CA11: Erroneous Jury Instruction in Section 1983 Case

Deputy Sheriff Adam Lin of the Palm Beach County Sheriff’s Office shot Dontrell Stephens four times. Mr. Stephens now suffers permanent paralysis.

While affirming an order granting summary judgment in favor of Sheriff Ric Bradshaw, the Eleventh Circuit reversed the jury award of $23,148,100 in damages to Mr. Stephens against Deputy Lin on the basis that an erroneous jury instruction deprived Deputy Lin of the opportunity to claim self defense.

Stephens v. Bradshaw, et al, 16-19876 (11th Cir. Jan. 10, 2018)

http://media.ca11.uscourts.gov/opinions/pub/files/201610876.pdf

From the Southern District of Florida

Valarie Linnen, Esq. Criminal, Civil, and Administrative Appeals
Postconviction Relief
PO Box 330339, Atlantic Beach, FL 32233
PO Box 200, Chippewa Lake, MI 49320
888.608.8814
vlinnen@live.com
www.AppealtheJudgeNOW.com

SCOTUS: Prejudice from a Prejudiced Juror

I’M BACK!!! I just needed some time to rejuveniate…

The Eleventh Circuit reversibly erred by holding that a defendant sentenced to death was not prejudiced by a prejudice juror:

"Tharpe produced a sworn affidavit, signed by Gattie, indicating Gattie’s view that “there are two types of black people: 1. Black folks and 2. Niggers”; that Tharpe, “who wasn’t in the ‘good’ black folks category in my book, should get the electric chair for what he did”; that “[s]ome of the jurors voted for death because they felt Tharpe should be an example to other blacks who kill blacks, but that wasn’t my reason”; and that, “[a]fter studying the Bible, I have wondered if black people even have souls.” App. B to Pet. for Cert. 15–16 (internal quotation marks omitted). Gattie’s remarkable affidavit—which he never retracted— presents a strong factual basis for the argument that Tharpe’s race affected Gattie’s vote for a death verdict. At the very least, jurists of reason could debate whether Tharpe has shown by clear and convincing evidence that the state court’s factual determination was wrong. The Eleventh Circuit erred when it concluded otherwise. "

Tharpe v. Sellers, 17-6075 (Jan. 8, 2018)

https://www.supremecourt.gov/opinions/17pdf/17-6075_p8k0.pdf

Valarie Linnen, Esq. Criminal, Civil, and Administrative Appeals
Postconviction Relief
PO Box 330339, Atlantic Beach, FL 32233
PO Box 200, Chippewa Lake, MI 49320
888.608.8814
vlinnen@live.com

1DCA: Peremptory Challenge bc Juror Gave Prosecutor a “Dirty Look”

Reversing conviction for possession of XLR11 (commonly referred to as K2, Spice, or Synthetic Marijuana) and methamphetamine,the trial court erred in allowing a peremptory challenge to strike an African-American juror where the State’s race-neutral reason—that the juror gave the prosecutor a dirty look—was neither observed by the trial court nor supported by the record.

Ivey v. State, 1D15-5803 (Fla. 1st DCA Sept. 13, 2017)

https://edca.1dca.org/DCADocs/2015/5803/155803_DC08_09132017_100546_i.pdf

Jackson Co.

Valarie Linnen, Esq. Criminal, Civil, and Administrative Appeals
Postconviction Relief
PO Box 330339, Atlantic Beach, FL 32233
PO Box 200, Chippewa Lake, MI 49320
888.608.8814
vlinnen@live.com
www.FlaCaseLaw.com

4DCA: LEOs Can Assert Stand Your Ground – Certifies Conflict

Finding the law enforcement officers are eligible to assert the Stand Your Ground defense under F.S. 776.012 and 776.032, the Fourth District agreed with the trial court that "the officer reasonably believed using deadly force was necessary to prevent imminent death or great bodily harm to himself, his sergeant, and the nearby citizens."

Certified Conflict with State v. Caamano, 105 So. 3d 18 (Fla. 2d DCA 2012).

Certified question of great public importance:

WHETHER A LAW ENFORCEMENT OFFICER, WHO WHILE MAKING A LAWFUL ARREST, USES DEADLY FORCE WHICH HE OR SHE REASONABLY BELIEVES IS NECESSARY TO PREVENT IMMINENT DEATH OR GREAT BODILY HARM TO HIMSELF OR HERSELF OR ANOTHER OR TO PREVENT THE IMMINENT COMMISSION OF A FORCIBLE FELONY, IS LIMITED TO INVOKING A DEFENSE UNDER SECTION 776.05(1), OR IS ALSO PERMITTED TO SEEK IMMUNITY FROM CRIMINAL PROSECUTION UNDER SECTIONS 776.012(1) AND 776.032(1), FLORIDA STATUTES (2013), MORE COMMONLY KNOWN AS FLORIDA’S “STAND YOUR GROUND” LAW.

State v. Peraza, 4D16-2675 (Fla. 4th DCA Aug. 30, 2017)

https://edca.4dca.org/DCADocs/2016/2675/162675_DC05_08302017_095639_i.pdf

Broward Co. Judge Usan

Valarie Linnen, Esq. Criminal, Civil, and Administrative Appeals
Postconviction Relief
PO Box 330339, Atlantic Beach, FL 32233
PO Box 200, Chippewa Lake, MI 49320
888.608.8814
vlinnen@live.com
www.FlaCaseLaw.com

2DCA: Reverses Child Neglect

Reversing judgment and sentence for neglect of a child causing great bodily harm in violation of section 827.03, Florida Statutes (2012), the defendant’s conduct in allowing a four-year-old child to descend a flight of stairs unassisted—stairs that the child had regularly traversed previously without significant incident—did not rise to the level of culpable negligence or a willful failure to care for the child’s well-being.

Medina v. State, 2D15-654 (Fla. 2d DCA Aug. 30, 2017)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/August/August%2030,%202017/2D15-654.pdf

Polk Judge Catherine Combee

Valarie Linnen, Esq. Criminal, Civil, and Administrative Appeals
Postconviction Relief
PO Box 330339, Atlantic Beach, FL 32233
PO Box 200, Chippewa Lake, MI 49320
888.608.8814
vlinnen@live.com
www.FlaCaseLaw.com

CA11 EN BANC: Florida Felony Battery is a Crime of Violence

Vacating a prior panel opinion, the Eleventh Circuit en banc held that a conviction for felony battery under Fla. Stat. 784.041 categorically qualifies as a crime of violence under USSG § 2L1.2 because it has as an element the use, attempted use, or threatened use of physical force.

Judges Wilson, Martin, Jordan, Rosenbaum, and Jill Pryor dissented.

USA v. Vail-Bailon, 15-10351 (11th Cir. Aug. 25, 2017)

http://media.ca11.uscourts.gov/opinions/pub/files/201510351.reh.pdf

Valarie Linnen, Esq. Criminal, Civil, and Administrative Appeals
Postconviction Relief
PO Box 330339, Atlantic Beach, FL 32233
PO Box 200, Chippewa Lake, MI 49320
888.608.8814
vlinnen@live.com
www.FlaCaseLaw.com

CA11: Improper Sentencing Enhancement for Number of Victims

Reversing a 366-day sentence of imprisonment for theft of mail (18 U.S.C. § 1708), the district court erred in applying a the number-of-victims sentencing enhancement under U.S.S.G. § 2B1.1(b)(2)(A)(i) because the evidence was clear that the offense involved “one specific package.”

USA v. Tejas, 16-16336 (11th Cir. Aug. 23, 2017)

http://media.ca11.uscourts.gov/opinions/pub/files/201616336.pdf

FLSD

Valarie Linnen, Esq. Criminal, Civil, and Administrative Appeals
Postconviction Relief
PO Box 330339, Atlantic Beach, FL 32233
PO Box 200, Chippewa Lake, MI 49320
888.608.8814
vlinnen@live.com
www.FlaCaseLaw.com