New and Noteworthy

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  • Fla. Police Benevolent Ass’n. v. City of Tallahassee, — So. 3d —, 2021 WL 1257869, No. 1D20-2193 (Fla. Dist. Ct. App. Apr. 6, 2021).

    Appellants—two law enforcement officers who used deadly force as part of separate incidents that resulted in the deaths of the individuals suspected of committing crimes—appealed from the trial court’s order and judgment declaring that a law enforcement officer acting in their official capacity could not be a “victim” for purposes of Art. I, §16, the state’s constitutional victims’ rights amendment, and directing the City of Tallahassee to disclose to the public records that would reveal the officers’ identities. On de novo review, the Florida District Court of Appeal reversed the trial court’s order and judgment, holding that: (1) an officer “meets the definition of a crime victim under Art. I, §16 when a crime suspect threatens the officer with deadly force, placing the officer in fear for his life”; (2) constitutional victims’ rights protections attach before criminal proceedings begin; and (3) identifying information about the officers was exempt from disclosure under public records laws. The court began its analysis by considering the interplay between Art. I, §16 and Art. I, §24(a), which protects the public’s right to access public records “except with respect to records exempted under this section or specifically made confidential by this Constitution.” The court explained that there was no need to limit the reach of Art. I, §16 because “[n]othing in article I, section 16 excludes law enforcement officers—or other government employees—from the protections granted crime victims . . . [a]nd no language in either article I, section 16 or article I, section 24(a) suggests that public records related to government employees ordinarily subject to disclosure are not entitled to confidential treatment under article I, section 16 when a government employee becomes a crime victim.” The court then concluded that for these reasons, the officers had the right to seek confidential treatment of public records that contained information that could be used to locate or harass them. The court noted that its conclusion would not prevent the public from “hold[ing] law enforcement officers accountable for any misconduct” as maintaining the confidentiality of identifying and locating information would not halt or prevent internal affairs or grand jury investigations. Further, if the officer is charged for their conduct, “then the officer would forfeit the protections under article I, section 16.” The court next rejected the trial court’s holding that a criminal proceeding must have commenced before the protections of Art. I, §16 apply. The court pointed to the plain language of Art. I, §16, which provides that “every victim is entitled to the enumerated rights, beginning at the time of his or her victimization” as well as interpretive case law in holding that a victim’s rights attach at the time of victimization. Lastly, the court held that the trial court erred in concluding that the officer’s names were not entitled to confidential treatment under Art. I, §16, which provides for, inter alia, “the [victim’s] right to prevent the disclosure of information or records that could be used to locate or harass the victim or the victim’s family, or which could disclose confidential or privileged information of the victim.” The court concluded that “information…that could be used to locate or harass the victim or the victim’s family” must include records that could reveal the victim’s name or identity, as “a crime victim’s name [is] the key that opens the door to locating the victim” given the realities of “multiple online search resources available to seek out information about individuals when the person’s name is known.” For these reasons, the court reversed the trial court’s order.

  • E.H. v. Slayton, --- P.3d ---, No. CR-19-0118-PR, 2020 WL 4459283 (Ariz., Aug. 4, 2020)

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    Defendants pled guilty to charges of child endangerment or child abuse in connection with the death of a six-year old victim. Pursuant to the plea agreement, defendants agreed to pay restitution capped at $500,000 to the deceased victim’s sibling, who is also a victim under state law. The surviving child-victim petitioned the Arizona Court of Appeals for special action review of two issues: (1) the trial court’s order upholding the restitution cap; and (2) the trial court’s requirement that the child-victim’s attorney must sit in the gallery, instead of the “well” of the courtroom, unless invited to step into the well to address the court. After the court of appeals declined to accept jurisdiction, the child-victim petitioned the Arizona Supreme Court for review. The Arizona Supreme Court granted review and reversed. First, the court rejected the State’s argument that the case was not ripe for review unless and until the trial court denies a restitution claim that exceeds the cap. The court determined that the State “effectively waived” the child-victim’s right to full restitution by agreeing to a restitution cap, and this improper waiver of the victim’s right is an injury that is ripe for review. Second, the court concluded that capping restitution in a plea agreement without the victim’s consent violates the victim’s right to full restitution. In reaching its holding, the court concluded that due process does not require the imposition of a restitution cap to ensure a defendant’s guilty plea is voluntarily and intelligently made. The court overruled three former decisions—State v. Lukens, State v. Phillips and State v. Crowder—that stood for the principle that a voluntary and intelligent plea requires defendant to know a specific or maximum amount of restitution at the time of the plea. The court determined that the Fourteenth Amendment does not require the imposition of a restitution cap, and a restitution cap without the victim’s consent is ultimately illusory and unenforceable. Third, the court concluded that a victim’s attorney “should presumptively be permitted to sit before the bar”—inside the well—when the victim’s rights are at issue in a proceeding. The court stated that this presumption may be overcome by certain concerns, such as the trial court’s need to manage seating to allow for physical distancing during a pandemic. The court cautioned, “[a]t all times, however, a trial court’s discretion to address seating arrangements must honor a victim’s constitutional right to be present and heard … and to be treated with fairness, dignity, and respect.” For these and other reasons, the court vacated the restitution cap. The court remanded with directions to the trial court to allow defendants to move to withdraw from their plea agreements upon a showing that the restitution cap was a relevant and material part of their decisions to plead guilty.

  • State v. Reed, 456 P.3d 453 (Ariz. 2020)

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    Defendant was convicted of voyeurism and ordered to pay restitution. Defendant appealed the restitution order, but died while the appeal was pending. The court of appeals dismissed the appeal pursuant to Arizona statute, leaving the restitution order intact and enforceable against defendant’s estate, and his estate appealed. The court explained that in 2014, Arizona enacted a statute, § 13-106, which eliminated the abatement ab initio doctrine and required the court to dismiss a pending appeal or post-conviction relief proceeding upon a defendant’s death. As further described by the court, the approach adopted by the legislature was inconsistent with Arizona courts’ adherence to the abatement ab initio doctrine when a convicted defendant dies pending appeal of the conviction and sentence. Defendant’s estate argued that in enacting this statute the legislature infringed upon the court’s appellate jurisdiction and usurped its constitutionally guaranteed rulemaking authority, thereby violating separation of powers principles and rendering the provision unconstitutional. The court explained that the Arizona Constitution vests the Arizona Supreme Court with authority to make rules relating to the procedural matters in any court; the legislature has authority to enact substantive laws, but may also enact procedural laws to define, implement, preserve, and protect the rights guaranteed to victims by the Victims’ Bill of Rights (“VBR”), as well as procedural laws if they supplement rather than conflict with court procedures. The court noted that in the event of a conflict, court procedure prevails. The court found that § 13-106(A), requiring the dismissal of any pending appeal or postconviction proceeding upon a defendant’s death, was a procedural law, because the disposition of an appeal is a matter of court procedure. Consequently, the statute is a procedural rule and violates separation of powers principles, unless the VBR authorized its enactment. The court found that the legislature’s rulemaking authority under the VBR is restricted, and extends only so far as necessary to protect rights created by the VBR that are “unique and peculiar” to crime victims. Therefore, the court concluded that the VBR did not authorize the enactment of § 13-106(A) because the statute does not affect rights unique and specific to victims. The state argued that it affects victims’ rights to a speedy trial or disposition and prompt and final conclusion of the case after conviction and sentence, as established by the VBR. But the court stated that this right “neither creates a right nor defines a right peculiar and unique to victims,” and thus could not serve as a source of authority for the legislature. The state also relied on the victim’s right to be treated with fairness, respect and dignity. However, the court found that this right “concerns treatment of victims in the criminal justice process; it does not create rights to any particular disposition.” The court did find, however, that the victim’s right to prompt restitution is unique and peculiar to victims. However, “this right contemplates the entry of a restitution order that is subject to appellate scrutiny, which may result in reversal or modification of the order. Because [this right] does not guarantee victims any particular appellate disposition, § 13-106(A)’s required disposition does not affect a victim’s right to payment of prompt restitution.” The court also was not convinced that the legislature intended to exercise its VBR-granted rulemaking authority in enacting the statute. As to § 13-106(B), which states that a defendant’s death does not abate the defendant’s criminal conviction or sentence of imprisonment or any restitution, fine, or assessment imposed by the sentencing court, the court reached a different conclusion. “Whether a conviction, sentence, restitution order, or fine should stand or abate when a convicted defendant dies pending appeal is a policy matter affecting competing interests and rights held by victims, the state, the defendant’s family, and society. The legislature’s abolition of the abatement ab initio doctrine regulates the primacy of those interests and rights, making [it] a substantive law.” Accordingly, the court determined that whether the restitution amount is correct remains a controversy with a real-world impact on defendant’s wife. The victim’s rights would not be infringed by a decision on the merits, as the court found that the victim never possessed a right to avoid such a decision. The court vacated the court of appeals’ opinion and remanded for a decision on the merits.

  • In re J.H., 260 Cal. Rptr. 3d 847 (Cal. Ct. App. 2020)

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    Juvenile defendant was ordered to pay restitution as part of a delinquency adjudication. After his wardship terminated and writs of execution were issued for the unpaid restitution balance, the superior court granted defendant’s motion to quash, reasoning that the restitution order was no longer valid because the 10-year enforcement period for money judgments had expired without renewal of the restitution order. The state appealed. The court explained that California’s Constitution guarantees crime victims the right to restitution, and a California statute specifically exempts restitution orders issued against adults from the statutory requirement that money judgments will become unenforceable 10 years after the date of entry. However, the statute is silent as to juvenile restitution orders. Looking to legislative intent, and in particular the intent to compensate all victims of crime who suffer direct economic loss, the court found that the legislature intended juvenile restitution orders to be enforceable like their adult counterparts. “By enacting [the relevant juvenile restitution statute] and expressly linking enforcement of juvenile restitution orders to procedures for enforcing adult restitution orders, the Legislature intended to continue the parallel treatment of criminal and juvenile restitution. This means every relevant portion of Penal Code section 1214 [relating to enforcement of restitution orders] applies to the enforcement of delinquency restitution orders, including [that the section that governs enforceability and renewal of money judgment] shall not apply to certain statutory restitution fines and orders … .” Thus, the court concluded that although a restitution order in a delinquency case is enforceable like a money judgment, it is not a money judgment for the purpose of applying the 10-year period of enforceability of money judgments. The order was reversed.

  • People v. Turner, No. D075237, 2020 WL 828701 (Cal. Ct. App. Feb. 20, 2020)

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    Defendant pleaded guilty to a charge of felony welfare fraud and, as a condition of probation, was ordered to pay nearly $5,000 of victim restitution to the state. She filed a motion to have her felony conviction reduced to a misdemeanor and a discretionary petition to have the charge dismissed or expunged. The trial court denied the requests because she had not satisfied any of her victim restitution obligations. Defendant appealed, contending that she lacked the financial means to make the court-mandated victim restitution payments and that the order denying her requests because of her failure to pay victim restitution deprived her of certain statutory rights and benefits available to more affluent criminal defendants, thereby violation her due process and equal protection rights. The court began by explaining that the trial court has broad discretion to reduce the category of crime of which defendant was convicted to a misdemeanor. However, the court explained that the Supreme Court has articulated factors relevant to the exercise of discretion, which include the nature and circumstances of the offense, the defendant’s appreciation of and attitude toward the offense, or her traits of character as evidenced by her behavior and demeanor at the trial. Independently, a defendant may petition the court to set aside a guilty plea, which may be done: (1) when a defendant has fulfilled the conditions of probation for the entire period of probation; (2) has been discharged prior to the termination of the period of probation; or (3) in any other case in which a court in its discretion and the interests of justice determines that a defendant should be granted the relief available. Defendant sought relief solely under the third, discretionary, factor. Relying on precedent, the court denied defendant relief. The court concluded that the rehabilitative purposes of probation, and the constitutional right of victims to restitution, would be ill-served if the defendant could have her conviction expunged without having made up for the victim’s losses. The court continued that there was no equal protection violation simply because the defendant was not wealthy enough to have paid her court-ordered restitution in full while she was on probation. “It would be anomalous indeed if a provision designed to equalize the treatment of rich and poor defendants were applied in a way that only shifted the inequality to the other extreme. Equal protection means only that the defendant can have her conviction expunged, the same as the wealthier defendant … if and when she pays restitution to the victim, in full.” Further, due process was not implicated because the nature and extent of the individual interest affected in an expungement case (the desire for a clean criminal record) did not resemble other instances in which a due process violation has been recognized (e.g., where there has been a complete loss of personal liberty). In addition, defendant’s desire to reduce or expunge her felony conviction is not a persuasive argument that her rights would be severely impaired by the denial order. Moreover, allowing courts to withhold expungement as inducement to ensuring payment of restitution bears a rational relationship to the primary purpose of victim restitution—fulfilling the voter-enacted constitutional provision requiring that defendants make victims whole. The order was affirmed.