Cicily Jones (not her real name) hired Jeffrey Garland on 2/26/15 to appeal her conviction for resisting without violence. The trial took place before Judge Yacucci in St. Lucie County.
Attorney Garland argued on appeal that the evidence was insufficient to prove the “lawful execution of legal duty”, which is an element of the charge. Fortunately, Jones hired Garland just after the guilty verdict was returned. Although Garland did not try the case, he was able to timely file a motion for judgment of acquittal within 10 days of the verdict. Garland raised the failure of proof issue, a matter which the trial lawyer failed to recognize or preserve.
The nut of the claim involved the State’s failure to introduce the arrest warrant into evidence. St. Lucie County deputies broke into Jones’ house without the arrest warrant which, they claimed, was issued out of Brevard County some three days earlier for failing to appear on a traffic case. The State
failed to obtain any such warrant and introduce it into evidence. Therefore, the evidence was insufficient to prove the “legal duty”. D.W. v. State, 40 So.3d 782 (Fla. 3d DCA 2010); D.A. v. State,
636 So.2d 863 (Fla. 3d DCA 1994); Smith v. State, 546 So.2d 459 (Fla. 4th DCA 1989).
Garland argued that, alternatively, the deputies did not “lawfully execute” the legal duty, because they failed to knock and announce before entering the dwelling in violation of §901.19(1), Fla. Stat. See Benefield v. State, 160 So.2d 706 (Fla. 1964).
The appeal tribunal reversed Jones’ conviction on 5/24/16, and remanded. The reversal was discussed in a previous blog posting.
Attorney Garland filed a motion to dismiss asserting that double jeopardy prevented a retrial. In essence, Jones had already been tried, and the evidence was insufficient, as found by the appeal tribunal in reversing the case.
The State elected to nolle prosse the charge just before the case was to be called up for trial on 9/13/16.
The criminal rules allow a motion for judgment of acquittal (JOA) to be made up to 10 days after receipt of a verdict. Retaining an appeal lawyer immediately after an adverse verdict can be a very beneficial thing. In this case, the appeal lawyer spotted two issues which had not been preserved for appeal. The St. Lucie County appeals attorney was able to present the arguments to the trial court, so that they could then be pursued on appeal.