Justice Denied: FL Court Reinstates John Connolly’s Murder Conviction

Flagandgavel (2)Former FBI Agent John Connolly Continues His Fight for Freedom.

Since May 28th, 2014, when the Third District Court of Appeal of the State of Florida overturned John Connolly’s 2008 murder conviction in a 2-1 decision and vacated his sentence, John has been anticipating his return home. But on July 29, 2015, the Third District Court of Appeal in a 6-4 decision reversed their prior decision and reinstated John Connolly’s conviction. The justices that overturned John’s conviction in May of last year stood by their decision to toss out John’s conviction because of the validity of the murder charge. Two more justices joined them in their decision, but the six other justices wanted his conviction reinstated. The decision was close. A 5-5 would have set John free. John has appealed to the Florida Supreme Court and prays that justice will prevail.

How could his conviction be overturned and then reinstated? John’s case has had a very unusual journey through the court system.

On May 28, 2014, the Third District Court of Appeal in Miami in a 2-1 decision reversed John Connolly’s 2008 murder conviction, remanding the case back to the lower trial Court to set him free. John Connolly was looking forward to reuniting with his family, and hugging his three sons he misses so much. John was hoping he would be home by Thanksgiving last year. But in November, in a turn of events that is as inexplicable as it is legally indefensible, the State prosecutors were granted the rare en banc rehearing by the Third District Court of Appeal. This meant John would not be home for Thanksgiving and would continue to reside on a cell-block inside a violet Florida prison. The State prosecutors wanted to delay John’s chance at freedom and filed for the rehearing en banc after the May 28th 2-1 decision overturning his conviction The State wanted the entire court to reconsider their decision.

A rehearing en banc is when all the judges seated on the bench hear and decide the case. These types of hearings are rarely granted.
In February 2015, oral arguments were heard in front of all 10 judges at the Third District Court of Appeal. On July 29, 2015, the Third District Court of Appeal filed their closely divided opinion. In a 6-4 decision, the Third District Court of Appeal reversed their prior decision and reinstated John’s conviction. But John’s fight for freedom is not over. He has appealed to the Florida Supreme Court.
Below are parts of the opinion filed July 29, 2015 Third District Court of Appeal State of Florida John J. Connolly, Jr., v. The State of Florida, Case No. 3D09-280
Judge Richard J. Suarez in his dissenting opinion in favor of vacating John Connolly’s conviction and entering a judgment of acquittal stated the following:

“In 2005, the State of Florida decided to charge Connolly with murder in the first degree, as well as conspiracy to commit first-degree murder, although the criminal events occurred twenty-three years earlier, in 1982. The statute of limitation had run on the lesser included felony of second-degree murder, and any such conviction would have to be vacated.”

“After trial, the jury acquitted Connolly of both conspiracy and first-degree murder, but found him guilty of the lesser included offense of second-degree murder as a principal. This result put the State between a rock and a hard place: the State wanted Connolly incarcerated and had risked a great deal to achieve a conviction, but everyone knew that the statute of limitation had run on the crime of second-degree murder, and Connolly would have to be released. There was only one way for the State to repurpose the conviction, and that was to argue that Connolly’s conviction for second-degree murder should be reclassified to a life felony pursuant to section 775.087(1), as there is no statute of limitation on a life felony. Connolly would then be exposed at sentencing to a term of years up to life in prison.”

“The problem the State faced is that years of case law had interpreted section 775.087 to require the defendant to have been in actual possession of (carried, displayed, etc.) the weapon during the commission of the crime, to be reclassified. The State then pursued a novel theory to justify reclassification: the State argued that a literal reading of section 775.087(1) required only that the defendant possess “any” weapon or firearm. Thus, the State proposed, if during the commission of the crime the defendant carried “any weapon or firearm,” that defendant’s conviction could be reclassified. Connolly, though in Boston at the time of the murder, was obligated to wear his FBI issued service weapon and thus, argued the State, he “carried” a firearm “during the commission of the felony,” referring to the language of section 775.087(1). The State got a verdict that, superficially at least, appeared to allow reclassification on this basis.”

“My analysis on appeal has not changed: the “during the commission” of the murder refers to the discrete and time-barred act of shooting the victim with a firearm; the “any weapon or firearm” refers to one that was used or available for use during commission of that offense.”

Suarez continues: “It was undisputed that co-defendant Martorano used his own gun to shoot Callahan, and that Connolly never carried, displayed, used, or threatened to use the murder weapon.” Evidence at trial showed that at the time of the actual murder, which occurred somewhere between Broward and Miami-Dade Counties, Florida, Connolly was 1,400 miles away in Boston.”

Suarez continues: “In this case, there has been a fundamental denial of due process because the Defendant’s conviction was erroneously reclassified based on a charge not made in the indictment.

Suarez continues: “The State acknowledges it was uncontested the only gun used to shoot the victim was possessed and discharged by co-defendant Martorano and Connolly is not the person who effected “the death of [the victim] by shooting [the victim] with a firearm.”

Suarez continues: “Further, the phrase “with a firearm” is clearly singular, and refers to the manner in which John Callahan was killed: it is clearly a reference to the only firearm used.”

Suarez C.J. continues: “Connolly was not the sole defendant, but was one of four co-perpetrators equally charged with first-degree murder, that crime cannot be reclassified to a higher offense; Connolly DID NOT SHOOT CALLAHAN; CONNOLLY DID NOT CARRY, DISPLAY, POSSESS, USE OR THREATEN TO USE, THE MURDER WEAPON; and Connolly WAS MILES FROM THE MURDER AT THE TIME IT WAS COMMITTED.”
CONNOLLY NEVER POSSESSED, USED, DISPLAYED, OR EVEN HAD KNOWLEDGE OF THE GUN USED TO KILL CALLAHAN.”
Timeline of Case Filings:

November 2008:        John Connolly is convicted of second degree murder with a firearm in Miami
February 4, 2009:     John Connolly appeals conviction. Notice of appeal filed with Third District Court of Appeal
February 8, 2011:     Oral arguments are heard at Third District Court of Appeal in Florida
March 2, 2011:        A panel of three judges uphold the conviction of John Connolly with a Per Curiam Affirmation      (PCA) decision, which means no opinion filed with the decision.

March 16, 2011:       John Connolly files Motion for Rehearing en banc
October 14, 2013:    Motion to relinquish jurisdiction filed by John Connolly
November 7, 2013:   Miami Law Innocence Clinic gets involved in assisting John’s defense. Motion for Post-Conviction Relief filed by Miami Law Innocence Clinic. The Third District Court of Appeal needs to relinquish jurisdiction to the lower trial court so the motion for post-conviction relief can be heard.

March 3, 2014: A Petition for Writ of Mandamus is filed in the Florida Supreme Court.
May 28, 2014: Same panel of three judges – in a 2-1 opinion REVERSE and OVERTURN John Connolly’s conviction
November 2014: State files for Motion for Rehearing en banc. Rehearing is granted
February 2015: Oral arguments regarding rehearing are heard.
July 29, 2015: Panel of ten judges – in a 6-4 decision reverse their prior decision and reinstate John Connolly’s conviction.
August 30, 2015: John Connolly files jurisdictional brief with The Florida Supreme Court

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