Exclusive: Ashley Toye Sentence Overturned, She’s Entitled to a New Sentencing in the Cash Feenz case

Ashley Toye mug shot

Ashley Toye was sentenced to life in prison at 17-years old for her involvement in the double murder of Jeffrey and Alexis Sosa in 2006. The facts of the case were troubling; one of the prosecutors who worked on the case told me it was the most troubling and disturbing cases she had worked on in a career of criminal law work. The Sosa’s were kidnapped, tortured, and ultimately killed by a would be rap group/gang under ringleader Kemar Johnston. Johnston allegedly forced Toye and others to participate in the torture, before the victims were taken to a remote area, shot, and their bodies set on fire. The State pursued the death penalty against Johnston, but he was given life in prison. Several other co-defendants agreed to cooperation plea deals to avoid mandatory life sentences on First Degree Felony Murder Charges.

Ms. Toye elected to take her chances at trial. She was pregnant with Johnston’s baby at the time of trial, and claimed that she only participated for fear of what he might have done to her. While she was acquitted of premeditated murder, she was convicted of first degree felony murder, which carries a mandatory life sentence. Life means life in Florida, and Ms. Toye was sentenced without the possibility of parole, in spite of the fact that she was a minor at the time of the offense: she got the same sentence as Mr. Johnston. The case garnered national attention, even a segment on the “Dr. Phil Show” discussing Ms. Toye’s case, specifically. I recommend checking out the episode, specifically for Dr. Phil’s discussion of the purpose and theory regarding juvenile sentencing.

Subsequently, the Supreme Court decided the landmark case of Miller v. Alabama, which found that mandatory life sentences are not permissible against minors under the Constitution. This entitled Toye to a new sentencing hearing. Florida subsequently passed a law governing sentences for minors, indicating that if they killed or intended the death of the victim, they still could be sentenced to life, with a 40 year minimum, albeit with the possibility of review after 25 years. Florida law also provided that if they did not kill or intend the death, there is no minimum sentence and that they are entitled to have their sentence reviewed after 15 years.

Ashley Toye’s most recent prison photo from DOC

Local attorney Stu Pepper took up the case for Toye, and represented her at the new sentencing. Pepper argued that the jury did not find that Toye had intended the death of the victims, in fact, she was acquitted of the premeditated murder charge. That would have required her to have a review after 15 years. Further he, he presented evidence of Toye’s efforts toward rehabilitation in prison and argued for a significantly reduced sentence. Also, the state conceded that it appeared that a term of years with a 15-year review was appropriate. However, the court chose to disregard those arguments, and sentenced Toye to life in prison, without the possibility of review for 25 years.

The case was again appealed, and the 2nd District Court eviscerated the lower court’s sentencing. The 2nd DCA found that Toye could not be sentenced to the greater possible sentence because there had not been a jury finding that she had killed or intended the death of the victims. The court overturned the sentence, and remanded it to the lower court for Ms. Toye to get a brand new sentencing hearing, and indicating that she should be sentenced under the subsection of the statute that does not have a mandatory minimum and allowing her a review after 15 years. Further, the DCA found that the court considered improper factors, so that when she comes back for re-sentencing, she will be entitled to have a new judge hold the new sentencing hearing. The State can appeal this ruling to the Supreme Court of Florida, but I would posit that is unlikely, when the sentencing prosecutor conceded that a life sentence probably wasn’t appropriate.

This is  huge win for the defense, as Ms. Toye will finally have a meaningful chance to not only avoid a life sentence, but to have her sentence reviewed after 15 years. The DCA opinion almost certainly will persuade the new judge that a life sentence is not appropriate- even the State did not argue for it the last time around. I spoke to Mr. Pepper, who was very happy that Ms. Toye will get a new shot at sentencing. Mr. Pepper says that after 7 years, Ms. Toye will be entitled to an early release from prison, which she deserves. Mr. Pepper complimented the appellate attorneys, Mariko Outman and Chris Altenbernd. Pepper said they, “did a fantastic job prosecuting the appeal. The reversal was made possible by their efforts. This is what lawyering is all about.”

Indeed it is… representing an unpopular defendant against whom the system again and again imposed an unjust result is exactly what lawyering is all about.

Supreme Court Upholds the Double Jeopardy Exception

Supreme Court

I suspect most people don’t realize there is a key legal loophole that allows people to be prosecuted more than once for the same crime. It’s understandable that people would not realize this, as the Fifth Amendment pretty clearly states: “… nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb…” It’s a principle handed down through the common law, and appears to date all the way back to the Roman Empire. However, U.S. courts have allowed people to be tried, and punished, for duplicate offenses if those offenses are prosecuted in different jurisdictions: State and Federal. That is, even if a state court has tried, convicted, and sentenced someone for a charge in state court, the federal government can also try, convict, and sentence them in federal court. The sentences can even run consecutively, that is, one after the other.

On Monday, the Supreme Court issued a decision in a case, Gamble v. United States, that could have reversed the long-standing exception to the bar on double jeopardy. Instead, a 7-2 majority upheld the double jeopardy exception. The majority opinion found that the separate laws are defined by different sovereigns: although “separate sovereigns” is a judicial construct that does not appear in the Constitution. Mark Joseph Stern at Slate points out that dissenting justices Ginsburg and Gorsuch cite founding father Alexander Hamilton, in the Federalist papers, argue that sovereignty derives from the people and that the federal and state governments are to be regarded as “ONE WHOLE”. So, the two-sovereignty theory fails the framer’s intent test, as well as failing to convince the court’s leading textualist in Gorsuch. The plain language of the Fifth Amendment does not seem to support that the “atom of sovereignty” can be split so as to place a person twice in jeopardy for the same offense.

This is not a change of law, the courts have long upheld the state/federal exception to the bar against double jeopardy. However, for those that have long thought the state of the law did not reflect the intent of the Constitution, this opinion represents a missed opportunity to close this loophole and protect this right of the people.

Another Proposed Amendment has been Stricken from the Ballot by a Judge

Recently a Leon County judge prevented another proposed amendment from the CRC, the Constitutional Revision Commission (Amendment 8). As we have discussed at length before, the CRC chose to combine amendment proposals, which has led to several lawsuits seeking to strike the amendments due to the language describing them to voters being confusing. The court that ruled on the previous challenge, striking Amendment 13, found that the language in the summary amounted to outright “trickeration.” The judge in this case found that the language “fails to inform voters of the chief purpose and effect of this proposal.” There are additional challenges to other Amendment proposals regarding the summary language still pending. Also, former Supreme Court Justice Harry Anstead has filed a petition with the Supreme Court to strike all six of the bundled amendment proposals. And just this week, a group of former legislators, including former Lt. Gov. Jeff Kotkamp and former congressman Connie Mack have announced that they will be working together to fight the CRC proposals, and the process in whole. Their group is called Save My Constitution, and it is comprised of all republicans.

Ultimately, the apparent pattern consistent in the CRC proposals suggests a deliberate intent to get the proposals passed, even at the risk of misleading the public. The CRC’s explanation that they combined the proposals to reduce ballot fatigue don’t ring true: there are just as many issues being propagated, but they are packaged with together to attempt to increase the likelihood of passage with voters. Many of the issues really don’t belong in the Constitution, the CRC is using the Amendment process to skip the hard work of legislating in line with the statutory scheme: they want to cram disparate issues together under a positive sounding title and summary, and hope the voters go for it. Unfortunately, that plan relies on “hiding the ball” from voters, and instigated the numerous challenges now in the court system. These rulings will be appealed, and the Supreme Court will likely be the final arbiter, but the pattern has become apparent. And now the challengers are two-for-two in striking the misleading proposals. The Supreme Court will hear the appeal of the dog racing proposal next week.

*UPDATE* The 1st DCA has sent the issue regarding proposed Amendment 8 directly to the Supreme Court for review, as well. It appears the Court has accepted jurisdiction, though not set the case for argument yet.

There are Major Problems with Florida’s Proposed Constitutional Amendments

• The constitutional revision committee has proposed several amendments to the Florida Constitution
• Judge has thrown out the amendment relating to dog racing, finding “outright trickeration”
• More Amendments have been challenged in court for misleading summaries

At least four of the proposed constitutional amendments intended for the fall ballot from the Constitutional Revision Commission [CRC] are now facing legal challenges that the ballot summaries mislead voters. This week, a judge in Tallahassee has ruled that one of them, Amendment 13-which would ban dog racing, cannot be placed on the ballot because the descriptive language that summarizes the measure would be misleading. The judge found that the Title and Summary of the language is “clearly and conclusively defective”. An amendment cannot go before voters if the Title and Summary of the ballot measure do not let the voter know the true effect and extent of what the amendment would do. In this case, for instance, the title suggests the amendment “ENDS DOG RACING” and ends wagering on dog races; but the amendment does not, in fact, accomplish that. The court found that the Title and Summary do not comply with the Constitutional and statutory requirements of “truth in packaging”, and that the language “hides the ball” and amounts to outright “trickeration“.

The language of the Title and Summary was crafted by the CRC, presumably to increase the likelihood of the amendments passing. After the CRC decided what amendments it wanted to place on the ballot, it combined several of them into joint ballot measures, sometimes with several issues (20 would-be Amendments became 8 ballot measures). That immediately jumps out as problematic, as generally Amendments are for broad areas of the law, not discreet issues. And the issues often don’t go together, for instance, vaping and offshore drilling have been combined into one ballot measure.  The likely reason is that the Commission, which is largely a partisan one, want to slide through less popular issues with popular-sounding ones which are more likely to pass. And to increase the likelihood of passage, the CRC created Title and Summary sections that may not clearly indicate the effect of the proposed amendments.

This sneaky tactic has opened the amendments to challenge from detractors, who are trying to keep the amendments off the ballot based on the misleading language that could trick the voter… and the dog racing amendment is the first casualty. There are several other amendments facing similar lawsuits: Amendment 8 relating to charter schools has been challenged for being “intentionally misleading” and has garnered support from a former Supreme Court justice, several counties have sued to stop Amendment 10 related to government structure, and importantly for this blog, the so-called victim’s rights amendment has been challenged as well.

I call it “so-called” victim’s rights amendment, because in addition to victim’s rights, it would also affect judicial retirement ages and affect judge’s ability to defer to agency findings… three quite disparate purposes. The suit has been filed by respected local attorney Lee Hollander, who points out that due to victim’s rights already enshrined in our Constitution, “there’s no need for it”, as we already have extensive victim protections. No only that, the new rights the amendment would impede on the rights of the Defendant, in violation of the Federal Constitution, and likely cost the state dearly to comply with the superfluous requirements. The challenge to the lawsuit focuses not on whether the amendment is necessary, rather it alleges that the Title and Summary mislead the voter.

You might notice a trend here… four unrelated groups have all filed suit on four different proposed amendments, and they all allege that the voters would be misled by the language of the proposal. Regardless if you support the cause of the amendments, it is essential for all of us to know what might end up being included in our state’s Constitution. The fact that there are similar complaints about multiple ballot measures, suggest that the misleading language was part of a deliberate ploy by the CRC to sneak some of these issues through. Most of these issues really shouldn’t be Constitutional amendments anyway, they are the type of issues that should be deliberated and legislated to fit our statutory scheme. Attorney General Pam Bondi indicates she’s going to appeal the first ruling, because she supports the ban, but the problem is not the subject of the proposal, but the misleading way it was presented. There will probably be more measures taken off the ballot as the suits go through the courts. The blame falls squarely on the CRC, which deliberately drafted these proposals to hide the ball and deceive voters. We should be glad when they are called out on their “trickeration”.

Supreme Court Rules that Warrants Needed for Driveway Searches

I haven’t had much time to post lately, but a substantial Supreme Court ruling this week demands a post. The Court ruled, by an 8-1 margin, that police searches that take place in the driveway of a home also require a warrant. Essentially, the court ruled that the curtilage of a home, that is, the immediate area surrounding the home, has similar protection to the home itself. In this case out of Virginia, an officer suspected that a stolen motorcycle could have been been stolen, and took it upon himself to peek under the cover. The Court found that the search was illegal because the officer did not obtain a warrant first.

Ultimately, this may not prove to be the most influential ruling… how many searches take place in a home’s driveway? Will this extend to the parking spot of an apartment complex? (I think so.) This ruling is not a great surprise, as the Supreme Court in the last few years has been very clear on the Constitutional protections for privacy against searches, particularly in relation to the home. And this will not hamstring law enforcement too much: cases like this one would present plenty of evidence to obtain a warrant.

A Look at the Ramifications of Florida’s Death Penalty Issues

The procedure for Florida’s Death Penalty was found to be unconstitutional, despite efforts to rework it, until March of last year, when a procedure that meets Constitutional muster was approved and signed into law. But what to do with the cases that had been sentenced under the old procedure. Florida’s Supreme Court ended up splitting the baby, basing their decision on when the US Supreme Court issued their controlling decision in Ring v. Arizona back in 2002. The Florida Court decided that the rule would be applied retroactively to cases decided after the Ring decision, but that individuals sentenced before then are out of luck: even though the Court had already decided the procedure used to sentence them was unconstitutional.

The decision is based on the rule that decisions based on procedure will not be retroactive. In the last several weeks, the Court has been busy issuing ruling after ruling that declines to apply the rule announced in the Hurst case to pre-2002 convictions. This column from the Tampa Bay Times takes a look at the spate of opinions that have recently been released, and the sometimes incongruous results. It’s definitely worth a read.

Via: Tampabay.com

Florida State Senator Introduces New Bill to Re-Re-Fix the Death Penalty

Florida Capitol

Florida effectively has no death penalty right now. First, the procedure that had been in effect for years was ruled unconstitutional by the U.S. Supreme Court, in the Hurst decision. Then, the legislature rushed through a new law to try to fix it, but the new law also failed to require a unanimous recommendation by the jury, and the Florida Supreme Court struck it down, as well. A new bill seeks to correct that shortcoming.

This bill in the State Senate is the first step in changing the law to make a lawful death penalty. The Florida House would also have to pass a law, and then for it to be signed by the governor before the State can resume seeking the death penalty. Right now the death penalty is on hold, pending a new law. The House may end up looking at even more extensive changes to the death penalty when they take up the issue, probably in this upcoming session, as well. The legislature may also look at changes to the Stand Your Ground Law this year.

There Could be Changes Coming to the Stand Your Ground Law

FL Supreme Court

When the Florida legislature passed the “Stand Your Ground” law, one of the provisions is for immunity from prosecution from those who used force in self-defense, under the law. The lawmakers failed to explain exactly how this immunity would be exercised. The courts then worked to apply the law, and crafted a system where the accused can file a motion to dismiss based on that promise of immunity, and would have a chance to show the court at hearing they were entitled to immunity.

At issue is that the courts have found the burden is on the accused to prove their entitlement to immunity, instead of the state. The state normally bears the burden of proof, and some proponents of the law do not like that the burden has shifted onto the protected people the law was designed to protect. Unfortunately for them, the Florida Supreme Court upheld that procedure, since there was no specificity in the law. Lawmakers are now looking at the possibility of amending the law to put the burden to demonstrate that individuals are not immune in self-defense cases back on the state.

See Also: Florida Supreme Court Opinion upholding the procedure, Bretherick v. State

and the latest story via NBC-2

Florida Supreme Court Rules in Favor of Right to Remain Silent

I was actually kind of surprised they had to litigate this issue, what with the right to remain silent being a Constitutionally protected right. Last week, the Florida Supreme Court unanimously agreed with the 4th Circuit Court of Appeal that it is  improper for the state to comment on the the pre-Miranda silence of a Defendant who does not take the stand. Basically, if someone exercises their right to remain silent… it cannot be used against them. I suspect the Florida Supreme Court was suprised the issue needed to be litigated, the 4th DCA opinion that they upheld was just issued on February 18. The appellate court certified the question as one of great public importance, but that is still an impressive turnaround at the highest court in the state.

Donna Horwitz, via FL DOC

The Court sent back the conviction of Donna Horwitz, convicted of first degree murder in the death of her husband. When police responded to the shooting, they asked Ms. Horwitz several questions, and she stood mute. The prosecutor successfully argued at trial that her silence was indicative of a consciousness of guilt, and she was convicted and sentenced to life in prison. The Court ruled, consistent with longstanding precedent around the country, that his is unfair comment on the right to remain silent. It would essentially force a defendant to testify to rebut the assertion, which is improper.

Further, the court observed that the evidence of silence would not be relevant and is inadmissible under basic rules of evidence. While silence potentially could indicate consciousness of guilt, the meaning is ambiguous. It could be shock, or a concern that officers would not believe the story, or many other things. Due to the ambiguity, it is not relevant to the elements of the crime, and would also be inadmissible for this reason.

You have a right to remain silent… use it. The State cannot use it against you if you do.

The Opinion

Florida’s New Death Penalty Declared Unconstitutional

Florida’s Death Penalty laws are once again in disarray.

The Supreme Court

Last year, the Supreme Court struck down the procedure Florida was using to determine when the death penalty should be imposed, in the Hurst case. That meant that there was functionally no death penalty in the state of Florida. The legislature moved quickly to amend the law to establish a new procedure to prosecute the death penalty in Florida, and a new version was signed into law in March. Now, all that work is out the window…

Judge Milton Hirsch, a circuit judge in Miami-Dade, has ruled that the new procedure is also unconstitutionally inadequate. The Florida procedure does not require a unanimous jury verdict before the death penalty can be imposed. Florida and Alabama are the only states that did not require unanimity, and that specific issue was not discussed by the Supreme Court in the Hurst case. Ultimately, the issue is likely to be appealed to the Florida Supreme court, and potentially the U.S. Supreme Court again, but Judge Hirsch’s opinion is the first to address the issue since the new procedure was passed.

Hirsch was critical of the law, finding that the changes were not enough. He wrote, “Arithmetically the difference between twelve and ten is slight, but the question before me is not a question of arithmetic. It is a question of constitutional law. It is a question of justice.”

Timothy Hurst, currently on Death Row

Meanwhile, the other issue up in the air is whether the Hurst decision is retroactive. That is, are all of the Floridians on death row entitled to new sentencing hearings?- 390 of them are currently on death row. While they would still be subject to a new death sentence, a ruling finding that Hurst is retroactive would likely spare a great number of inmates that the state would not wish to retry their sentencing hearings.

While it seems to be a no-brainer that if the procedure used to impose death was unconstitutional that the sentences could not stand, the courts have often held that these types of rulings are procedural, and do not apply retroactively. It will be interesting to see what the Florida Supreme Court does on the issue. Until then, Florida executions will have to be on hold. The Florida Supreme Court recently heard arguments regarding whether Hurst will mandate that he, and many other similarly situated cases will be reduced to life without parole.