5th DCA 2017).

Prior to trial, Appellant underwent court-ordered mental evaluations and was subsequently adjudicated incompetent to proceed. After his commitment to a mental health facility, a psychologist attempted to evaluate Appellant on two occasions, but Appellant was uncooperative. Thus, the psychologist could not opine as to Appellant’s competency. Thereafter, the trial court held a competency hearing and orally ruled that Appellant was competent to stand trial. The transcripts from that hearing show that no expert witnesses were called to testify, and it does not appear that the trial court relied on expert reports to make an independent determination of Appellant’s competency.

Reversed and remanded for the trial court to retroactively determine if Appellant was competent to proceed to trial and to enter a written order nunc pro tunc on Appellant’s competency. If the trial court finds that Appellant’s pre-trial competency cannot be retroactively determined, or if the trial court finds that Appellant was not competent, the trial court must grant Appellant a new trial. See Bynum v. State, 247 So. 3d 601, 604 (Fla. 5th DCA 2018).

CLICK TO READ Titus Onesimus Dodd v. State of Florida, Docket # 5D20-1922

Petitions for a writ of habeas corpus alleging that he was unlawfully detained at the Orange County jail. Grant the petition and direct trial court to hold a prompt hearing to determine appropriate conditions of release and consider ordering a new competency evaluation.

In 2018, Petitioner was found to be incompetent to proceed in Orange County Case Nos. 2017-CF-4793 and 2017-CF-7495. Several days later, the trial court entered an amended order adjudicating Petitioner incompetent to proceed due to intellectual disability or autism. The court found that Petitioner did not meet the criteria for involuntary commitment and ordered him released on conditional release. While on conditional release, Petitioner was arrested for fleeing and attempting to elude (Case No. 2018-CF-16199). When the evidence is insufficient to commit a defendant involuntarily, the trial court’s only option is to release the defendant with the necessary conditions. See Smith, 247 So. 3dat 78. Grant the petition and direct the trial court to hold a prompt hearing to determine appropriate conditions of release and to consider ordering a new evaluation to determine whether Petitioner is now competent to proceed or whether he meets the criteria for involuntary commitment.

ELEVENTH CIRCUIT COURT OF APPEALS

CLICK TO READ United States v. Vanja Abreu, Docket # 18-13965

Dr. Vanja Abreu was convicted after trial of Conspiracy to Commit Healthcare Fraud, 18 U.S.C. § 1349.  She served three years in prison before her conviction was reversed and the case was dismissed due to the insufficiency of the evidence.

Thereafter, Dr. Abreu petitioned the District Court for a Certificate of Innocence pursuant to the Unjust Conviction Statute, 28 U.S.C. §§ 1495, 2513.  A person who obtains this Certificate can seek damages from the United States in the Court of Federal Claims up to $50,000 for every 12 months of incarceration.  In support of her petition, she submitted only a copy of the decision from the Eleventh Circuit which reversed her conviction.  The District Court denied the petition, concluding that she failed to carry her burden of demonstrating innocence under § 2513.

The Eleventh Circuit affirmed.  Just because evidence is legally insufficient does not, by itself, mean that a defendant is actually innocent.  Because Dr. Abreu did not submit any other evidence supporting her claim of innocence, the District Court did not improperly deny her petition.

CLICK TO READ Joe Edwin Rogers, Jr. v. Secretary, Florida Department of Corrections, Docket # 19-12870

Appeal of dismissal of a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.  Petitioner was convicted of Possession of Child Pornography and sentenced to 75 years in prison.  He directly appealed his conviction, and his conviction was affirmed.  Later, he filed a motion for post-conviction relief under Rule 3.850 of the Florida Rules of Criminal Procedure, but the motion was denied.  He also filed a Criminal Habeas Corpus petition in the Florida Fifth District Court of Appeal, arguing ineffective assistance of appellate counsel.  The petition was dismissed in a summary order without an opinion.  Petitioner filed a motion for rehearing and a written opinion, asking for the reasons for the dismissal, but the District Court of Appeal denied the motion without explanation.

The District Court dismissed the habeas corpus petition, finding that the claims of ineffective assistance of appellate counsel on the Criminal Habeas Corpus petition were procedurally defaulted.  The District Court found that the Fifth DCA denied the petition as untimely, and thus his claim was procedurally defaulted.

The Eleventh Circuit affirmed.  When the state court does not explain its decision, the federal habeas court “should ‘look through’ the unexplained decision” to the last reasoned state-court decision and presume that the unexplained decision adopted that same reasoning.  But, where, as here, there is no lower state-court decision to look through to, it may be presumed that the unexplained state-court decision constituted an adjudication on the merits “in the absence of any indication or state-law procedural principles to the contrary.”  The presumption may be overcome when there is reason to think some other explanation for the state court’s decision is more likely.