Florida Criminal Appeals and Post-Conviction
Former Prosecutor with 25 Years of Experience
Appeals Lawyer
Former Prosecutor with 25 Years of Experience
Appeals Lawyer

posted 2017 | S.P. v. State

A terrific victory which was won solely because of excellent lawyering and vast knowledge of the confusing self-defense laws. The client was charged with committing burglary and misdemeanor battery.  The client was charged with burglary for entering his neighbor’s residence during a fight, which was the battery charge. At trial, defense counsel argued that the client acted in self-defense and was entitled to rely on this defense for both offenses. The trial court only allowed the jury to be instructed with self-defense for the misdemeanor battery offense.

The jury rejected this defense, the client was convicted and he was sentenced to prison. Mr. Forman was hired on appeal and informed the client and his family that he was concerned that the rejection of the self-defense for the battery offense would result in a finding of harmless error on appeal.  In other words, even if the court improperly denied the request for the jury instruction, the jury would have nevertheless convicted the client since they did not find that the client acted in self-defense for the battery offense.

However, while reviewing the record, Mr. Forman noticed that the instruction given to the jury was erroneous because it contained an extra comma – an error that was previously recognized by appellate courts throughout the state.  Neither the trial judge, the prosecutor, nor defense counsel noticed this small detail.

As a result of this error, Mr. Forman was able to convince the three judge appellate court to reverse the client’s conviction and prison sentence and grant a new trial. Mr. Forman argued that the erroneous instruction could have resulted in the rejection of the defense by the jury and therefore, the error in denying the instruction was not harmless.  Without Mr. Forman’s ability to recognize that the instruction had an additional comma, then the court would have denied the appeal. Obviously, the client and his family are happy with the result!  Just another example of how important it is to hire the right appellate lawyer, not just any lawyer.

posted 2017 | Oil, LLC  v. Stamax CORP.

Other lawyers know who to reach out to when they need a great appellate lawyer to represent them. Although almost all of his appeals are criminal appeals, Mr. Forman is often asked to to assist in all types of matters and once again, he delivered! Mr. Forman was hired to represent a lawyer in a civil case who was successfully removed from acting as the lawyer for his corporate client.  This left the client without the lawyer of his choice. It also was costly to the lawyer.

The trial court disqualified counsel on the basis that counsel learned confidential information from the other party to the lawsuit whom he represented when the parties worked together before the lawsuit.  The trial court found that once the other party sought counsel’s help, this formed an attorney/client relationship where confidential information was shared.

Mr. Forman made several arguments to the court, including the obvious one – that there was no attorney/client privilege because both parties were in the room when counsel was being consulted. The three judge appellate panel agreed with Mr. Forman and reversed the disqualification of counsel.  To the dismay of opposing counsel, trial counsel was back on the case!

posted 2017 | B.H. v. State (Update)

The client, along with two other boys, were arrested and charged with second degree murder and two counts of attempted second degree murder.  All three defendants were convicted and sentenced to prison. The client was sentenced to 30 years in prison. The client filed an appeal seeking a new trial based upon defective jury instructions.  The appellate court denied the appeal.  No motion for rehearing was filed.

However, the co-defendant, whose appeal was completed after the client’s appeal, did receive the benefit of the erroneous jury instruction.  His case was pending before the Florida Supreme Court.  Mr. Forman was hired by the Client’s family to handle the case even though the appellate process had already been exhausted. This was done just in case the co-defendant prevailed in the Florida Supreme Court.

Mr. Forman filed a petition for writ of habeas corpus in order to correct a manifest injustice in the appellate court.  Even though the attorney general’s office vigorously opposed the petition, the Fourth District Court of Appeals granted the petition and ordered that the client be given a new trial for the attempted second degree murder charges. This would allow the client to be re-sentenced or retried before another jury on the vacated charge. 

However, the Florida Supreme Court just reversed the co-defendant’s case that was before the Florida Supreme Court. The court ordered that all of the co-defendant’s convictions be vacated. Mr. Forman filed a motion in the appellate court seeking the same relief as his co-defendant.  The appellate court granted the motion! As a result of Mr. Forman’s previous petition and this motion, his client’s murder conviction was also vacated. All of the client’s convictions were overturned on appeal! Without Mr. Forman’s knowledge and understanding of the appellate process, his client’s convictions would still remain. Client will be brought back to court for a trial or negotiated plea and is obviously very happy.

posted 2017 | State v. RS

The client was arrested in a sting operation when she attempted to sell oxycodone to an undercover officer. When she was arrested, she also had Hydrocodone pills in her purse.  The amount of these Hydrocodone pills required a 25 year minimum mandatory sentence.  The client agreed to cooperate with law enforcement, but the agreement was breached when she was arrested for a driving offense. She was going to go to prison.

Facing the 25 year mandatory sentence, the client decided to enter a plea and was sentenced to 78.5 months in prison. After almost two years, the client hired Mr. Forman to see if she can get some sort of sentence reduction. Mr. Forman reviewed the files and subsequently filed a Motion for Post-Conviction Relief under rule 3.850 alleging that counsel was ineffective for failing to raise the lawful proscription defense.

The client’s previous lawyer failed to recognize that the Hydrocodone pills that were in her purse were not offered to be sold during the undercover sting and thus, she can rely on this defense since she had a lawful prescription. Counsel should have filed a sworn motion to dismiss.

After filing the post-conviction relief motion, the State agreed that Mr. Forman was correct and dropped the trafficking charge!  This allowed the client to be re-sentenced and have her sentence reduced from 78 months in prison to only 31 months in prison – a reduction of over 50%!  Since the client had so much time already in custody, the client was shortly released.  Unfortunately, criminal defense lawyers sometimes drop the ball.  

posted 2017 | State v. JS (Duval County) 

Once again, this is the perfect example of how an experienced criminal appellate lawyer makes a difference! The client was convicted of second degree murder and conspiracy to commit armed robbery in Jacksonville. He was sentenced to 22 years in prison.  After looking for a great appellate attorney, his parents decided to hire Mr. Forman. After reviewing the transcripts, Mr. Forman discovered something that nether the judge, prosecutor or defense counsel noticed – that the conspiracy offense could not be used in order to conviction for second degree felony murder.  Because defense counsel did not notice and failed to object, Mr. Forman was forced to rely on the dreaded fundamental error standard, a very difficult appellate standard of review.

Despite having to overcome this standard, Mr. Forman was able to convince the court to vacate the murder conviction and ordered a new trial!  Since the conspiracy conviction remained intact, the client is entitled to be re-sentenced.  This is critical because the trial judge wanted to give a less harsh sentence, but he was forced to give the 22 years because it was the minimum allowed by law.  It is unknown whether the client will go to trial or try to negotiate the plea offer given before trial, which was only 3 years in prison. Again, this was another successful appeal where Mr. Forman noticed an error that no else knew existed, not even the judge. Since this just happened, an update will be posted.

posted 2017 | State v. JJ

Hire the right lawyer, get the best possible result! This case was a bit crazy and involved a judge’s son who was arrested for several counts of trafficking drugs which carried a 15 year minimum mandatory sentence. The client was represented by another criminal defense attorney and decided that he would perform substantial assistance. The client signed an agreement that expressly stated that if he failed to abide by the rules, then he would automatically be sentenced to 15 years in prison.

Unfortunately, the client relapsed and continued to use drugs.  He also failed a polygraph test.  Since the judge’s son already entered into a plea, sending him to prison for 15 years was simply a formality. Recognizing the need for a solid criminal appellate lawyer, Mr. Forman was retained as co-counsel in order to find a way to avoid the 15 year prison sentence. Once again, Mr. Forman found a way to get it done. After combing through the paperwork, Mr. Forman discovered that the trial court never officially accepted the client’s plea- a minor technically that few attorney’s would notice. In fact, the judge, prosecutor and trial counsel did not even notice this error.

The trial court agreed and vacated the client’s plea! Mr. Forman and his co-counsel prepared the case for trial and filed several motions to dismiss based upon entrapment. Depositions were conducted, even as far as in Oklahoma. Since the client had already been in custody for over two years, Mr. Forman and co-counsel were able to convince the prosecutor to give the client a five year sentence, with credit for the two years that he served.  Needless to say, the client and his family were thankful that Mr. Forman was able to reduce his sentence by 10 years. 

posted 2017 | State v. JR

This is why you need a lawyer who is willing to fight hard for his clients, even if it means challenging a judge. Client was charged with armed burglary and fifty-five counts of grand theft of a firearm. After reviewing the case, Mr. Forman determined that several motions had to be filed in order to reduce the charges and exclude the evidence discovered upon a unlawful search. However, before filing the motions, Mr. Forman discovered that the judge’s spouse was a detective for the same police agency who arrested the client. The judge did not disclose this critical fact.

Upon learning of this fact, Mr. Forman knew that his client’s motions would never be granted because the credibility of the officers would be challenged. Mr. Forman filed a motion to disqualify the judge, arguing that the client was afraid that he would not receive a fair hearing.  Surprisingly, the judge denied the motion. Based on his past experience, Mr. Forman knew that an appeal would get the job done. As expected, Mr. Forman won the appeal and his petition for writ of prohibition was granted! The client was thrilled and is hopeful for a fair resolution.

posted 2016 | State v. B.D

This is an update from the post listed below where Mr. Forman was able to obtain a reversal of the trial court’s denial of his motion for disqualification. The client was sentenced to 15 years after he entered an open plea.  After winning the appeal, the case was sent to another judge as required by the appellate court. Amazingly, the prosecutor agreed to stipulate to the motion to mitigate and the client was sentence to time served (4 years and 352 days)!  He was released last week just in time for the holidays. Mr. Forman was able to help give his client a decade of his life back.  The lawyer you hire can certainly make a difference!

posted 2016 | B.D. v. State (Broward)

This is another example of how the appellate lawyer you choose makes all the difference! This case was highly publicized and involved 10 co-defendants accused of operating a boiler room.  The defendants were charged with numerous offenses, including organized scheme to defraud, punishable by 30 years in prison.  Hundreds of thousands of dollars were involved in the fraud.

One of the defendants entered an open plea to the judge, who was known as the toughest judge in the county. Shockingly, this defendant was sentenced to 15 years in prison.  All of the other co-defendants subsequently resolved their case and received supervision and no jail time.

Mr. Forman was hired to help the client withdraw his plea, arguing several grounds, including that the judge was biased against indigent defendants who were unable to afford to pay restitution. This was based upon a recent case that Mr. Forman was very familiar with because he used before to obtain relief. Mr. Forman filed a motion to disqualify the judge based upon this bias.  A motion to mitigate sentence was also filed, arguing that the sentence imposed was disproportionate to the sentences imposed in all of the other cases.

Mr. Forman knew that if the motion for disqualification was granted, the motion to withdraw plea and the motion to mitigate his sentence would have to be heard by a different judge. Mr. Forman had no doubt that the 15 year sentence would be greatly reduced, but only if another judge heard the case. As expected, the judge denied the motion for disqualification.

Knowing that obtaining a new unbiased judge was critical in this case, Mr. Forman filed an appeal – a petition for writ of prohibition – in the appellate court. Mr. Forman was confident that the appeal would be granted because of existing caselaw that was recently decided. Unfortunately, the appellate court made new caselaw two weeks before the ruling on the client’s appeal, a rarity, which resulted in the denial of the writ. The trial court denied the motion to mitigate sentence and the client’s motion to withdraw plea.

The client once again hired Mr. Forman to handle the appeal of the denial of the motion to withdraw plea.  However, Mr. Forman had a clever idea.  He knew that the recent caselaw which was made weeks prior to the filing of his writ of prohibition was pending before the Florida Supreme Court. He also knew that if the Florida Supreme Court reversed that decision, then it would make his appeal more likely to succeed.

Mr. Forman filed his appeal, arguing that the motion to withdraw plea should have been granted. Importantly, he also argued that if the Florida Supreme Court reversed the decision of the new case law, then the client’s case should also be reversed and sent back to a new judge based upon the bias. This was the fallback argument that was presented even though the appellate court already denied the appeal on this issue.

Months passed until finally the Florida Supreme Court reversed the new case law, which opened the door for success in this appeal. After a few more months, the appellate court reversed the denial of the client’s motion for disqualification! The appellate court found that the judge did have a policy of sentencing indigent defendants to harsher sentences. This decision meant that the client will have a new judge to hear his motion to withdraw plea and motion to mitigate!  The client and his family were thrilled, especially since the prosecutor, after congratulating Mr. Forman, indicated that the case could be resolved.  This is another reason why Mr. Forman is one of the most respected criminal appellate lawyers in Florida.

posted 2016 | B.O. v. State (Volusia County)

Client was arrested and charged with aggravated battery.  Client was convicted at trial and sentenced to prison. Although the client and his family requested that his defense attorney file an appeal on his behalf, defense counsel failed to do so.  Client was incarcerated in prison without any appeal filed on his behalf.

Client’s family contacted Mr. Forman, who knew exactly what needed to be done in order to correct the mistake.  Mr. Forman filed a petition in the appellate court and the court granted the client the right to file an appeal! Client now has an appeal pending and can challenge his judgment and sentence.

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