Because 77 of those offenders are serving sentences imposed in Florida and the other 52 are imprisoned in just 10 States and in the federal system, it appears that only 12 jurisdictions nationwide in fact impose life without parole sentences on juvenile nonhomicide offenders, while 26 States and the District of Columbia do not impose them despite apparent statutory authorization.
To me, the statement above was perhaps the most compelling part of today’s Supreme Court opinion in Graham v. Florida, in which the Court held that the Eighth Amendment bars life imprisonment for juvenile defendants whose crimes do not involve death. The fact that such a high percentage of juveniles sentenced to life are in Florida doesn’t necessarily surprise me, but it does sadden me.
The significance of the case is clear: no longer will juveniles be subject to sentences of life without parole. What our communities are going to do to integrate these individuals back into society is another question—one that Florida is going to have to address quite soon, apparently.
An article in today’s St. Pete Times tells the story of just one aspect of how changes in sentencing law and structure can have unforeseen consequences. The story is that of Ian Manuel, who shot a woman in the face in the course of a robbery attempt. The victim survived. According to the article, Manuel accepted a 15 year plea deal but was sentenced to life, without the possibility of parole, as parole has not applied to Florida crimes since the mid-1980′s. His trial counsel is quoted as saying, “We were shocked, but there was nothing we could do because it was within the sentencing range.” He is still serving that sentence and expected that he would do so until his death. Pending Florida cases, Sullivan v. State and Graham v. Florida, follow the logic applied in Roper v. Simmons, which held that the death penalty is cruel and unusual punishment as applied to defendants under age 18, and argue that it is also cruel and unusual to sentence children to life in prison when no victim was killed during the course of their crimes. We shall have to see what happens with those cases as time goes on.
The article goes into great detail about the life Manual has served and the deprivation he has suffered in prison and also discussed the risks he faces if he is released. It is a terribly compelling story.
In the “good lesson” category is Linton v. State, 17 Fla. L. Weekly Supp. 336a (17th Jud. Cir., January 20, 2010), a circuit court appeal out of Broward County. Linton was arrested for solicitation for prostitution in a sting operation and was represented at trial by his obviously very understanding wife. Wife/ trial counsel attempted to introduce testimony of Linton’s good character and reputation (as one who was not predisposed to solicit a prostitute) through his father-in-law and sister-in-law, a request which was denied by the trial court. One can only assume that being understanding runs in wife/counsel’s family.
Although the defense argued to the jury that Linton was entraped, wife/counsel failed to object to jury instructions that did not include the entrapment instruction. The circuit appellate panel determined that the trial court did not abuse its discretion with regard to defendant’s reputation and also found that the trial court’s error in not instructing the jury on entrapment was not preserved. The court held that even if counsel had objected it would still find no error, finding that Linton was not, in fact, entraped.
No word yet on Linton’s Rule 3.850 motion against his wife.
The Supreme Court recently came down with an opinion that might really change the way immigration cases with postconviction issues are handled. Of course, it also might not. Only time will tell how Florida courts will handle the Padilla opinion. But it is possible that a window of opportunity could be opening up for individuals looking to get rid of a conviction of a crime of moral turpitude that could impact on their legal status in the US.
The case is Padilla v. Kentucky, 559 U.S. _____ (2010) and it involves Jose Padilla (no, not THAT Jose Padilla), a 40 year permanent resident of the US facing deportation as a result of pleading guilty to (and being convicted of) drug distribution charges in Kentucky. His lawyer told advised him not to worry about about being deported because he had lived in the US for so long– which turned out to be, you guessed it, really bad advice. The Kentucky Supreme Court denied relief on the basis that immigration advice in this context was collateral and therefore not included in the Sixth Amendment’s right to effective counsel. (This, by the way, is pretty similar to, if not exactly the same, as the state of the law in Florida. More on that in another post.)
Kind of shockingly, in my opinion, the US Supreme Court held that Padilla’s trial counsel was ineffective for failing to properly advise him of the potential deportation consequence to his plea. They did not address whether Padilla suffered prejudice and so the case was remanded to Kentucky for further litigation.
It’s a little hard to say how Florida courts are going to deal with the Padilla decision. Fl. R. Crim. P. 3.172(c)(8) requires trial judges to place defendants under oath and determine that they understand that a plea may subject them to deportation. This requirement applies to all defendants and no inquiry into a particular defendant’s status is necessary under the rule.
Florida has been on the forefront in dealing with immigration issues in criminal cases for quite some time and our law on this issue has evolved over a number of years. Generally, the failure of a trial court to advise a defendant of the possibility of deportation can subject such a plea to withdrawal pursuant to Fl. R. Crim. P. 3.850. Peart v. State, 756 So. 2d 42 (Fla. 2000) first laid out the applicability of Rule 3.850 to these cases and also set forth the rule that the time limit for filing a motion to withdraw plea began to run at the time of discovery of the threat of deportation as opposed to the time of the plea. Under Peart, defendants were required to allege that they would not have entered pleas in their cases had they understood the risk of deportation.
In 2006, major changes took place in Florida, with the Supreme Court’s decision in State v. Green, 944 So. 2d 208 (Fla. 2006). Green lessened the pleading requirements but significantly altered the landscape with regard to what constitutes a timely motion. Green says that the two year time limitation begins to run when the judgment and sentence becomes final unless the defendant could not with due diligence have ascertained that she was subject to deportation. A 2008 Second DCA case, Ventura v. State, 977 So. 2d 794 (Fla. 2d DCA 2008), held that the two years can be said to start from the date of Green. At least prior to Padilla, the state of Florida law appeared to be that individuals not adequately advised of the potential immigration consequences to their pleas in criminal cases had only two years from the date their judgments and sentences became final to seek relief. A very recent Florida Supreme Court case, Canseco v. State, 35 Fla. L. Weekly S217a (April 22, 2010), indicated that Green did not revive claims, either, and that defendants could not get relief under Green and its two year window if s/he received actual notice of a deportation proceeding more than two years before the motion to withdraw plea.
A “knock and talk” is a tactic used when information about a suspect is not sufficient to support the issuance of a search warrant. Instead of simply ignoring a complaint, a law enforcement officer goes to the location of the alleged criminal activity, such as a residence/house, and attempts to obtain consensual entry and permission to search.
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