Defendant Prevails in DUI Appeal Proves to be a Hollow Win

When a defendant appeals a Judge's order not granting a mistrial due to an inappropriate remark made by an assistant state attorney, the State bears the burden of showing to the court of appeal that there exists no reasonable probability that the statement or remark affected the verdict. Basically the State must show that the evidence against the appellant was so substantial that he or she would have been ultimately convicted even without the remark.

A basic principal of sentencing is that, when the defendant is sentenced by the court, he must be sentenced according to the laws that were in place at the time the crime transpired. For example, let's say that an individual commited a crime that was punishable by a maximum of one year in Florida state prison. Six months after the criminal offense happened, but before the trial, the legislature passed a new law which made that same crime punishable by mandatory minimum punishment of 3 years in jail. The maximum possible penality for the defendant would be 1 year incarceration. Creating a criminal sanction that is more severe & making the punishment retroactive would be considered an Ex Post Facto law. Ex Post Facto laws are prohibited by Article 1, Section 9, Clause 3 of the U.S. Constitution. While the opinion below looks like a shallow victory, it is a good example of our courts functioning properly and upholding the United States Constitution.

In the case of Massengale v. State of Florida the Court of Appeal affirmed the defendant's convictions for manslaughter by DUI, driving with license suspended and/or revoked, DUI causing damage to a person or property, and DUI causing serious bodily injury. The First District Court of Appeal reversed the $100 fine assessed by the court and sent it back to the trial court with directions to strike it from the judgment.

On appeal the defendant argued that the trial court erred when it denied defendant's motion for mistrial after the prosecutor improperly commented in opening statement concerning defendant's right not to tesitfy. The First 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.

On appeal, Defendant also asserted error in the circuit court's imposition of one hundred dollars for cost of prosecution under section 938.27(8), Florida Statutes (2008). The state conceded the error because the incident occurred prior to the statute became effective.For additional information on Criminal Attorney Miami FL , Criminal Lawyer Miami FL and Violation of Probation Miami FL please contact us at: The Law Offices of Rosenberg and Dye 201 South Biscayne Boulevard

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