Hill v. State
| Decision Date | 21 February 1997 |
| Docket Number | No. 95-00448,95-00448 |
| Citation | 696 So.2d 798 |
| Parties | 22 Fla. L. Weekly D484 Johnnie E. HILL, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, Bartow, and Michael J.P. Baker, Assistant Public Defender, Bartow, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Deborah F. Hogge, Assistant Attorney General, Tampa, for Appellee.
Johnnie Hill appeals judgments and sentences for robbery with a firearm and carjacking. He raises three issues on appeal. We find merit only in his claim that a public defender's lien was improperly imposed against him without notice of his right to challenge the amount of the lien, as required by Florida Rule of Criminal Procedure 3.720(d)(1). We therefore strike the lien. The trial court may again impose the lien upon proper notice. We affirm the judgments and sentences in all other respects. We join in the certified question in the concurring opinion.
Affirmed; lien stricken.
I agree with the majority's opinion. Although I would not reverse this case, I concur separately to discuss the jury selection issue and to submit two certified questions from this panel to the supreme court.
In Coney v. State, 653 So.2d 1009, 1013 (Fla.), cert. denied, --- U.S. ----, 116 S.Ct. 315, 133 L.Ed.2d 218 (1995), the supreme court, announcing a prospective clarification of Florida Rule of Criminal Procedure 3.180(a), held that a defendant must be "physically present at the immediate site where pretrial juror challenges are exercised," unless the defendant waives this right. It is not clear when the supreme court "announced" this prospective change in the law, or by what procedure a defendant may raise an unpreserved Coney issue. Based on the law, however, I conclude that Coney was announced before Mr. Hill's trial, but that he must raise this unpreserved Coney issue in a postconviction motion filed pursuant to rule 3.850. The two questions that I certify to the supreme court on behalf of the entire panel are:
I. ON WHAT DATE WAS THE CONEY DECISION ANNOUNCED?
II. IF A CONEY ISSUE IS NOT PRESERVED AT TRIAL, MUST A PRISONER FILE A POSTCONVICTION MOTION ALLEGING UNDER OATH THAT HE OR SHE WOULD NOT HAVE EXERCISED PEREMPTORY CHALLENGES IN THE SAME MANNER AS HIS OR HER ATTORNEY?
The state alleged that Mr. Hill committed robbery with a firearm and carjacking. The jury convicted him of these charges. The record contains nothing to suggest that he was prejudiced by any aspect of his trial. Nevertheless, the opinion in Coney announcing a prospective change in the law was issued on Thursday, January 5, 1995. This case was tried on the following Wednesday, January 11, 1995. The lawyers did not remind the trial judge that Mr. Hill should be present at the bench conference when they exercised peremptory challenge, and there is no question that he was absent from the conference. Both the assistant state attorney and Mr. Hill's attorney exercised peremptory challenges during the conference. Mr. Hill's attorney had peremptory challenges remaining at the end of the conference.
Coney does not apply to "cases which have been tried before the rule [was] announced." Boyett v. State, 688 So.2d 308 (Fla. 1996). 1 The critical issue in this case is whether this procedural rule was "announced" on January 5, 1995, when the supreme court issued Coney, or on April 27, 1995, when it denied rehearing. In certifying this issue to the supreme court, the Third District held that the rule in Coney applies only to cases tried after the denial of rehearing. Henderson v. State, 679 So.2d 805 (Fla. 3d DCA 1996). See also Cardali v. State, 21 Fla. L. Weekly D2375, --- So.2d ---- (Fla. 3d DCA Nov. 6, 1996) (). The Henderson court assumed that a rule is "announced" when the opinion becomes "final." It relied on a First District case, Caldwell v. State, 232 So.2d 427 (Fla. 1st DCA 1970), which involved an opinion that was withdrawn on rehearing. Although a decision of an appellate court is not enforceable between the parties to the appeal until it is "final," it is not clear to me that trial courts in other cases can ignore the holding in an issued opinion until a motion for rehearing is resolved. The First District has not relied upon Caldwell in this context and has at least assumed that Coney applied to a trial in late January 1995. See Mejia v. State, 675 So.2d 996 (Fla. 1st DCA 1996).
For purposes of Florida Rule of Criminal Procedure 3.850, this court has held that the rule in Hale v. State, 630 So.2d 521 (Fla.1993), cert. denied, 513 U.S. 909, 115 S.Ct. 278, 130 L.Ed.2d 195 (1994), was announced on October 14, 1993, when the opinion was issued, and not on February 9, 1994, when rehearing was denied. Sikes v. State, 683 So.2d 599 (Fla. 2d DCA 1996). Under circumstances where prospectivity was not a factor, both this court and the Fifth District applied Pope v. State, 561 So.2d 554 (Fla.1990), to "pipeline" cases when Pope was still pending on rehearing in the supreme court. See, e.g., Reed v. State, 565 So.2d 708 (Fla. 5th DCA 1990) (); Allen v. State, 561 So.2d 1339 (Fla. 2d DCA 1990) (same). Treating the date of issuance as the date of announcement for a prospective rule appears consistent with the discussion in Smith v. State, 598 So.2d 1063 (Fla.1992), but that opinion is not dispositive. In an analogous context, the supreme court chose the date its opinion in Martinez v. Scanlan, 582 So.2d 1167 (Fla.1991), was "filed" as the date when a statute was voided by that opinion. As such, I conclude that the Martinez opinion was "filed" before the date that rehearing was denied. See § 25.041(2), Fla.Stat. (1995).
I believe that the new procedural rule in Coney was "announced" on Thursday, January 5, 1995, when the supreme court issued its opinion. The rule was available to lawyers, judges and the public under the well-established procedures of the supreme court on that date. The rule was not modified on rehearing. If rehearing delayed implementation of a rule in other lawsuits, there would be a great incentive for parties to file frivolous motions for rehearing in an effort to affect the outcome in other cases. As a practical matter, determining whether a motion for rehearing has been filed and remains pending in the supreme court or a district court typically requires a telephone call to the clerk of the court. While lawyers are free to debate whether the supreme court is infallible, the simple truth is that few rules of law are significantly modified on rehearing by that court or this court. Thus, both legal and practical reasons suggest that a rule is "announced" when the opinion is issued except in the...
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...the issue for the first time in a collateral proceeding. In this regard, I agree with Judge Altenbernd's concurrence in Hill v. State, 696 So.2d 798, 800 (Fla. 2d DCA), decision approved, 700 So.2d 646 (Fla.1997), where he stated Although I conclude that Mr. Hill has the right to raise the ......
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