Florida Criminal Appeals and Post-Conviction
Former Prosecutor with 27 Years of Experience
Appeals Lawyer
Former Prosecutor with 27 Years of Experience
Appeals Lawyer

Can I appeal my case to the Florida Supreme Court?

The Florida Supreme Court recently issued several opinions that make it harder for a criminal defendant to appeal his or her case. The justices in Tallahassee have also made it more difficult for defendants in the lower court. Unfortunately, this trend continues. Not every criminal appeal is successful. Sometimes the law is against you, sometimes the facts, and all too often, the trial lawyer missed an issue. An appeal in the District Court can be presented to the Florida Supreme Court, but only in limited circumstances.  This occurs when there is a written opinion and discretionary grounds for the court to accept jurisdiction.

The most common type in criminal appeals involves direct and express conflicts with decisions from other Florida District Courts or the Florida Supreme Court. This is rather difficult to meet because it requires express language from the Florida appeals court certifying a conflict. However, skilled criminal appeals lawyers know about a “loophole” that allows the Florida Supreme Court to accept conflict jurisdiction, called misapplication conflict.  This means the appellate court simply misapplied the ruling from another appeals court. Unfortunately, this loophole was closed in May 2024 by the Florida Supreme Court.

After allowing this type of jurisdiction for over 50 years, the court receded from this nuance in the law and issued an opinion in Askew v. Florida Dept. of Children and Families. The court explained: “we acknowledge the flaws in our misapplication jurisprudence and recognize that we overstepped our constitutional authority by applying this theory of conflict jurisdiction. [We now hold] misapplication alone is not sufficient to trigger conflict jurisdiction under article V, section 3(b)(3) of our constitution.”  This will effectively negate the ability to appeal most criminal cases to the Florida Supreme Court. But is there a loophole to this new case? The Court did say “misapplication alone” will be insufficient to invoke jurisdiction. Will the word “alone” leave the door open for jurisdiction if a misapplication of law is shown and another factor exists?

Can I get a bond after being convicted, but before I am sentenced?

Yes, a trial court has discretion to consider releasing a defendant on bail following conviction and pending sentencing. Florida Rule of Criminal Procedure 3.550 expressly allows this: “If the defendant is at large on bail, the defendant may be taken into custody and committed to the proper official or remain at liberty on the same or additional bail as the court may direct.” After conviction, release on bond pending sentencing is not a matter of right but is discretionary with the court. The Kraft v. State, 156 So.3d 1116 (Fla. 4th DCA 2015) case recognizes that this is allowed. This is different than seeking bail on appeal, which has a much higher standard.

Can I get an appeals bond for a sexual offense involving a minor?

Florida Statute 903.133 sets forth the offenses which makes a defendant ineligible for an appeal bond, also known as a supersedeas bond. In 2020, the legislature made it stricter and prohibited convicted defendants from obtaining an appeal bond if 1) the offense required sexual offender or predator registration; and 2) the offender was over 18 and the victim was a minor. So there is no bond on appeal for those charged with lewd molestation, lewd conduct, or lewd battery offenses involving a minor if the offender is an adult.

Can lack of remorse be considered during my sentencing?

Consideration of a defendant’s lack of remorse used to be prohibited in Florida criminal courts. This was prohibited because this was deemed a due process violation, as well as a violation of a defendant’s Fifth Amendment right to remain silent. Mr. Forman has successfully overturned sentencing in criminal appeals when this occurred in the past, but things have changed.

In a dramatic shift, the Florida Supreme Court ruled earlier this month in Davis v. State, 2021 WL 5710820 (Fla. 2021), that a trial judge can impose a harsher sentence if a defendant fails to show remorse. The Court held “when a defendant voluntarily chooses to allocute at a sentencing hearing, the sentencing court is permitted to consider the defendant’s freely offered statements, including those indicating a failure to accept responsibility. ”

This ruling will have a chilling effect on whether a defendant testifies at sentencing. Criminal defense lawyers now have to choose between having their client remain silent at sentencing unless they are going to admit guilt and apologize. Other considerations must now be considered. Will the Florida Supreme Court expand this ruling to also include testimony at trial? What happens if a defendant appeals and prevails, can this admission be used at trial? This certainly is not the last we hear on this issue.

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