There's no better story than that of someone unjustly convicted being set free. This is our legal system at work. Read our criminal appeals case results to hear our clients’ stories—from their arrests through initial trials ending in our successful appeal of their convictions. We share these results to give hope to individuals whose rights have been violated.
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Fifth DCA Reverse and Remands Summary Denial of Rule 3850 Motion - Trial Court Erred - Malove Team Wins Another One!
Our client was charged with four counts of attempted second-degree murder and one count of shooting or throwing deadly missiles into an occupied vehicle. He was represented by a private attorney. According to the state on the night of October 25, 2017 4 people were sitting in a car after returning from the store in a driveway. While remaining in the car one of the passengers was live streaming a video of herself on Instagram, and moments after the live streaming began a vehicle approached them from the left and one of the occupants of that vehicle began shooting in their direction. When the shooting stopped, the four of them exited the vehicle, ran inside one of their homes, and called 911. When the police arrived one of the victims provided them with photographs of two individuals she thought were involved with the shooting. One of the pictures was of our client.
At trial the victim who produced the two photographs testified that she was 18 years old, knew our client, went to middle school with him, and implied she had sexual relations with our client. None of the other witnesses who testified could identify our client as the shooter, however one of the other witnesses did identify who was driving the car. In closing argument, trial counsel highlighted the fact that there was no evidence other than Ms. Gaylord’s word that our client was the individual in the passenger seat shooting the gun, and therefore her credibility is a large part of the State’s evidence. Trial counsel further argued that the victim was merely assuming our client was the shooter because she had seen our client in the background with the person identified as the driver of the car the shots were fired from on live social media earlier that day. At the conclusion of the trial our client was convicted of the lesser included offense of attempted manslaughter by act and convicted, as charged, of shooting or throwing deadly missiles into an occupied vehicle. His convictions and sentences were affirmed on direct appeal without opinion.
The Law Offices of Robert David Malove were hired to review his case and determine if his trial counsel was ineffective. After reviewing his case we determined there were two claims of ineffective assistance of counsel that needed to be raised in a Rule 3.850 motion. A motion was filed alleging that trial counsel was ineffective for (1) failing to investigate and introduce critical impeachment evidence concerning one of the alleged victims who was the only witness who identified our client; and (2) trial counsel was ineffective for failing to object and move for a mistrial when the state vouched for the credibility of the state’s star witness.
In ground one we asserted that our client informed trial counsel prior to trial that he never went to middle school with the victim and he did not have sexual relations with her. We argued that trial counsel could have easily proved they did not go to school together by obtaining both of their middle school records, and this would have shown the jury this victim was absolutely lying. Trial counsel should have used her false testimony to impeach the only witness who identified our client as the shooter and the jury would have clearly found her testimony was unreliable. Trial counsel’s failure to investigate and utilize this information to discredit the State’s only witness who identified our client as the shooter amounts to deficient performance. McBride v. State, 252 So. 3d 389 (Fla. 1st DCA 2018) (where victim’s credibility was the key issue, trial counsel was ineffective for failing to investigate and obtain school records to impeach the victim). We further argued that this deficient performance prejudiced our client because victims’ identification of our client was the only evidence implicating his involvement in these crimes. There was no DNA recovered, no fingerprints, no gunshot residue, no additional eyewitnesses placing our client at the scene, no confession. Only the victims’ testimony stating “Yup, that’s him. We went to middle school together and had sexual relations, that’s how I know him.”
The trial court summarily denied our clients Rule 3.850 motion and ruled our claim lacked merit. In support of this conclusion the trial court stated “The manner in which the victim became acquainted with our client would have been purely collateral to the issue of whether he was the shooter, because it did not involve a material, significant fact. It would not have been admissible into evidence for any purpose other than contradicting the witness; did not tend to discredit the witness by establishing her bias, corruption, or lack of competency; and did not reflect on our client’s guilt or innocence. Therefore, this Court finds no basis to conclude that counsel’s performance was deficient due to his failure to cross-examine the victim on the issue of how they met.”
We filed a notice of appeal to the Fifth District Court of Appeal. In our initial brief we argued the trial court erred in summarily denying our claims. The Fifth DCA ordered the state to file a response, and on May 3, 2024 a written opinion was issued by the Fifth DCA reversing the summary denial of ground one for further proceedings. In relevant part the DCA concluded that
Dennis is correct that a “failure to impeach a key witness may constitute ineffective assistance of counsel.” Hipley v. State, 333 So. 3d 1194, 1197 (Fla. 5th DCA 2022) (citing Bentley v. State, 867 So. 2d 515, 516 (Fla. 1st DCA 2004)). Dennis alleged in his motion that impeachment was important because there was no DNA, fingerprint, or gunshot residue evidence implicating him in the crimes charged; he made no confession; and there were no witnesses, other than one of the victims, who placed him at the scene of the crime. Where, as here, no evidentiary hearing is held on a rule 3.850 motion, these factual allegations must be accepted as true, to the extent that they are not refuted by the record. Colon v. State, 909 So. 2d 484, 489 (Fla. 5th DCA 2005) (citing Peede, 748 So. 2d at 257). From these allegations contained in Dennis’s motion, the credibility of the State’s key witness, would have been a critical factor for the jury when assessing his guilt. See Klaus v. State, 236 So. 3d 483, 486 (Fla. 5th DCA 2018) (recognizing that the impeachment of a state’s key witness could have made a difference at trial when “his ‘trustworthiness was critical to the State’s case’” (citations omitted)). We disagree with the postconviction court’s conclusion in its order that how the state’s key witness became acquainted with Dennis was immaterial. The state’s key witness positive identification of Dennis as the shooter may very well have carried more weight with the jury based on their prior history than if the two had never previously met. Furthermore, the reliability of one of the state’s key witnesses testimony may have been adversely impacted if her stated basis on direct examination of knowing Dennis since middle school had been impeached for being untrue. See Jennings v. State, 123 So. 3d 1101, 1118 (Fla. 2013) (recognizing that counsel’s failure to adequately investigate and impeach a state’s witness “deprived the jury of the ability to make a fully informed decision about [the witness’s] credibility”). With no transcript of the state’s key witnesses trial testimony attached to the denial order, the extent of Dennis’s counsel’s efforts at effectively impeaching her testimony is unknown based on the instant record. Accordingly, because Dennis’s claim in ground one is facially valid and has not been conclusively refuted by the record, we reverse the order summarily denying ground one and remand for the court either to hold an evidentiary hearing or to attach additional records that conclusively refute this claim.
This case was returned to the trial court after a mandate was issued and we are in the process of awaiting an evidentiary hearing date. Needless to say our client is extremely happy and looking forward to his day in court to prove trial counsel was ineffective.
[Related: DCA Order]
Reverse And Remand For Evidentiary Hearing - 4th DCA Finds Trial Court Erred In Summarily Denying Rule 3.850 Motion.
The defendant was charged one count of vehicular homicide; two counts of DUI manslaughter; and once count of DUI with property damage. According to the arrest report, the defendant was transported to the hospital by law enforcement after the accident. While being treated for his injuries, a detective advised the defendant that he was conducting a criminal DUI investigation, read the defendant his Miranda warnings, and asked the defendant if he would provide a voluntary blood sample. According to the detective the defendant consented and signed a consent form. A blood sample was taken from the defendant and it contained a concentration level of 0.16 g/dl Ethanol.
During discovery trial counsel was presented with the blood sample results, which clearly showed the defendant’s blood alcohol level was double the legal limit. As a result of this overwhelming proof of intoxication, the defendant entered an open plea of no contest to one count of DUI manslaughter and DUI property damage. The defendant was sentenced 12-years in Florida State Prison, with a 4-year minimum mandatory, followed by 12 months of probation.
This defendant then hired the Law Offices of Robert David Malove to review his case and make a determination if his trial counsel was ineffective. From the beginning, our client advised us that he never consented to a blood draw, and that he repeatedly told trial counsel that he did not, but it fell on deaf ears. After obtaining our clients trial attorney file, we reviewed the case file, interviewed the client, and as it turned out, there was no consent form in trial counsel’s file. To be thorough, we requested a copy of the consent to provide blood sample form from the state through a public records request. We were informed that there was no such form in the state attorney’s file.
Based upon the foregoing information we filed a one ground Rule 3850 motion, alleging that trial counsel was ineffective for failing to file a motion to suppress the blood sample taken in violation of our client’s 4th Amendment rights. We explained to the trial court that contrary to the detective’s probable cause affidavit, our client never consented to providing law enforcement with a legal blood sample, and trial counsel should have known that as there was no signed consent form provide to him. The trial court directed the state to file a response, and after the state’s response was filed, the trial court summarily denied our client’s claim based upon the state’s response.
This was not the end of our fight. We filed a notice of appeal to the 4th DCA, and argued that the trial court’s conclusion that a motion to suppress the blood sample would not prevail solely by operation of Florida Statute 316.1933(1)(a) was erroneous; and that the trial court’s reliance on hearsay allegations in the police affidavit as undisputable facts to presume our client would have been convicted of counts one and two was contrary to well established law.
In its summary denial the trial court adopted the State’s argument that the motion to suppress would not have prevailed because unwarranted blood draws are permissible under § 316.1933(1)(a) where a death is involved. On appeal we argued that this assessment is no longer valid after Missouri v. McNeely, 569 U.S. 141 (2013). There, the United States Supreme Court set-forth a clear rule: “In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.” Id. at 152. Florida courts have examined § 316.1933(1)(a) in light of McNeely and held that McNeely controls. See State v. Liles, 191 So. 3d 484 (Fla. 5th DCA 2016) (rejecting the State’s argument that § 316.1933(1)(a) is a general exception to the warrant requirement that applies even after McNeely); Dusan v. State, 323 So. 3d 239, 242 (Fla. 5th DCA 2022) (same and refusing to State’s request to apply the good faith exception discussed in Liles, given the “crystal-clear example” from McNeely which should have guided law enforcement). We further argued had trial counsel filed a motion to suppress the warrantless blood draw in this case, the burden would have been on the State to establish either consent (which Appellant disputed) or a valid exception to the warrant requirement as required by McNeely. No such exception existed in this case and none was claimed by the State in response to the Rule 3.850 motion below. The fact that the incident involved a death, standing alone, does not give law enforcement carte blanche to forcibly withdraw blood without a warrant pursuant to § 316.1933(1)(a). Accordingly, Appellant’s motion to suppress would have prevailed and the lower court erred by denying the claim on that basis.
The 4th DCA issued a written opinion that stated:
Appellant appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion, filed after he pled no contest to DUI manslaughter and DUI property damage. We reverse and remand for either attachment of record documents conclusively refuting the claim or for an evidentiary hearing. Within his timely filed rule 3.850 motion, appellant alleged that trial counsel failed to file a pretrial motion to suppress to challenge warrantless hospital blood draws or advise appellant that suppressing the blood evidence was a viable “defense.” Appellant alleges the motion would have been meritorious because he did not consent to the blood draws, and if filed, he would have proceeded to trial. Appellant’s claim is cognizable and not refuted by the record furnished. See Guevara v. State, 227 So. 3d 205, 207 (Fla. 5th DCA 2017); Brown v. State, 967 So. 2d 440, 443 (Fla. 4th DCA 2007). We note that the state’s responses focused on other admissible evidence of appellant’s impairment 2 to refute any claim of prejudice. However, because appellant pleaded no contest, Hill v. Lockhart, 474 U.S. 52, 59 (1985), and Grosvenor v. State, 874 So. 2d 1176, 1181-82 (Fla. 2004), require consideration of other factors to determine whether a reasonable probability exists that appellant would have insisted on going to trial. Such circumstances include whether a particular defense was likely to succeed at trial, the plea colloquy between the appellant and the trial court, and the sentence imposed under the plea compared to the maximum possible sentence which appellant would have faced at trial. Grosvenor, 874 So. 2d at 1181-82. On remand, the trial court is to determine if trial counsel was ineffective by failing to file a meritorious motion to suppress. If so, the trial court must next determine whether there is a reasonable probability that, but for counsel’s error, appellant would not have pleaded guilty and would have insisted on going to trial. Reversed and remanded.
Attention to detail, that is the phrase that pays. Had trial counsel paid attention to his client and requested the alleged consent form, he would have known the officer’s affidavit was untruthful and our client’s blood was taken illegally.
District Court of Appeal of the State of Florida Fourth District
Fourth DCA Grants Direct Appeal - First and Second-degree Theft Convictions and Sentences Reversed and Remanded for New Trial-Williams Rule Evidence Improperly Admitted
The defendant was represented by the office of conflict counsel after being charged with Count 1: grand theft in the first degree; Counts 2 and 3: grand theft in the second degree; and Count 3: structuring currency transactions to evade reporting or registration requirements. The defendant proceeded to trial and was found guilty of first and second-degree grand theft. The trial court sentenced the defendant to 34.5 months in prison followed by 10 years of probation. The defendant retained The Law Offices of Robert David Malove to represent her on direct appeal.
After being retained we filed the required motions to have our client’s trial transcribed. After we received the record on appeal and trial transcripts we reviewed his entire appellate file. After our review of the appellate file, we began researching case law and determined the trial court committed two errors. (1) the trial court abused its discretion in admitting improper and prejudicial Williams Rule evidence; and (2) the trial court erred when it denied the judgment of acquittal.
In our first claim we argued to the Fourth District Court of Appeal (DCA) that the trial court erred by allowing alleged fraudulent actions of our client’s bankruptcy case to be presented at her trial in violation of Williams v State, 110 So.2d 654 (Fla. 1959), otherwise know as Williams Rule evidence. Our position was the admission of this Williams Rule evidence was error because any fraudulent actions purportedly committed during the bankruptcy proceedings were not relevant, as such actions were not similar to the theft offenses at issue. The state, on the other hand, argued the evidence of our client’s alleged fraudulent actions in the bankruptcy case were relevant and admissible to establish her intent, knowledge, and absence of mistake or accident in committing the theft offenses charged.
In support of this argument, we showed the DCA In our briefs that our client was charged with grand theft in the first and second degree. To prove grand theft, the State must establish that the defendant knowingly obtained or used, or endeavored to obtain or use, the property of another with intent to deprive that person of a right to the property or benefit therefrom. Whereas our client’s alleged fraud in the bankruptcy proceedings appears more akin to a fraudulent transfer rather than the theft offenses charged by the State. See § 726.105(1)(a), Fla. Stat. (2015). A debtor commits a fraudulent transfer if the debtor transfers property “with actual intent to hinder, delay, or defraud any creditor of the debtor.” Id. Such transfers are distinct from theft because a fraudulent transfer involves a defendant transferring her own property to avoid having to pay a creditor. Id. In contrast, theft involves a taking of property belonging to another. See § 812.014(1)(a), Fla. Stat. (2015).
We concluded this argument by showing the DCA the admission of this evidence was highly prejudicial evidence that did not meet the standard for Williams Rule evidence and should have been excluded. The jury likely held it against our client and believed that she had committed fraud on her application for bankruptcy. This discredited her testimony in the instant case that she had nothing to do with the dealings of the business and did not intend to defraud anyone relating to Tropical Automotive. Consequently, our client was deprived of a fair trial. We asked the Court to reverse and remand for a new trial
A DCA reviews a trial court’s decision to admit collateral crime evidence, also known as Williams rule evidence, for an abuse of discretion. In Williams our Florida Supreme Court established that “Williams rule evidence is evidence of other conduct, which, pursuant to section 90.404(2)(a), Florida Statutes, is similar to the charged offense and is relevant to prove a material fact in issue, such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Williams rule evidence is “inadmissible when the evidence is relevant solely to prove bad character or a defendant’s propensity to commit a crime.” Id. (citing § 90.404(2)(a), Fla. Stat.). Collateral crime evidence, even if dissimilar to the crime charged, may be admitted if it is both relevant and probative of a material fact in issue. Similarity of offenses is only a requirement to admit collateral crime evidence if the similarity between the collateral crime and the charged offense is what gives the evidence probative value. Evidence of a collateral crime is inherently prejudicial because it creates the risk that a conviction will be based on the defendant’s bad character or propensity to commit crimes, rather than on proof [the defendant] committed the charged offense.
The 4th DCA agreed with our position and held that our client’s alleged “fraud in the bankruptcy case does not tend to prove or disprove that she knowingly obtained or used, or endeavored to obtain or use, the property of another with the intent to deprive them of a right to the property or a benefit of the property. Therefore, such evidence was not probative as to any material issue in this case. Accordingly, we reverse and remand for a new trial on counts 1 and 2.” See attached 4th DCA written opinion. Needless to say, our client is extremely happy with the outcome of her direct appeal.
[Related: Opinion Disposition]
Client Direct Appeal Granted - Double Jeopardy Violation - Trial Court Erred by Re-Sentencing the Defendant 60-Days Later to 6 More Years in Prison Than it Originally Imposed
Our client was charged with two counts of vehicular homicide and two counts driving while license suspended causing serious bodily injury or death. The Client entered an open plea to the court and a sentencing hearing was held. Trial counsel filed a motion for downward departure and asked the trial court to sentence the client as a youthful offender. The State objected to a youthful offender sentence and asked the trial court to sentence our client to 18 and a half years in Florida State Prison. The trial court found there was a valid reason to depart, granted the downward departure, and sentenced our client to 12-years in Florida State Prison followed by 15-months’ probation. Neither the State of the client appealed the judgment and sentence.
Approximately 2-months later the trial court sua sponte set a re-sentencing hearing on the basis the PSI report had inaccurate information. At the re-sentencing hearing the State asked for the same sentence the trial court previously imposed. The trial court, however, re-sentenced our client to 18-years in Florida State Prison followed by 7-years of probation. Trial counsel asked the trial court what occurred since the original sentence of 12-years followed by 15 months of probation was imposed that would warrant an increase in the client’s sentence. The trial court responded it actually looked at the PSI report and was prepared for today and that is why the additional 6-years in Florida State Prison was imposed.
The Client hired the Law Office of Robert David Malove and we obtained and reviewed the entire case file. We then filed a notice of appeal, and a motion to correct a sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) in the trial court. Within our motion we argued that (1) the original sentence of 12-years began to run once our client was escorted out of the courtroom and taken to jail; (2) the trial court had no authority to resentence our client 60-days after his legal sentence was imposed; and (3) the increasing of our client sentence from 12-years to 18-years violated double jeopardy. The trial court denied the motion and we filed our initial brief.
After reviewing our initial brief, the State filed their answer brief conceding the trial court erred by resentencing our client from 12 to 18 years in Florida State prison followed by 69-additional months of probation. The 5th DCA, on confession of error granted our clients appeal and held the trial court violated our clients’ rights against double jeopardy when on its own initiative enhanced his sentence 60-days after imposing a legal sentence. The 5th DCA ordered the trial court to reinstate our client’s initial sentence.
[Read More: Robert Malove Saves Client 6 Years in Prison]
Trial Court Erred in Denying Motion to Correct Illegal Sentence - Appeals Court Remanded to Vacate New Sentence
Our client pled to DUI with property damage and leaving the scene of an accident involving unattended property. The client also went to trial on DUI manslaughter and leaving the scene of an accident with property damage. After a trial by jury the Client was found guilty of DUI manslaughter and of leaving the scene of an accident with property damage. The client was sentenced to 15-years in prison for the DUI manslaughter, time served on leaving the scene of an accident with property damage and leaving the scene of an accident involving unattended property, and 1-year of probation on the DUI with property damage.
The client filed a Rule 3.850 motion and the trial court vacated his judgment and sentence on the DUI manslaughter. The client was released on bond and ordered to report to probation and begin serving his probation sentence on the DUI with property damage conviction. After the client completed his probationary sentence, he took a plea on the DUI manslaughter to a reduced sentence and was remanded to prison to serve the remainder of his sentence. Notably, when the trial court re-sentenced the client on the DUI manslaughter offense, it included the 1-year probationary sentence on the DUI with property damage.
While in prison the client filed a pro se motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a). Within his motion he argued that the trial court erred when it resentenced him to 1-year of probation on the DUI with property damage. The client attached a letter from the Department of Corrections to his motion showing he completed the 1-year of probation while he was out on bond after his sentenced was vacated. The trial court denied the clients motion and The Law Office of Robert Malove was retained.
On appeal we argued that the trial court erred by re-sentencing our client to 1-year of probation since he already served the 1-year of probation. We also argued that re-sentencing the client to a term of probation he already served was a double jeopardy violation. The First District Court of Appeal in Tallahassee, Florida, agreed that the trial court improperly re-sentenced the client to 1-year of probation and remanded it back to the trial court with directions to grant our client’s motion to correct an illegal sentence and vacate the re-imposed 1-year probation sentence.
Petition for Ineffective Assistance of Appellate Counsel Granted After Trial Court Applied Incorrect Legal Standard on New Trial Motion
Our client was charged with aggravated battery with a firearm. The evidence at trial showed the client was involved in an argument with a man who was hanging out with a small group of people outside of a business. The client and the individual got into a heated argument and the individual, along with his small group of friends, approached the client. The client, who was now in fear for his life retrieved a firearm from his truck and fired two warning shots. Unfortunately, one of the warning shots hit a wall and struck a woman.
After the jury returned a verdict of guilty, trial counsel filed a motion for new trial. Within the motion, trial counsel pointed out that the woman who was struck by the stray bullet had given a previous statement to law enforcement wherein she stated it did not look like the client was shooting at the individual, it looked like he was just trying to scare them off. The motion argued that the greater weight of the evidence showed a lack of intent to touch or strike which is an essential element of aggravated battery. Trial counsel argued that the verdict was contrary to the weight of the evidence and that the State failed to prove that the client “intentionally” shot the victim against her will. The State responded by arguing that this is not the time for the judge to sit in the place of the jurors. The trial court agreed with the State and denied the motion.
The client then hired The Law Office of Robert David Malove to review his case. We went to work. After reviewing the case file, we filed a petition for ineffective assistance of appellate counsel, pursuant to Florida Rule of Appellate Procedure 9.141(d). We argued that appellate counsel was ineffective for failing to argue that the trial court applied the incorrect legal standard of review when denying the client’s motion for new trial.
The 4th District Court of Appeal in West Palm Beach, Florida, agreed with our argument and determined that appellate counsel was ineffective for failing to raise this meritorious issue and remanded it back to the trial court to reconsider the motion for new trial under the correct legal standard.
Appeals Court Reverses Convictions for Jury Tampering on Double Jeopardy Grounds - 10 Years Slashed Off Prison Sentence - Immediate Release Ordered
Arcadia, FL (August 2, 2019) - Our client, was convicted of three counts of attempted tampering with jurors. The judge sentenced him to three 5-year consecutive terms of imprisonment for a total of 15-years behind bars. After losing his appeal, Gammage hired The Law Offices of Robert David Malove to conduct a review to determine what, if any, grounds existed for him to file a motion for post-conviction relief pursuant to Rule 3.850. After reviewing our client's entire file, we arranged a secure, legal call to speak to him in prison. We determined that the statute had been misapplied by the State Attorney and that Mr. Gammage should have only been convicted of one, not three counts. The trial court rejected our argument and summarily denied our 3.850 motion without an evidentiary hearing. We appealed.
In granting our appeal, Florida's Second District Court of Appeal reversed the trial court's denial of the 3.850 motion to vacate the sentence. Specifically, the court reversed two of Gammage's three convictions and remanded his case back to the trial court to resentence him using a corrected scoresheet. In other words, Gammage's prison sentence dropped from 15-years to 5-years.
The District Court of Appeal decided an issue of first impression in determining whether a defendant could be convicted of each separate act of tampering with individual jurors or whether tampering with any juror - whether one or more - constitutes the completed offense. After a detailed analysis of the "a/any" unit of prosecution rule, the court determined that the language of the statute supported a determination that the legislature intended only one prosecution regardless of the number of jurors involved.
Appeals Court Says Trial Court Erred in Summarily Denying 3.850 Motion. Case Reversed & Remanded for Evidentiary Hearing
Client retained The Law Office of Robert Malove to review his case and determine if he had any meritorious claims that can be raised in a 3.850 motion. After reviewing his entire case file, we filed a Rule 3.850 motion that contained several claims of ineffective assistance of counsel. The claim that was most significant was that our client was offered a plea of 5-years in prison from the Assistant State Attorney.
After receiving this offer, his trial attorney advised our client about the plea. After being advised about the plea, our client (like most criminal defendant’s) consulted his attorney about this offer. He looked to him for advice as to whether he should accept or reject the plea offer from the state. His attorney advised him to reject the plea offer. His attorney reasoning to reject the offer was that in his opinion the only crimes the State could prove were either battery or culpable negligence. Being that both of these charges are only misdemeanors and are subject to a maximum term of one year in the county jail, he advised the client to reject the offer. Relying on the advice of counsel, our client rejected the plea, proceeded to trial and unfortunately was found guilty of attempted second degree murder and was sentenced to 12-years in prison.
After filing the 3.850 motion the State was issued a show cause order and filed a response. The trial court allowed us to file a reply, and after taking all of the filings into consideration the trial court issued an order denying the Rule 3.850 motion. We appealed.
On appeal we argued that the trial court erred in summarily denying the 3850 motion by finding that counsel’s advice to reject a favorable plea offer was a reasonable strategic decision without an evidentiary hearing. Florida's 4th District Court of Appeal, located in West Palm Beach, Florida, reversed and remanded the summary denial and ordered an evidentiary hearing after finding the following:
In Ground One of his Rule 3.850 motion, Mook claimed that his defense counsel was ineffective for misadvising him to reject a plea offer of five years in prison. He alleged that counsel told him the State could prove only a misdemeanor (battery or culpable negligence) because it could not prove premeditation or intent to kill. Mook alleged that counsel’s advice 2 to reject the plea was unreasonable under the facts and circumstances of the case because he failed to properly evaluate the likelihood of a conviction for attempted second-degree murder, which does not require proof of premeditation or intent to kill. See Brice v. State, 162 So. 3d 81, 82–83 (Fla. 4th DCA 2014) (reversing the summary denial of a Rule 3.850 motion and remanding for an evidentiary hearing on a claim that counsel’s advice to reject a plea offer was unreasonable because he failed to properly evaluate the strength of the State’s case and explain the likelihood of a conviction). Mook also alleged a reasonable probability that, but for counsel’s advice, he would have accepted the plea and it would have been entered without the State withdrawing it or the judge refusing to accept it. See Alcorn v. State, 121 So. 3d 419, 430 (Fla. 2013). Mook’s claim of ineffective assistance of counsel was sufficiently pled, and the trial court erred by finding without an evidentiary hearing that counsel’s advice to reject the plea offer was a reasonable strategic decision. See, e.g., Washington v. State, 187 So. 3d 244 (Fla. 4th DCA 2015). We therefore reverse the summary denial of Ground One and remand for an evidentiary hearing. We affirm the summary denial of Mook’s other grounds for relief without further discussion. Affirmed in part, Reversed in part, and Remanded.
Luckily for Mr. Mook, he hired the experienced Law Office of Robert Malove to represent him in a motion for post-conviction relief. Since the appellate court reversed the trial court, there will be a hearing conducted to determine whether Mr. Mook’s attorney was ineffective. Stay tuned to see if Mr. Mook prevails.
Appellate Court Orders New Sentencing in DUI Manslaughter Case Due to Judge's Improper Comments
Daytona Beach, FL (March 27, 2020) - Florida's 5th DCA issued an opinion ordering resentencing before a different judge.
At the sentencing hearing, my client apologized to the victims’ families, accepted responsibility for her actions, and was remorseful. The judge, however, denied the motion for downward departure.
The judge said that he did not fault my client for pleading not guilty, for arguing the motion to suppress or for taking her case to trial. But the judge also said this: “Those are all things that you are entitled to, but it sure seems inconsistent with coming in here and telling me that you take full responsibility for all of this.”
“Again, I don’t fault you for exercising your constitutional rights,” the judge said. “But it’s inconsistent with throwing your hands up and bellying up to the bar and saying, ‘This is my bad.’ And this has been going on for three years. And now you’re taking full responsibility when you’re looking at a lowest permissible sentence, without a downward departure, of almost 15 years in prison.”
On appeal, we argued that the judge “impermissibly equated her exercise of her constitutional rights as a lack of remorse.” The appellate judges agreed.
“By doing so, the trial court used [my client’s] constitutionally protected actions against her in sentencing. This was not proper consideration.”
District Court of Appeal Remands for Re-Sentencing After Finding Appellate Counsel Ineffective
The defendant entered an open plea in Okaloosa County, Florida, and was sentenced to the lowest permissible sentence of 153-months in prison. The defendant filed a Notice of Appeal and the Office of the Public Defender was ordered to represent him. After reviewing the record, the Assistant Public Defender filed an Anders brief. After he received a copy of the Anders brief, the defendant dismissed his appeal because he believed that his Assistant Public Defender would not have filed an Anders brief had there been any meritorious issue to argue.
The defendant then hired local counsel who filed Rule 3.850 motion on The defendant’s behalf. After an evidentiary hearing the Rule 3.850 motion was denied, the defendant retained The Law Offices of Robert David Malove to review his case and appeal the denial of his Rule 3.850 motion. After reviewing his Rule 3.850 motion the firm recognized that all of our client’s previous attorneys overlooked the fact that the defendant’s scoresheet contained a substantial error that doubled his sentencing points.
The Law Offices of Robert David Malove filed a petition for ineffective assistance of appellate counsel and argued that appellate counsel was ineffective for failing to file a Rule 3.800 (b)(2) motion to correct the sentencing error. We pointed out to the appellate court that the client’s correct lowest permissible sentence was 66-months, not 153! We also argued that because the trial judge sentenced my client to the lowest permissible sentence, and because there was no statement made by the judge that he would have imposed the same sentence absent the scoresheet error, appellate counsel was ineffective for failing to raise this issue on direct appeal.
The First District Court of Appeal, in Tallahassee, in a written opinion, found the error was not harmless, and determined that my client's appellate counsel was ineffective. The court vacated the client's sentence and remanded the case back to the trial court for a new sentencing proceeding using a corrected scoresheet.
This case is a perfect example of how an experienced and knowledgeable post-conviction and appellate attorney can make a difference in the outcome of a case and catch mistakes that were made. My client was represented by a trial, an appellate, and a post-conviction attorney and none of them, not even the prosecutor or the judge, caught the obvious error.
