In SHENFELD v. STATE, No. SC09-1395 (Fla. Sep. 2, 2010), the Court examined the constitutional provision prohibiting ex post facto laws.
The Defendant was placed on probation in 2002. In 2007, before his probation expired, the Defendant an affidavit of violation of probation was filed, alleging that the Defendant had committed several violations by committing new crimes. After the Defendant's probation would have expired absent tolling, an amended affidavit was filed, upon which the Defendant's probation was revoked.
When the Defendant was placed on probation, § 948.06(1) Florida Statutes (2001) required both the filing of an affidavit of violation and the issuance of an arrest warrant to toll a probationary period.
The mere filing of the affidavit was insufficient. In 2007, the Legislature amended § 948.06(1) to allow for tolling of the probationary period upon the filing of an affidavit. The amended statute was in effect when the Defendant violated his probation. Relying on the 2001 version of § 948.06(1), the Defendant moved to dismiss the affidavits of violation of probation; he argued that because he was arrested without a warrant and no arrest warrant for the violations was issued during his probationary period, his probation was never tolled and the trial court lacked jurisdiction to revoke his probation once the probationary period expired. The Defendant asserted that application of the 2007 version of section 948.06(1) to him was an ex post facto violation.
The Court held that four categories of ex post facto laws were set out by Justice Chase in Calder v. Bull, 3 U.S. (3 Dall.) 386, 390-91 (1798):
"1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action.
2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.
4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender." Citing Carmell v. Texas, 529 U.S. 513, 539 (2000), the Court held that all ex post facto claims must be evaluated in the light of these four categories. In determining whether an ex post facto violation has occurred, it is a mistake to stray beyond the four categories in Calder.
Slip opinion at 7.
Here the Court opined: "It is evident that the four Calder categories do not encompass every law effective after the commission of an offense and applied in the proceedings regarding the offense. The prohibition of ex post facto laws thus 'does not give a criminal a right to be tried, in all respects, by the law in force when the crime charged was committed.'" Slip opinion at 7. The Court held that the 2007 revision to § 948.06(1) is a matter of procedure that does not fall within any of the Calder categories. The statutory provision expanding the circumstances under which a probationary term could be tolled neither made criminal a theretofore innocent act (first category), nor aggravated a crime previously committed (second category), nor provided greater punishment (third category), nor changed the proof necessary to convict (fourth category). Instead, the statutory change simply altered the "modes of procedure" governing the adjudication of probation violations by permitting the tolling of a probationary term without the issuance of an arrest warrant. "The statutory change challenged by [the Defendant] is akin to a statutory extension of a statute of limitations which becomes effective before the statute has run. Such a statutory change - unlike a statute reviving a previously time-barred prosecution - does not fall within the scope of any of the four Calder categories."
Slip opinion at 9. "If the time for bringing criminal charges may constitutionally be extended before the prosecution has been time-barred, it follows that a provision for tolling may be applied to a probationary term that has not yet expired." Slip opinion at 10.
In a revised opinion in JOHNSON v. STATE, No. SC08-1213 (Fla. Sep. 2, 2010), the Court reversed a death sentence. After the Defendant was arrested and counsel was appointed, the State intentionally created a situation likely to induce the Defendant to make incriminating statements to a jailhouse informant in violation of the Defendant's Sixth Amendment right to counsel. The Court held that because the Defendant's statements were impermissibly elicited, the informant's testimony concerning those statements was inadmissible under United States v. Henry, 447 U.S. 264 (1980). Although the prosecutor at the Defendant's first trial knew that the Defendant's statements were impermissibly elicited and that the informant's testimony was inadmissible, he knowingly used false testimony and misleading argument to convince the court to admit the testimony. That conviction was overturned based on unrelated error.
The Defendant was retried in 1988. At the retrial, the informant's testimony was admitted and used - innocently but impermissibly - by a different prosecutor. The Defendant was convicted and sentenced to death. Because the State failed to show that admission and use of the informant's statements did not contribute to the jury's advisory sentences of death, the Court vacated the death sentences under Giglio v. United States, 405 U.S. 150 (1972), and remanded the case for a new penalty phase proceeding before a new jury. The Court held that the "result is dictated by the misconduct of the original prosecutor in this case, Hardy Pickard. His misconduct tainted the State's case at every stage of the proceedings and irremediably compromised the integrity of the entire 1988 penalty phase proceeding. This is not a case of overzealous advocacy, but rather a case of deliberately misleading both the trial court and this Court."
In SEMINOLE TRIBE OF FLORIDA v. ARIZ, No. 2D10-1335 (Fla. 2d DCA Sep.
1, 2010), the DCA held that the trial court lacked subject matter jurisdiction in a tort case where the Defendant was an Indian tribe.
The tribe had not waived its immunity as an independent sovereign government which is not subject to the civil jurisdiction of the Florida courts.
