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When a defendant appeals a Judge's decision not to grant a mistrial for an inappropriate statement made by an assistant state attorney, the State of Florida has the burden of showing to the court of appeal that there exists no reasonable probability that the statement or remark affected the jury verdict. Basically the State of Florida must establish that the proof against the defendant was so overwhelming that the defendant would have been ultimately convicted even without the comment.  A fundamental principal of criminal sentencing is that, when a defendant is sentenced by the court, the defendant is required to be sentenced according to the law that were effrective at the moment in time the crime happened. Hypothetically, let's say that an individual commited a criminal offense that was punishable by a maximum of one year in state prison. Six months after the criminal offense occurred, but prior to the criminal trial, the legislature passed a new law which made that same criminal offense carry a minimum mandator punishment of 3 years in prison. The maximum possible penality for that defendant would be 1 year in prison. 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 under Article 1, Section 9, Clause 3 of the Constitution of the United States. So while the opinion below may look like a shallow victory, it is actually is a great example of our appellate courts functioning properly & upholding the Constitution. In the matter of Massengale vs. State the Court of Appeal affirmed the defendant's convictions for DUI manslaughter, driving with a license suspended and/or revoked, DUI causing damage to a person or to property, and DUI causing serious bodily injury. The Court of Appeal reversed the one hundred dollar fine assessed by the court and sent it back to the trial court with instructions to strike it from the judgment. Defendant argued that the circuit court erred by denying the defendant's motion for mistrial after the state attorney made improper remarks in opening statement concerning the defendant's right to remain silent. The Appellate Court concluded that the state met the burder on proof showing there was no reasonable possibility that the mistake affected the jury's verdict. Additionally, the defendant asserted error in the trial court's imposition of mandator cost of prosecution of $100 under Florida Statute 938.27(8). The State of Florida conceded error due to the fact that the incident occurred prior to the law was effective.For further information on Dui Lawyer Miami FL , Criminal Lawyer Miami FL and Probation Violation Miami FL please contact us at: The Law Offices of Rosenberg and Dye 201 South Biscayne Boulevard 28th Floor Miami, FL 33131 (305)429-3285
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