On Point

State v. Laura M., 2011AP2828, District 1, 3/27/12

court of appeals decision(1-judge, not for publication); for Laura M.: Russell D. Bohach; case activity

The trial court properly exercised discretion in finding Laura M. in default when she failed to appear for trial on TPR grounds. A father of one of her children, Padrein K., called counsel to report that he had been stabbed and that Laura M.

Question Presented (from Cert Petition): 

Whether the Florida Supreme Court has decided an important federal question in a way that conflicts with the established Fourth Amendment precedent of this Court by holding that an alert by a well-trained narcotics detection dog certified to detect illegal contraband is insufficient to establish probable cause for the search of a vehicle?

Docket

Florida supreme court decision (71 So.3d 756)

Scotusblog page

The Dog Whisperer might want to get its own Supreme Court correspondent.

State v. Scott P. Wojcik, 2011AP2568-CR, District 2, 3/21/12

court of appeals decision (1-judge, not for publication); for Wojcik: Christopher Lee Wiesmueller; case activity

90-day jail sentence for OWI-2nd (minimum 0f 5 days, maximum of 6 months) upheld as proper exercise of discretion. Trial court considered as aggravators recentness of prior OWI conviction (2008) and his seeming level of impairment (stumbled on getting out of car); and stressed deterrent purpose of sentence.

State v. Traci L. Scott, 2011AP2115-CR, District 2, 3/21/12

court of appeals decision (1-judge, not for publication); for Scott: Rex Anderegg; case activity

The court rejects Scott’s challenge to a prior OWI conviction, concluding that she aware of the range of punishments, dangers of self-representation, etc. General test recited:

¶2        A defendant facing an enhanced sentence based on a prior conviction may only collaterally attack that prior conviction based on the denial of the constitutional right to counsel.  

Lafler v. Anthony Cooper, USSC No. 10-209, 3/21/12, vacating and remanding, 376 Fed. Appx. 563 (6th Cir. 2010); prior post; companion case: Missouri v. Frye, 10-444

Cooper turned down a favorable plea bargain and instead went to trial, after his attorney erroneously told him the prosecution would be unable to establish intent to kill because the victim had been shot below the waist.

United States Supreme Court decision, vacating and remanding, 311 S.W.2d 350 (Mo. App. W.D. 2010); prior post; companion case: Lafler v. Cooper, 10-209

Counsel – Effective Assistance – Plea Bargaining 

Counsel’s failure to communicate to Frye a favorable plea bargain offer from the prosecutor was deficient performance under 6th amendment analysis of effective assistance of counsel.

Luis Mariano Martinez v. Ryan, USSC No. 10-1001, 3/20/12, reversing and remanding, 623 F.3d 731 (9th Cir. 2011)

Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.

State v. Heidi L. Fleischmann, 2011AP2558-CR, District 3, 3/20/12

court of appeals decision (1-judge, not for publication); for Fleischmann: Sarvan Singh; case activity

The State satisfied its burden of proving that Fleischmann operation of a motor vehicle, in a parking lot adjacent to an empty business building, was on “premises held out to the public for use of their motor vehicles,” § 346.61.

¶8        Whether a premises is held out to the public depends on the owner’s intent.  

court of appeals decision; for Brereton: Matthew S. Pinix; case activity; prior post

Search & Seizure – GPS Device – Warrant 

Issues (Composed by On Point): 

Whether the police illegally seized Brereton’s car, so as to taint a subsequently issued warrant for installation of a GPS tracking device on it; or, whether tracking was unreasonable under U.S. v. Jones,

seventh circuit decision

Habeas Procedure – Application for Successive Attack 

Application to extend the deadline for permission to file a second collateral attack, § 28 U.s.C. 2244(b), is premature:

Now before the court are papers Maxy labels a motion, in which he informs us that he intends to file a second § 2244(b) application. Maxy explains that the application will be untimely because the prison limits his use of the copy machine,