Whenever a criminal defendant appeals a Judge’s ruling not to grant a mistrial because of an inappropriate statement made by a state attorney, the State of Florida bears the burden of showing to the appellate court that there exists no reasonable probability that the comment and/or remark had any effect on the jury verdict. Essentially the State of Florida must establish that the evidence of guilt against the appellant was so substantial that he would have been convicted even without the statement.
A fundamental rule of criminal sentencing is that, when the defendant is sentenced by the court, he must be sentenced according to the laws that were effrective at the moment in time the criminal offense transpired. For example, let us say that an individual commited a crime that, at the time, was punishable by a maximum of one year in Florida state prison. 6 months after the crime was committed, but before the trial, the legislature passed a new law which would make that same crime carry a minimum mandator punishment of three years imprisonment. The maximum possible penality for the defendant would be 1 year in prison. Creating a punishment that is more severe and making the punishment retroactive would be considered an Ex Post Facto law. Ex Post Facto laws are not permitted under Article 1, Section 9, Clause 3 of the U.S. Constitution. While the opinion below may look like a hollow victory, it is actually is a good example of our appellate courts functioning properly & upholding the Constitution.
In the matter of Massengale vs. State the District Court upheld defendant’s convictions for DUI manslaughter, driving with a license suspended or revoked, DUI causing damage to a person or property, and DUI causing serious bodily injury. The District Court reversed the $100 fine at issue & remanded to the circuit court with instructions to remove it from the judgment.
On appeal defendant contended that the circuit court was in error by denying a motion for mistrial after the prosecutor improperly commented in opening statement regarding the defendant’s right not to tesitfy. The 1st District Court of Appeal concluded that the state met the burder on proof showing there was not a reasonable possibility that that error affected the jury’s verdict.
Defendant also asserted error in the circuit court’s assessment of mandator cost of prosecution of $100 under Florida Statute 938.27(8). The prosecution conceded error due to the fact that the offenses occurred prior to the statute was effective.For more information on Criminal Lawyer Miami FL , Criminal Attorney Miami FL and Probation Attorney Miami FL please contact us at: The Law Offices of Rosenberg and Dye 201 South Biscayne Boulevard
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