The state on Tuesday urged a South Florida appeals court to overturn a ruling that dismissed a high-profile voter fraud case against a convicted felon who cast a ballot in 2020 in Broward County.
But an attorney for the convicted felon, Terry Hubbard, argued that a Broward County circuit judge correctly tossed out the charges because Florida’s statewide prosecutor did not have authority to pursue the case.
Hubbard’s case, heard Tuesday by a panel of the 4th District Court of Appeal, was one of 20 that drew widespread attention when Gov. Ron DeSantis and other top state officials in 2022 announced charges alleging convicted felons had violated elections laws by casting ballots.
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Circuit Judge George Odom in December 2022 dismissed the charges against Hubbard because he said the statewide prosecutor only had jurisdiction to prosecute crimes that occur in more than one judicial circuit — an issue that also arose in other cases involving the convicted felons facing charges.
But Alison Preston, a state deputy solicitor general, argued Tuesday at the appeals court that Hubbard’s alleged crimes involved two circuits because he registered and voted in Broward County, and the information was transmitted to the Department of State in Leon County. Broward County is in the 17th Judicial Circuit, while Leon County is in the 2nd Judicial Circuit.
“His aim was to vote in the 2020 election,” Preston said. “That is one of the most-important transactions someone can engage with the state in. But for Mr. Hubbard, we allege that that transaction was criminal because he knew that he couldn’t vote and yet he registered and did anyway.”
But Craig Trocino, an attorney for Hubbard, argued that the appeals court should uphold Odom’s ruling because the Broward County state attorney, not the statewide prosecutor, had authority to prosecute such alleged crimes. Trocino disputed that alleged crimes occurred in Leon County, describing the role of the Department of State as “ministerial.”
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“The Florida Constitution is very, very clear that local states’ attorneys have exclusive jurisdiction to prosecute single-circuit crimes in their jurisdiction,” Trocino said. “Only when it branches out does the OSP (the Office of Statewide Prosecution) get involved.”
The attorneys also disagreed about a law approved in 2023 by the Legislature and DeSantis to try to make clear that the statewide prosecutor has jurisdiction in such cases.
Trocino argued the law does not apply to Hubbard’s case, at least in part because it passed after the charges were dismissed and after the state filed a notice of appeal. But Preston contended the law was a “procedural” change that should apply.
The panel, made up of Judges Melanie May, Dorian Damoorgian and Jeffrey Kuntz, asked a series of questions but did not indicate how — or when — it will rule.
Florida voters in 2018 approved a constitutional amendment aimed at restoring the rights of convicted felons who have completed terms of their sentences. The amendment did not apply to people with convictions for murder or sex offenses. Hubbard had been convicted of sex offenses, according to court documents.
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Odom’s ruling said Hubbard initially completed a voter-registration application in July 2019 in Broward County. The county supervisor of elections submitted the application to the Department of State, and Hubbard was issued a voter-identification card in August 2019.
Hubbard submitted a second application to Broward County in February 2020, and he voted by mail in the November 2020 election, according to Odom’s ruling.
DeSantis and other Republican leaders in recent years have made a major issue of trying to stop what they say is voter fraud. Those efforts included creating a controversial state Office of Elections Crimes and Security, which critics have derided as the “election police.”
The charges against Hubbard and the other 19 convicted felons were announced in August 2022, less than three months before a general election that included DeSantis winning another term.
But the statewide prosecutor’s involvement spurred a series of challenges. A footnote in a brief filed in December by Hubbard’s attorneys said the legal question was also pending in five other appeals-court cases in various parts of the state.
Groups such as the American Civil Liberties Union, the NAACP and the Brennan Center for Justice signed on to friend-of-the-court briefs supporting Hubbard in the appellate fight.
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