Correcting Incongruities In Conflicting Decisions On Appeal

Every so often, co-defendants who were both convicted will take separate appeals based on the same legal grounds, and two different panels on the same appellate court will grant one co-defendant relief and deny it to the other. Such incongruities on appeal serve to highlight the arbitrariness that infects our judicial system, even at its highest levels--it looks bad when the precise set of issues lead to one result in Case A and the opposite result in Case B. See Joseph v. State, 447 So. 2d 243, 247 (Fla. 3d DCA 1983) (“Here, were Joseph to be given a new trial and Neal denied one, we think the defeat of justice would be evident to even the blind and vacuous”). Fortunately, however, courts have mechanisms to correct those incongruities when brought to their attention.

Consider two Florida appellate decision, Tapia v. State, 676 So. 2d 1059 (Fla. 3d DCA 1996) and Raulerson v. State, 724 So. 2d 641 (Fla. 4th DCA 1999).

In Tapia, Tapia and his co-defendant, Cook, both appealed from adverse evidentiary rulings in their joint trial. The Third District Court of Appeal per curiam affirmed Tapia’s conviction—which was the first to reach the court—but reversed Cook’s conviction. At Cook’s retrial (which Tapia was of course not afforded), he took the stand and gave testimony the exculpated Tapia. Based on that testimony, Tapia then filed a motion for new trial based on newly discovered evidence. The trial court denied that motion, and Tapia again appealed.

On appeal, Tapia alerted the Third District of the “disparate treatment of Tapia and Cook in their direct appeals, notwithstanding the fact that similar issues were raised.” This led the court to request the parties file memoranda discussing the availability of habeas corpus relief based on the “fundamental denial of due process” to Tapia. The court then treated Tapia’s memorandum as a petition for habeas corpus, and granted the writ.

In Raulerson, Mr. and Mrs. Raulerson filed appeals predicated on the identical issue. The Fourth District per curiam affirmed Mr. Raulerson, but later reversed Mrs. Raulerson’s conviction. Here’s what the court wrote:

Although this court has procedures in place to make sure that codefendants in criminal cases raising identical issues are treated consistently, our system did not work in this case because of human error in this court. As a result, one panel of this court affirmed Mr. Raulerson's conviction without opinion. 

How did the court resolve the conflict? It treated Mr. Raulerson’s “motion to recall the mandate” as a petition for habeas corpus. (The court held that it lacked authority to withdraw the mandate because the mandate had issued in a prior term of the court). It then granted the writ and reversed the conviction.

But while these courts eventually reached the correct result, it is troubling that, in each of these cases, the original appellate decisions were per curiam affirmances (PCAs). It is hard to imagine how a case containing reversible error could ever be affirmed without an opinion. A PCA implies that an appeal was so without merit that no opinion is required to demonstrate why the appellant was wrong. At least when a court affirms with opinion, it recognizes that there are at least colorable arguments presented in the case. When an appellate court eventually reverses its own PCA, it tacitly admits that it dropped the ball the first time around.

The fact that PCAs are being used in cases where written opinions are clearly warranted presents another problem as well. In Florida, a PCA cannot be appealed to the Florida Supreme Court. That means that, generally, the only relief an appellant can seek from a PCA is a rehearing (either in front of the same panel or en banc) or certiorari to the U.S. Supreme Court. In the great bulk of cases, such avenues are fruitless. Cases like Tapia and Raulerson are the rare exception where an appellate—who was entitled to relief in his first direct appeal—gets relief the second time around.