Florida Death Row Advocacy Group

Summary of Florida’s Capital Post Conviction Review Process, Michael Lambrix
(Step 1, the actual trial, appeared in the October issue, Step 2, the direct appeal, in the November issue, and Step 3, the writ of certiorari and Step 4a, the state post-conviction appeal in the January newsletter)
Step 4b. The Evidentiary Hearing
Applicable law all but requires a full evidentiary hearing on an original capital post conviction appeal. Often these capital evidentiary hearings will last several days and resemble an actual trial, although all matters presented are heard and considered exclusively by the trial court judge. Only after such an evidentiary hearing is provided on the claims involving factual disputes that cannot be resolved exclusively trough the record and applicable law, will the trial court judge finally issue a ruling on all post conviction claims presented. If the ruling is based upon a perceived mistaken application of law as applied to relevant facts, then a Motion for Rehearing pointing out this error must be filed with 15 days once the order become final. The post conviction lawyer must file a Notice of Appeal within 30 days with the trial court providing specific notice of intent to appeal the denial of relied. The failure to file the required Notice of Appeal within those 30 days can result in a legal abandonment of any further rights to appellate review of the claims raised and prove fatal for the post conviction defendant as once the claims are procedurally barred they can never again be raised not even if alleging actual innocence.
Step 5, Post-Conviction Appeal
Once a timely Notice of Appeal is filed with the original trial court after denial of the claims of post-conviction appeal, the case is again transferred directly to the Florida Supreme Court for appellate review. As with the earlier “direct appeal”, the capital defendant’s lawyer will be required to submit a written argument (brief) addressing any specific claim raised and why it is that the trail court erred in denying relief. Each claim must be raised sufficiently to identify the specific legal issue involved and is limited to arguments and evidence previously presented to the original trial court in the original post conviction appeal field before the court. Additional, the brief is limited to a maximum of 100 pages. In addition, pursuant to rules governing Florida’s Supreme Court’s procedure, a capital defendant must also incorporate into this appeal any claims of “ineffective assistance of direct appeal counsel.

”Specifically, if the capital defendant’s post conviction counsel believes that there ewer specific claims that should have been previously raised on direct appeal, but were not because of the failure of direct appeal counsel to do so, then those un-presented claims must be fully presented and argued simultaneously with the claims of collateral post conviction relief. The failure to do so will result in a technical abandonment of any such claims and they can not be raised later. (To be continued.)
Legal Analysis, Karin Elsea
A landmark U.S. Supreme Court, Crawford v Washington, 541 U.S. 36 (2003), ruling that restrains prosecutors from relying on unchallenged statements from unavailable witnesses is not retroactive, the 2nd U.S. Circuit Court of Appeals has ruled in Mungo v. Duncan, 2004 U.S. App. LEXIS 26972. The Court's ruling in Crawford imposed limits on hearsay exceptions that allowed prosecutors to introduce testimonial statements from witnesses who had not been cross-examined. The ruling upended the 24-year-old precedent of Ohio v. Roberts, 448 U.S. 56 (1980), which supported hearsay exceptions for unchallenged statements by dying witnesses, co-conspirators and others as long as judges considered the statements reliable. Under Crawford, a testimonial statement cannot be admitted unless the witness takes the stand or is cross-examined before trial.
Florida Supreme Court Capital Decision Review, Karin Elsea
Gregory Alan Kokal v. State of Florida, 2005 Fla. LEXIS 6
Relief denied on all five claims: (1) trial court’s denial of motion to disqualify the trial judge, (2) trial court erred in denying claim of newly discovered evidence of actual innocence, (3) ineffective assistance of post-conviction counsel, (4) state violated his due process by failing to preserve evidence potentially subject to DNA testing, and (5) FL’s death penalty sentencing scheme is unconstitutional under Ring v Arizona, 536 U.S. 584 (2002).
Jermaine Lebron v. State of Florida, Fla. L. Weekly S 17 (2005)
Relief granted: death sentence vacated, remanded to circuit court for new penalty phase. Court ruled that prejudice occurred when prosecution introduced evidence of a firearm to establish the prior violent felony aggravator. James Winkles v. Florida, 2005 Fla. LEXIS 8
Relief denied on all claims that FL’s death penalty sentencing scheme is unconstitutional under Ring v Arizona, 536 U.S. 584 (200