Criminal Record Expungements: More Good Stuff

In the realm of law, in between the nether world and the iclouds, there is a place where things sometimes seem pretty darn good. Doesn’t mean it is! Or forever will be – but, for now, good. This This is where we find the following two cases (case law):

Shanks v. State, 83 So.3d 1226 (Fla. 1st DCA 2012)

Baker v. State, 53 So.3d 1147 (Fla. 1st DCA 2011)

Both of these cases, for the time being, stop the practice of the State Attorneys going to court unarmed and arguing away a client’s chance to seal or expunge their criminal record without producing a single shred of evidence on which the Court could hang its hat.  With these cases (and others) defense counsel is now sitting in the cat-bird’s seat!

Er, ahh, … for now…

Redacted Record.

Eric J Dirga, PA

Juvenile Search Illegal

D.S. Eaton - NARA - 525516 (Photo credit: Wikipedia)

D.S. (Juvenile) v. State, 37 Fla. L. Weekly D825 (Fla. 3d DCA, Apr 11, 2012): Motion to Suppress denied, Reversed and Remanded.

D.S. appeals from a withhold of adjudication of delinquency entered following an adjudicatory hearing.

D.S. was detained, along with other persons, on suspicion of burglary. He was later arrested for loitering and prowling and for suspected marijuana. He was not under arrest at the time another officer brought D.S. to Officer Lambert, who understood that she was merely detaining him while the other officers finished their investigation. Officer Lambert proceeded to fully search D.S., not pat him down, prior to placing him in her squad car to await the outcome of the investigation. She did not read him his Miranda1 rights, she did not see any bulges that might give her probable cause to search. She testified that she routinely searches suspects prior to placing them in her vehicle as a safety precaution. Upon fully searching D.S., she discovered a baggie of marijuana and at that point she arrested him.

The trial court erroneously denied D.S.’s motion to suppress. D.S. was not under arrest at the time of the search, he was merely detained and awaiting the conclusion of the officers’ investigation into the burglary call.

Officer Lambert’s search of D.S. exceeded her authority where there was no reasonable suspicion to believe D.S. was armed and dangerous, and he had not yet been arrested. See D.B.A. v. State, 962 So. 2d 406 (Fla. 2d DCA 2007) (holding that The Florida Stop and Frisk Law authorizes a limited search to disclose a dangerous weapon where an officer has probable cause to believe that the detainee is armed with a dangerous weapon, that search may not go beyond a pat down of the detainee’s outer clothing, and only if an officer reasonably believes that an object he feels during a pat down is a weapon may he seize the object) (citations omitted). We agree with the holding in T.L.F. v. State, 536 So. 2d 371, 372 (Fla. 2d DCA 1988), which provides that:

Under the circumstances of this case, an arrest would only have been appropriate if probable cause had existed to arrest appellant for the burglary. The police cannot be allowed to use the loitering and prowling statute to detain an individual for another offense for which probable cause is lacking and then use the fruits of the unlawful detention as evidence that the individual committed the other offense. . . . To allow such “bootstrapping” of evidence would lead back to the dark ages when police were able to use the loitering and prowling statute as a catchall charge to arrest persons at their whim.

Hmm, sounds like how Resisting Without Violence is used today…

We conclude that the order denying the motion to suppress should have been granted and accordingly, we reverse D.S.’s adjudication of delinquency and remand with directions that he be discharged.

Eric J Dirga, PA

Another Good Case on Sealing Records

A rejected petition to the Tsar of Russia by US citizens, 1903, now kept at the US National Archives (Photo credit: Wikipedia)

SHANKS v. STATE, 37 Fla. L. Weekly D728a (Fla. 1st DCA, Mar 28, 2012)

Mr. Shanks had entered a plea of nolo contendere to a charge of possession of cocaine, in violation of section 893.13(6)(a), Florida Statutes (2009). The trial court withheld adjudication of guilt and sentenced him to twelve months’ drug offender probation with the special condition that he complete a six-month recovery program. Upon request of his probation officer, Mr. Shanks’ probation was terminated early. He then filed his petition to expunge or seal, which meets all rule and statutory criteria.

(Here is the problem with appealing a petition to seal or to expunge – it defeats the purpose to some degree especially with Google Scholar)

“[O]nce an applicant satisfies the criteria set forth in Rules 3.692 and 3.989(d), the applicant is presumptively entitled to an order to seal or expunge court records. However, the petition is addressed to the sound discretion of the trial court, and the petition may be denied if there is good reason for denial based on the facts and circumstances of the individual case.” Anderson v. State, 692 So. 2d 250, 252 (Fla. 3d DCA 1997) (citation omitted). Here denial in the exercise of sound discretion would have required some good reason based on facts and circumstances of Mr. Shanks’ individual case.

But “[w]ithout [any] evidence at [a] hearing or stating any reason for denying [Mr. Shanks'] request in its order, it appears the trial court had no factual basis to support the denial of [Mr. Shanks'] request to seal his records.” Cole v. State, 941 So. 2d 549, 551 (Fla. 1st DCA 2006). Accordingly, we reverse and remand for further proceedings. See Light v. State, 37 Fla. L. Weekly D386 (Fla. 1st DCA Feb. 14, 2012); Hobbs v. State, 37 Fla. L. Weekly D397 (Fla. 1st DCA Feb. 14, 2012); Baker v. State, 53 So. 3d 1147, 1148-49 (Fla. 1st DCA 2011); VFD v. State, 19 So. 3d 1172, 1175 (Fla. 1st DCA 2009).

(Note: VFD was not a juvenile. It requested this designation on appeal and the District Court followed it)

Eric J Dirga

New Florida Supreme Court Case on Peremptory Challenges

 

"Court Trial of Witches", illustrator unknown (Photo credit: Wikipedia)

HAYES vs. STATE, 37 Fla. L. Weekly S253a (Fla., Apr 5 2012)

Peremptory challenges during jury selection are once again the subject of this Court’s review. More specifically, we address the misapplication by both the trial court and the First District Court of Appeal in Hayes v. State, 45 So. 3d 99 (Fla. 1st DCA 2010), of the procedure this Court set forth in Melbourne v. State, 679 So. 2d 759 (Fla. 1996), for eliminating discrimination during the exercise of peremptory challenges.

In this case, the trial court erred in denying defense counsel’s peremptory challenge to a female juror, notwithstanding the undisputed gender-neutral reason counsel proffered (her relationship to law enforcement officers). The trial court mistakenly assessed defense counsel’s reason as if it were assessing a challenge for cause and failed to perform the critical third step of the Melbourne procedure, which requires an assessment of the genuineness of counsel’s proffered reasons for the strike. Further, the trial court erroneously relieved the State — the opponent of the strike — of its burden to establish that the reason for the challenge, despite being gender-neutral, was pretextual.

On appeal, Hayes argued that the trial court erred in denying his peremptory challenge of juror Haupt, warranting a new trial. He specifically asserted that the trial court’s basis for denying the strike was inapplicable to peremptory challenges because it related to a challenge for cause and that the record did not support the court’s finding that defense counsel’s gender-neutral reason was pretextual under step three of the three-part procedure this Court set forth in Melbourne. The State conceded error, agreeing with Hayes that the trial court engaged in the wrong inquiry and urging the First District to remand for a new trial. Without referencing either Hayes’s contention or the State’s concession that the trial court mistakenly considered the challenge as if it were one for cause, the First District affirmed the trial court’s decision to disallow defense counsel’s strike of juror Haupt.

Without referencing either Hayes’s contention or the State’s concession that the trial court mistakenly considered the challenge as if it were one for cause, the First District affirmed the trial court’s decision to disallow defense counsel’s strike of juror Haupt. In doing so, the district court initially noted that the trial court complied with the first two steps of the Melbourne procedure because the prosecutor requested a gender-neutral reason for the peremptory strike of juror Haupt (step one), and defense counsel offered a facially gender-neutral explanation after the trial court requested that he do so (step two). In turning to step three — the trial court’s assessment of the genuineness of the reason given for the strike — the First District rejected the State’s concession of error and affirmed the trial court’s decision to disallow defense counsel’s challenge since, in the district court’s view, it was not clearly erroneous under the Melbourne standard of review. The district court recognized that under Melbourne, a determination of genuineness turns primarily on credibility and takes into account “all the circumstances surrounding the strike.”

To resolve this issue, we review our precedent regarding peremptory challenges, discuss the applicable standard of review, and then apply our precedent to the facts of this case.

Peremptory and for-cause challenges constitute distinct, but complementary, methods to aid those facing criminal charges in achieving the constitutional right of trial by an impartial jury. While the two types of challenges work in tandem to permit the removal of a potential juror in whom the striking party perceives a certain bias or hostility, peremptory challenges differ considerably from challenges for cause. Affording a criminal defendant the full use of his or her allotted peremptory challenges is an essential part of securing a fair and impartial jury under Florida’s constitution, and his or her use of peremptory challenges is limited only by the rule that such challenges may not be used to exclude prospective jurors because of their race, ethnicity, or gender. to strike the appropriate balance between a party’s right to exercise peremptory challenges and the attempt to eliminate invidious discrimination in juror selection, this Court in Melbourne enunciated a three-step procedure to be followed when a party objects to the exercise of a peremptory challenge on the ground that it was made on a discriminatory basis. First, the objecting party must make a timely objection, show that the venireperson is a member of a distinct protected group, and request that the trial court ask the striking party to provide a reason for the strike. Second, if these initial requirements are met, the court must ask the proponent of the strike to explain the reason for the strike, and the burden shifts to the proponent to come forward with a race-, ethnicity-, or gender-neutral explanation. Third, if the explanation is facially race-, ethnicity-, or gender-neutral, the court must determine whether the explanation is a pretext “given all the circumstances surrounding the strike,” with the focus of this inquiry being the genuineness of the explanation. Compliance with each step is not discretionary, and the proper remedy when the trial court fails to abide by its duty under the Melbourne procedure is to reverse and remand for a new trial.

The proper test under Melbourne requires the trial court’s decision on the ultimate issue of pretext to turn on a judicial assessment of the credibility of the proffered reasons and the attorney or party proffering them, both of which must be weighed in light of the circumstances of the case and the total course of the voir dire in question, as reflected in the record. Despite the need of appellate courts to defer to a trial court’s credibility assessment, this Court has recognized that the clearly erroneous standard is not a mechanism through which appellate courts can simply rubber-stamp the trial court’s ruling. For instance, in Nowell v. State, 998 So. 2d 597 (Fla. 2008), when reversing a trial court’s finding of genuineness because it was unsupported by the record, we explained that although “the trial court is in the best position to assess the genuineness of the reason advanced, and the decision will be affirmed unless clearly erroneous . . . ‘deference does not imply abandonment or abdication of judicial review,’ . . . because ‘[d]eference does not by definition preclude relief.’ An appellate court’s inability to review a trial court’s genuineness inquiry is of particularly great concern when the trial court prohibits a party from striking a juror despite the absence of evidence of discriminatory intent. A trial court’s refusal to permit a peremptory challenge is tantamount to a finding that the strike was being exercised for a discriminatory purpose. Yet, in Melbourne, this Court emphasized the presumption that peremptory challenges are exercised in a nondiscriminatory manner and that the burden of persuasion is on the opponent of the strike to establish support for purposeful discrimination. Therefore, where the record is completely devoid of any indication that the trial court considered circumstances relevant to whether a strike was exercised for a discriminatory purpose, the reviewing court, which is confined to the cold record before it, cannot assume that a genuineness inquiry was actually conducted in order to defer to the trial court. Deferring to the trial court’s genuineness determination on appeal when no such determination has been made invites an arbitrary result. Conversely, where the record supports the conclusion that the trial court has actually considered relevant circumstances surrounding the strike, it is proper for the reviewing court to conclude that a finding has been made, notwithstanding that the trial court did not recite a perfect script or incant “magic” words.

Here, although the defendant sought to strike a juror who had ties to law enforcement, that juror remained on the jury panel. Thus, the defendant’s right to exercise a peremptory challenge was denied absent a concomitant benefit of preventing discrimination in jury selection. Because it misapplied and frustrated the original purpose of Melbourne, we quash the decision of the First District Court of Appeal in Hayes.

Eric J Dirga

Return to Confusion: With or Without Knowledge – Updated 08/13/12.

Driver’s license from Brazil, as issued in the year 1987 (Photo credit: Wikipedia)

The Supreme Court of Florida has tried to clarify what the State need to do to prove a DWLS case when it does not have the presumption of knowledge that is found in the statute.

ANDERSON v. STATE, 37 Fla. L. Weekly S227a (Fla. Mar 15, 2012)

Anderson entered a no contest plea to the charges of burglary of a dwelling, grand theft, and falsification of ownership to a pawnbroker. The trial court adjudicated her guilty of all three counts and sentenced her to five years imprisonment. However, the court suspended her sentence on the condition that she complete two years of community control followed by probation. Before a meeting between Anderson and her probation officer, an arrest warrant had been issued for Anderson based on an alleged violation of her probation resulting from a failure to pay restitution. Due to Anderson’s failure to pay restitution, the Florida Department of Highway Safety and Motor Vehicles (DHSMV) had also suspended her driver’s license.

Upon Anderson’s arrival at the meeting, the probation officer arrested her for violation of her probation due to her failure to pay restitution. As the probation officer patted down Anderson, she discovered that Anderson had possession of automobile keys. Anderson admitted to the probation officer that the keys belonged to her and that she had driven a vehicle to the meeting. At the time Anderson drove the vehicle to the meeting, she allegedly did not have actual knowledge that her license was suspended, and she contended that she had not received a written notice of the suspension. She was charged with driving with a suspended license pursuant to section 322.34, Florida Statutes (2011). After her arrest, Anderson paid the required restitution, and the DHSMV reinstated her license. However, Anderson still faced a charge of violation of probation based upon the charge of driving with a suspended license.

During Anderson’s violation of probation hearing, defense counsel contended that the trial court should not find a violation of probation because the State had failed to satisfy the requirements of section 322.34(2), as it had not proven that Anderson had actual knowledge of her suspended license before she drove to the meeting with her probation officer. Anderson testified that the address to which the DHSMV mailed the notice of suspension was her place of residence at the time of the license suspension and the DHSMV’s mailing.

At issue is whether the Fifth District misconstrued the knowledge requirement of section 322.34(2) in light of the decisions in Brown and Haygood. In those decisions, the district courts held that, in instances where section 322.34(2)’s rebuttable presumption does not apply, the State must prove that an individual has actually received notice of a license suspension to establish knowledge of that suspension. See Haygood v. State, 17 So. 3d 894, 896 (Fla. 1st DCA 2009); Brown v. State, 764 So. 2d 741, 743-744 (Fla. 4th DCA 2000).

Under section 322.34(2), Florida Statutes (2011), any person who drives while his or her license is cancelled, suspended, or revoked, with knowledge of this fact, may be convicted of driving while a license is cancelled, suspended, or revoked, which is classified as either a misdemeanor or a felony of the third degree. The text of section 322.34(2)-(4) is as follows:

(2) Any person whose driver’s license or driving privilege has been canceled, suspended, or revoked as provided by law, except persons defined in s. 322.264, who, knowing of such cancellation, suspension, or revocation, drives any motor vehicle upon the highways of this state while such license or privilege is canceled, suspended, or revoked, upon:
(a) A first conviction is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(b) A second conviction is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(c) A third or subsequent conviction is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

The element of knowledge is satisfied if the person has been previously cited as provided in subsection (1); or the person admits to knowledge of the cancellation, suspension, or revocation; or the person received notice as provided in subsection (4). There shall be a rebuttable presumption that the knowledge requirement is satisfied if a judgment or order as provided in subsection (4) appears in the department’s records for any case except for one involving a suspension by the department for failure to pay a traffic fine or for a financial responsibility violation.

This is the key paragraph in this section.

(3) In any proceeding for a violation of this section, a court may consider evidence, other than that specified in subsection (2), that the person knowingly violated this section.
(4) Any judgment or order rendered by a court or adjudicatory body or any uniform traffic citation that cancels, suspends, or revokes a person’s driver’s license must contain a provision notifying the person that his or her driver’s license has been canceled, suspended, or revoked.

I have yet to see a citation that “cancels, suspends, or revokes” anyone’s drivers license except a DUI citation.

In section 322.251(1), Florida Statutes (2011), the Florida Legislature delineated what constitutes notice of a cancellation, suspension, or revocation:

All orders of cancellation, suspension, revocation, or disqualification issued under the provisions of this chapter, chapter 318, chapter 324, or ss. 627.732-627.734 shall be given either by [1] personal delivery thereof to the licensee whose license is being canceled, suspended, revoked, or disqualified or [2] by deposit in the United States mail in an envelope, first class, postage prepaid, addressed to the licensee at his or her last known mailing address furnished to the department. Such mailing by the department constitutes notification, and any failure by the person to receive the mailed order will not affect or stay the effective date or term of the cancellation, suspension, revocation, or disqualification of the licensee’s driving privilege.

The Fourth District examined the text of section 322.34(2) and its knowledge definition.  The district court stated that, because the case before it involved a suspension for failure to pay traffic fines, the plain text of section 322.34(2) removed the rebuttable presumption that the notice sent to the defendant’s address fulfilled the knowledge requirement of section 322.34(2).  It held that, absent the invocation of this presumption, the plain language of section 322.34(2) requires the State to prove the defendant actually received notice of the suspension.  The district court also noted that the only evidence presented by the State with regard to notice was the driving record of the defendant that reflected notice was mailed to the address of record, but that there was no evidence that Brown still resided at the same address when the notice was mailed.  The Fourth District concluded that the mailing of the notice itself, given the lack of application of the presumption of section 322.34(2), was insufficient to establish that the defendant actually received notice of his license suspension.  The court accordingly held that the State failed to establish that the defendant received notice and reversed his conviction for driving with a suspended license.

After the Brown decision, the First District decided Haygood, which also applied the current version of section 322.34. See Haygood, 17 So. 3d at 895-96. There, the defendant was convicted of driving with a suspended license.  The First District reversed the conviction because the State presented insufficient evidence to demonstrate that the defendant had knowledge of his license suspension.  As in Brown, the State introduced a copy of the driving record of the defendant into evidence, which reflected that the defendant’s driver’s license was suspended for failure to pay a traffic fine and child support.  Unlike the driving record in Brown, however, the driving record for the defendant in Haygood failed to list the address of the defendant.  Nonetheless, it did provide that, in compliance with section 322.251, notice of the suspension had been provided to the defendant.

In rendering its decision, the First District agreed with and adopted the reasoning in Brown.  The district court held that the reasoning in Brown was in accord with the plain text of section 322.34.  The district court stated that according to the driving record of the defendant, the license suspension was due to failure to fulfill a financial responsibility.  It held that this negated the application of the rebuttable presumption in section 322.34(2) with regard to knowledge created by an entry in the DHSMV record, and thus required that the State present evidence that the defendant actually received notice of his license suspension.  The district court concluded that the State failed to satisfy this requirement because the mere fact that the driving record of the defendant listed his license suspension did not establish that the defendant actually received notice of that suspension. See id. It reversed the defendant’s conviction for driving while his license was suspended.

In the decision below, the Fifth District correctly held that the State sufficiently established the knowledge requirement of the current version of section 322.34(2) because (1) the mailing of the written notice of suspension satisfied the notice requirement of section 322.251(1), and (2) the State proved that this was the address of Anderson at the time of the mailing. This result is in accord with the plain language of sections 322.34 and 322.251(1), as construed together and taken as a whole.

Does this add another element requirement, in cases without the presumption, for the state? Proof that the address used by the DMV was the residence of the defendant at the time of mailing? Does an annotation that the defendant received a “duplicate” or “replacement” license (for an address change maybe) defeat that presumption? In this case the supreme court requires some evidence that the address was the correct address of the defendant.

As provided by the Legislature, the knowledge requirement of section 322.34(2) is fulfilled when an individual “received notice” of that suspension as contemplated in section 322.34(4).  Subsection (4) of 322.34 mandates that any judgment or order rendered by a court or adjudicatory body or uniform traffic citation that results in the cancellation, suspension, or revocation of a license must contain a provision notifying the person of that action.

Section 322.251(1), which concerns the same subject matter as section 322.34 — i.e., driving while a license is cancelled, suspended, or revoked — explicitly outlines two mechanisms for delivery of a written notice of a license suspension, revocation, or cancellation under section 322.34.  The first mechanism is to provide the notice “by personal delivery.”  The second mechanism is to “deposit [the notice] in the United States mail in an envelope, first class, postage prepaid, addressed to the licensee at his or her last known mailing address furnished to the [DHSMV].”

Here, the State sufficiently proved knowledge by verifying that the DHSMV sent notice of Anderson’s license suspension by mail and that Anderson received it. More specifically, it established that it sent notice of the license suspension in accordance with section 322.251(1), i.e., it entered into evidence the driving record of Anderson, which illustrated that the DHSMV mailed written notice of Anderson’s license suspension to her last known address.

If it were so simple. I would argue every date on the driving record, have the prosecutor point it out, have the custodian, if subpoenaed, explain how he/she knows, etc. Argue every bit of 90.901 and 803(6), etc. It seems, with this case, that the DMV record may not be self-authenticating.

The State then established that Anderson received that notice, as evidenced by the testimony of Anderson that she resided at the address to which the DHSMV sent the notice at the time of the mailing. Section 322.34(3) permits the consideration of this type of testimony as evidence of receipt of notification and knowledge of a license suspension. See § 322.34(3) (permitting a court to consider evidence of knowledge, “other than that specified in subsection (2),” when it determines whether an individual knew of a license suspension).

This seems to be the crux of this case. Establish that notice was sent by entering Department record AND establish that it was sent to the correct address (not just the last updated address).

Anderson contends that, in cases such as hers — i.e., when an individual’s license is suspended due to failure to fulfill a financial responsibility — the rebuttable presumption in section 322.34(2) does not apply. She asserts that the State, therefore, must prove that she actually received the notice and had actual knowledge of her suspension.

The Legislature, however, did not contemplate such an exacting burden of proving actual knowledge for the State, even in instances when the rebuttable presumption of knowledge in section 322.34(2) does not apply. Rather, the plain language of section 322.34(2) permits the State, in instances of a suspension for a reason other than the failure to fulfill a traffic fine or some other financial responsibility, to invoke a rebuttable presumption of knowledge. To do so, the State must only establish that a judgment or order of suspension as provided in section 322.34(4) has been entered on an individual’s driving record. When, as in this case, the suspension is for failure to fulfill a traffic fine or financial responsibility, the plain language of section 322.34(2) negates the applicability of that presumption. The language of that section, however, does not alter the requirement that the State, even without the invocation of the rebuttable presumption, must prove only that the individual received notice. Here, the State fulfilled this burden by establishing that the DHSMV mailed Anderson written notice of her suspension to the address where she resided at the time of the mailing.

Usually, the basic information of name, address, etc. does not trigger the Miranda requirements of notice of rights. Any use of such information in a case like this seems like it would be incriminating. Because such information is required at a traffic stop maybe it can be argued that, like the accident report privilege, it cannot be used at trial.

Accordingly, we hold that the Fifth District properly affirmed Anderson’s license suspension and the revocation of her probation. We, therefore, affirm the decision below. We disapprove Brown and Haygood to the extent that those decisions conflict with the opinion of this Court.

Eric J Dirga