Many folks familiar with the criminal “justice” system are under the mistaken impression that, should something go wrong with their case, they can always appeal the issue later. There is a sliver of truth to that, but I wouldn’t want to get anyone’s hopes up that an appeal somehow fixes the injustice suffered. It doesn’t work that way. To prove this little known fact to you, we’re going to take a look at another case involving the brilliant Judge Charles Harris from the Fifth District Court of Appeals.
The case for today is Jenkins v. State, 747 So.2d 997 (Fla. 5th DCA 1999). For purposes of our discussion, here’s a USA Today version of the facts. Jenkins was convicted of armed robbery with a weapon, all for snatching a purse while he was riding by as a passenger in a car. In Florida, snatching a purse becomes extremely serious if the robber is armed with a weapon. For Jenkins, he was convicted of “carrying” a weapon–a car. Florida statutes enhance a robbery “if in the course of committing the robbery the offender carried a weapon.”
The issue on appeal for Jenkins is whether or not he “carried” a weapon (car) when he snatched the purse. This is not a question for the jury, this question is a matter of law, in that, can a car “ever” be a weapon carried in a robbery? Common sense tells us that Jenkins did not “carry” the vehicle, but rather, the vehicle was merely his transportation to and from the robbery. Jenkins was a passenger. X-Men fans may argue that Jenkins was a guinea pig in some military black ops project which enhanced his strength to the point that he could actually “carry” a vehicle and swing it around. But that’s not the case here. Jenkins was merely a passenger in the vehicle, and snatched a purse as he rode by. However, because Jenkins’ robbery was enhanced by “carrying” a weapon, it became a first degree felony, for which Jenkins received a 20 year prison sentence. Ouch.
Jenkins knew he wasn’t carrying this car X-Men style, and as such, he was hoping the appellate court would correct this improper enhancement. Unfortunately, several appellate judges (the majority) refused to address the issue of whether or not Jenkins was “carrying” the car he was riding in–because that issue was not argued by his defense attorney on appeal. As such, the majority court upheld Jenkins’ conviction. Judge Harris finds this position ridiculous, reasoning that:
“Some argue that it is unfair to a trial court to reverse, even on a preserved issue, if the particular reason relied on for reversal was not argued below. I believe our role on appeal is to be a court of justice charged with finding ‘the law’ and not a legal clinic committed to salve the wounded feelings of a trial court which is reversed because it was misled by an inappropriate argument or no argument at all. We should seek ‘the law’ based on the issue and the record”. Id at 1000.
For Jenkins, the appellate court refused to seek ‘the law’ in this case. The appellate court refused to even attempt to figure it out, because the issue was not brought up by Jenkins’ attorney. Judge Harris correctly states in his dissent that “the issue in this case is whether an automobile can ever be a weapon under the provisions of section 812.13(2)(b), Florida Statutes, and, if so, whether the State proved that an automobile was a weapon based on the ‘purpose’ of its use in this purse snatching incident.” Id at 999. But, as you now know, the appeals court refused to address this issue–so Jenkins gets to serve 20 years prison, all because his attorney didn’t argue the issue.
The Fifth District Court of Appeals should have addressed the “carry” issue brought up by Judge Harris, and the appellate court should seek justice as part of its role. The refusal of our appeals courts to seek justice, even when one of their own judge’s points it out to them, should concern we citizens. As a side note, several court decisions have sided with Judge Harris’ interpretation of the word “carry”, in finding that the ordinary meaning of “carry” does not include an automobile. Judge Harris was right, as usual, and current case law would have overturned Jenkins conviction. Simply deciding the definition of the term “carry” would have reduced Jenkins’ prison sentence drastically. But procedures being as they are, we tax payers must foot the bill for a lengthy prison term all because some defense attorney didn’t catch an issue.