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Florida’s Amendment 6 Was Probably Not the Best Idea.

November 9, 2018

 

On Tuesday, Florida voters passed Amendment 6 which is otherwise known as Marsy’s Law for Florida.[i] The amendment was based largely on a law that passed a few years back in California and has gathered some steam nationally for victim’s rights.

 

The confusingly worded amendment adds a rather lengthy provision to Article I, Section 16 of the Florida Constitution.[ii] Article I, Section 16 deals almost exclusively with the constitutional criminal rights of the accused. Florida’s Article I, Section 16 closely mimics the Sixth Amendment to the United States Constitution which is made applicable in Florida via the Fourteenth Amendment’s “due process” clause.[iii] The Sixth Amendment is where a good portion of a criminal defendant’s rights are protected.

 

The proponents of the amendment herald that this law as a win for victim’s rights, but the opponents of the law quickly point out that most of the verbiage contained within the body of the amendment is already the law in Florida. Over the past twenty years, Florida has been rather progressive regarding victim’s rights anyways.

 

Leading up to the election, there were a series of extremely misleading television advertisements attempting to explain the amendment and drum up support.[iv] The advertisements oversimplified the value of the amendment. Prior to the election, opponents of the law unsuccessfully challenged the amendment based upon it’s misleading wording. In all honesty the gambit worked for the advocates because how many voters out there are going to vote against “Equal Rights for Crime Victims”? In our political reality, the question scarcely escapes its own statement.

 

Here are some of the immediate observations that I see with this amendment.

 

First, the State of Florida does not represent victims in our criminal justice system.[v] The caption of the case is State of Florida vs. John Doe and not victim of crime vs John Doe. As such, the alleged victim of the crime already has certain rights and is consulted by prosecutor’s office regarding potential sentencing, restitution, and other matters. This amendment does not change the structure of the prosecution.

 

Second, alleged victims, if they choose, can be heard at bail hearings and sentencing hearings. Florida does not have parole and has not for some time.

 

Third, an alleged victim’s personal information and address can be kept confidential from public and the defense already.

 

Fourth, the amendment reads:

 

c. The right to confer with the prosecuting attorney concerning any plea agreements, participation in pretrial diversion programs, release, restitution, sentencing, or any other disposition of the case.

 

This already is the law. It is also the policy of all of the state attorney’s offices across Florida.

 

Fifth, paragraph (10) of the amendment provides the most troubling aspects of the amendment. Part (a) allows for the state to petition for a speedy trial. Part (b) places time limits on appeals and collateral attacks on a conviction. On their face, these items seem straightforward and logical, but these would be impossible to enforce in court for various legal reasons.[vi]

 

Putting aside the “due process” concerns like discovery violations, Brady[vii] or Giglio[viii] violations, prosecutorial misconduct…etc., how would the trial court enforce the victim’s right to speedy trial. In other words, what is the remedy of this provision is violated?

 

Florida Rule of Criminal Procedure 3.191 outlines and explains the rule based speedy trial right in Florida. By “rule based” I mean this, Rule 3.191 is different from a constitutional speedy trial violation under the Sixth and Fourteenth Amendments.[ix] Regarding Rule 3.191 speedy trial, there are a few different machinations regarding the rule’s impact which are not important for this discussion, but nonetheless a violation of the speedy trial right under Rule 3.191 can, and often does, result in an outright dismissal of the charges. The question becomes: how would the State’s right to a speedy trial work in this regard? Would a violation of the victim’s speedy trial right would result in an automatic conviction? Again, the question scarcely escapes its own statement. This part of the amendment would have to give way to the defendant’s rights already contained with the Florida Constitution and to federalism. The purpose of a criminal trial is just as much about the acquittal of an innocent person as it may be to convict a guilty one.[x]

 

Even more troubling is the idea that this amendment could limit the defendant’s direct right of appeal and collateral attacks to be completed in two years.

 

The amendment reads:

 

b. All state-level appeals and collateral attacks on any judgment must be complete within two years from the date of appeal in non-capital cases and within five years from the date of appeal in capital cases, unless a court enters an order with specific findings as to why the court was unable to comply with this subparagraph and the circumstances causing the delay. Each year, the chief judge of any district court of appeal or the chief justice of the supreme court shall report on a case-by-case basis to the speaker of the house of representatives and the president of the senate all cases where the court entered an order regarding inability to comply with this subparagraph. The legislature may enact legislation to implement this subparagraph.

 

The two-year time frame is both misleading and unreasonable. It is misleading because the amendment cannot limit the federal court and the right to habeas corpus review. Second, it is unreasonable because the two-year time frame is plucked from thin air and ends up being arbitrary and capricious. Let me explain.

 

In Florida, a person convicted of an offense has an absolute right to direct appeal. See §924.09; Florida Rule of Appellate Procedure 9.140. The appeal goes from the lower court to the higher court. In some cases, the next higher court can exercise discretion to hear the matter to clarify the law or a specific issue affecting a series of cases. Often, a matter can go up and down over several years as the matter is litigated by both the State and the defense. Paragraph 10(b) would attempt to improperly short-circuit the appellate structure. The provision cannot possibly address the plethora of scenarios that could occur from different types of discretionary reviews to backlogs to retroactive constitutional rulings that apply to cases already in the “pipeline.” It attempts to put a one-size-fits-all cap on the matter and, frankly, it doesn’t fit.

 

For instance, a person is charged with driving under the influence (DUI) with property damage in county court. County court in Florida is the lowest level court in Florida that handles primarily misdemeanor offenses. The DUI has property damage component so there is an actual victim which would trigger the protections of this amendment.

 

After trial, the defendant appeals because the trial court denied the defendant’s motion to suppress an illegal stop under the Fourth Amendment and Article I, Section 12 of the Florida Constitution. The direct appeal heads to the circuit court.

 

In any appeal, there are already strict time frames for the parties to operate. The defendant must appeal within 30 days from the final judgment. Once the appeal is filed, the clerk has a certain amount of the time to produce the record. After the record (which contained all the relevant court documents and the transcripts from the relevant hearings and trial) is transmitted to the parties, the parties have set amounts of time to draft and file their briefs. After the briefs are submitted, the appellate court may hear oral argument and request supplemental briefing to address the issues. This all takes time.

 

There are several possible outcomes that the appellate court could render, but for this example let us assume that the appellate court reverses the conviction on the grounds that the trial court made an error of law in deciding the motion to suppress and the motion to suppress should have been granted. In this scenario, the State can choose to seek discretionary review at the district court. If the district court accepts jurisdiction, grants discretionary review, and hears the case, then the parties will have to re-brief the issues as outlined by the district court. This all takes time.

 

Let us say for the sake of the argument that the district court reverses the circuit court (appellate court) in the above scenario on a procedural ground. The defendant/appellant appeals to the Florida Supreme Court on the grounds that the new ruling of the district court conflicts with long standing precedent from the Supreme Court. For this example, the Florida Supreme Court accepts jurisdiction and starts the process all over again.

 

If the two-year time limit occurs while the appeal is happening, does it operate like sudden-death in a sporting event? Is the matter closed automatically? On its face, this appears to run afoul of the principles of “due process” and federalism.

 

It might not be constitutionally over at that point. Because the above scenario deals with the Fourth Amendment, the defendant may be able to appeal the Florida Supreme Court’s ruling to the United States Supreme Court. If the United States’ Supreme Court grants certiorari, then the process begins anew again.

 

Florida law cannot interfere with United State’s Constitution and has no authority to stop the appeal. Also, a common outcome in many United States Supreme Court cases is that the Court sends the matter back to a lower court to clarify a point of state law or a part of a ruling. This can go on for some time. Again, Florida law cannot interfere with the process.

 

For instance, Ernesto Miranda was arrested on 13 March 1963. He case worked its way through a trial and two appeals before it found its way to the United States Supreme Court which decided his case on 13 June 1966 or more than three years later. See Miranda v. Arizona, 384 U.S. 436 (1966).

 

Additionally, the United States Supreme Court has said that everyone charged with an offense is entitled under the Sixth Amendment to “effective assistance of counsel.” Further, under Florida law, collateral attacks on a conviction are not typically raised in the direct appeal but are raised in a post-conviction motion pursuant to Florida Rule of Criminal Procedure 3.850.[xi] Rule 3.850 allows for the defendant to typically raise the collateral attack within two years of conviction (with very limited circumstances). The two-year time frame does not begin to run until the final, final direct appeal is competed and the mandate (court ruling) is issued.

 

Remember, an accused is absolutely entitled to “effective assistance of counsel” and has two years from whenever the conviction is final? Using the Miranda case for a time frame, the collateral attack on the conviction could theoretically begin four or five years after conviction. Under Marsy’s law, the collateral attack would be precluded and would not be permitted; under the United State Constitution, the collateral attack would be permitted.

 

There are have been successful challenges around the country to other Marsy’s laws.[xii] The ACLU calls Marsy’s Law a constitutional experiment because it is one. Keep in mind that advocates for the law spent nearly $37 million dollars in Florida to get it passed in November, but this state may be litigating this matter for years to come as we try to figure out how to integrate it into our criminal justice system.[xiii]

 

Lastly, the amendment adjusted the mandatory retirement age for judges from 70 to 75. Like anything in life, there are some great judges who should be allowed to continue on the bench until they are 75 and then there are simply some old judges.

 

Overall, it appears that the advocates’ hearts are in the right place, but our criminal justice system was set up to protect the accused. The Founders feared wrongful incarcerations and summary criminal procedures. Fearing criminal expediency, the Founders made sure and enshrined in our Constitutional certain rights that are not to messed with or adjusted. Period. When it comes to our free society and how we already treat criminal defendant and persons in the system, messing with “due process” and constitutional criminal rights is never, ever a good idea. Think DNA exonerations of wrongfully convicted persons who are innocent.

 

Anthony Candela is a Board-Certified attorney. He opened the Candela Law Firm, P.A. in 2014 and handles primarily criminal trials and appeals. He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. He was board certified by the Florida Bar in Criminal Trial in August 2008, recertified August 2013 and is pending recertification in 2018. He is also admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #agoodtampadefenselawyer

 

Contact Anthony Candela at (813) 417-3645 or visit on the web www.candelalawfirm.com for a review of your case.

 

The purpose of this blog is purely education/information and should not viewed as creating any attorney-client privilege between the reader and author.

 

If you have any questions, comments, or concerns, then please feel free to leave me a comment below and thank you reading this blog article.

 

 

[i] https://dos.myflorida.com/media/699824/constitutional-amendments-2018-general-election-english.pdf

 

[ii] https://www.miamiherald.com/news/politics-government/state-politics/article220678905.html

 

[iii] See Gideon v. Wainwright, 372 U.S. 335 (1963); Pointer v. Texas, 380 U.S. 400 (1965)

 

[iv] https://www.youtube.com/watch?v=pcaHX2fVonA and https://www.youtube.com/watch?v=rxqlWfm_hVk

 

[v] See McArthur v. State, 597 So.2d 406 (Fla. 1st DCA 1992); State v. Greaux, 977 So.2d 614 (Fla. 4th DCA 2008)

 

[vi] http://news.wjct.org/post/amendment-6-marsy-s-law-passes-victims-rights-be-added-florida-s-constitution

 

[vii] Brady v. Maryland, 373 U.S. 83 (1963).

 

[viii] Giglio v. State, 405 U.S. 150 (1972).

 

[ix] See Barker v. Wingo, 407 U.S. 514 (1972).

 

[x]  See U.S. v. Bagley, 473 U.S. 667 (1985) (Justice Marshall dissent).

 

[xi]  Fla. R. Crim. P. 3.850, 3.851, and 3.853 (DNA testing)

 

[xii] https://www.aclu.org/news/montana-supreme-court-strikes-down-marsys-law-unconstitutional-aclu-lawsuit-voids-ci-116 and https://www.aclu.org/blog/criminal-law-reform/victims-rights-proposals-marsys-law-undermine-due-process

 

[xiii] https://www.tampabay.com/florida-politics/buzz/2018/09/26/big-money-is-flowing-to-these-five-ballot-measures-what-are-they/

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