subject: Defendant Wins Dui Manslaughter Appeal A Hollow Victory [print this page] When a criminal defendant appeals a Judge's ruling not granting a mistrial due to an improper statement by an assistant state attorney, the State has the burden of showing to the appellate court that there was no reasonable probability that the statement and/or remark affected the jury's verdict. Essentially the State of Florida is required to show that the evidence of guilt against the defendant was so overwhelming that the defendant would have been ultimately convicted even without the statement.
A fundamental rule of sentencing is that, at the time a defendant is sentenced, he must be sentenced in accordance with the law that were effrective at the time the crime happened. Hypothetically, let us assume that a defendant commited a crime that was punishable by a maximum of 1 year in prison. 6 months after the crime happened, but before the trial, the legislature passed a law making that same crime punishable by mandatory minimum punishment of 3 years imprisonment. The maximum possible penality for the defendant would be one year. Creating a punishment which is more severe and making the punishment retroactive would be considered an Ex Post Facto law. Ex Post Facto laws are not permitted by Article 1, Section 9, Clause 3 of the Constitution of the United States. So while the opinion below looks like a hollow victory, it is actually is a good example of our appellate courts functioning properly & upholding the Constitution.
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In the case of Massengale v. State of Florida the Court of Appeal upheld the defendant's convictions for manslaughter by DUI, driving with a license suspended and/or revoked, DUI causing damage to person or property, and DUI causing serious bodily injury. The Court of Appeal reversed the $100 fine assessed by the court and sent it back to the circuit court with instructions to remove it from the judgment.
The defendant argued that the trial court was in error when it denied defendant's motion for mistrial after the assistant state attorney made improper remarks in opening statement concerning defendant's right to remain silent. The Court of Appeal concluded that the State of Florida met its burden to show there was no reasonable possibility that that mistake affected the verdict.
Additionally, defendant asserted error in the trial court's imposition of mandator cost of prosecution of $100 under Florida Statute 938.27(8). The state conceded error due to the fact that the offenses occurred prior to the law became effective.
