3RD DCA PCA'S TAKE TWO. (HEAT LOSE...HEAT GET BEAT.)

An excellent analysis of the recent spate of 3rd DCA PCAs caused us to re-think our prior criticism of the FIU/Kendall-Courthouse ensconced judges: 

 Anonymous said... While PCA opinions are short, if you actually read them you will learn the following: of the 29 criminal PCAs, six of them are Anders briefs (if you don't know what an Anders brief is, you should stop reading this blog and start reading the South Florida Lawyers blog); 17 of the criminal PCAs are denials of post conviction relief, 15 of which are pro se. Of the six remaining PCAs, 2 are plenary appeals from adult felony court and four are from juvenile court. Friday, May 24, 2013 3:13:00 PM 


Leaping to the defense of his former colleagues was the former CJ of the 3rd DCA:

 Juan Ramirez, Jr. said... If you think the Third District writes PCAs for such a questionable reason as to avoid Supreme Court review, you should check out Marshall v. State, 45 So. 3d 470 (Fla. 3d DCA 2010), in which the en banc court divided 6 to 4, with a concurrence and a dissent, in a developing area of the law (Crawford v. Washington). Of course, I would never suggest my former colleagues would resort to such a questionable practice. I am sure the panel had good reasons for not writing. Friday, May 24, 2013 8:17:00 AM 

 For those of you that do not know, Judge Ramirez left the bench for a much more honourable profession: blogger. His blog is here.

IF YOU CAN'T STAND THE HEAT....GO WATCH EM GET BEAT:
The Heat got beat, which makes our weekend complete. 
We watched  the Heat get Beat Friday night from a very nice box, far removed from the white shirted hoi-polloi -many of whom read this blog and have loved their precious Heat with every ounce of their being ever since the geographically challenged Lebron spit on Cleveland and decided to take his "talents" to South Beach (we just chuckle every time we imagine that carpetbagging phony finding out that the Arena was not on SOBE). 

The Heat's home court advantage disappeared as LBJ's two late turnovers (choke..choke) sealed his spoiled team's fate. 

And all you Heat fans, who are so devoted to this team (so you tell us repeatedly), can you explain to us why everyone was bolting for the exits with about 3 seconds left and your team only down by three? It's not because Miami Heat fans are bandwagon jumping front running phonies is it? 

With a hat-tip to @davidovall305 who is enjoying the long weekend (and his non-paid furlough from the Herald) in Jamaica, here is an excellent description from an eyewitness to a shooting:

A long holiday weekend marks "di" start of summer. Have fun and "me" see you Tuesday, ready for trial. 

THE HARDEST WORKING MAN

When we last left beleaguered Assistant Public Defender Jay Kolsky, he was the hardest working lawyer in the REGJB- a PD with something like half a million open cases (or perhaps closer to 600). The PDs drew a line in the sand and said "no more." One more case and Jay would drop like a hamster on a wheel, going no where and about to take one step too many. 

The case went to the 3rd DCA who said in formal staid legalese: "Get back to work swine", but the PDs weren't done. Jay needed to be saved. So Quiet Charlie spoke and marshaled the troops and went to the Supremes in Tallahassee. 

"Help" said Charlie, he a man of few words. "Jay can't take it anymore." (According to the opinion it took 26 volumes of court records to say what we just said in one sentence. No wonder the planet is in trouble.) 

Today the Florida Supreme Court ruled here. 

"Jay sounds like a good guy" said the court. Indeed Kolsky caught some Tallahassee love in footnotes 10 and 11 of the opinion, which are just too good not to re-print here:


10. At the time, Kolsky was the sole third-degree felony attorney covering his courtroom and had to absorb the caseload of his co-worker who left the office for other employment.

11. At the time, Kolsky had thirty-six years’ experience and was considered one of the best and most experienced lawyers in the office. 

As for the rest of the opinion, we'll summarize it here:
The PDs might be able to withdraw en masse or refuse appointment (look out Regional Counsel) if Jay is still as busy as he was when the PDs courageously said they would no longer ride in the back of the bus. 

A statute prohibiting the PDs and Regional Counsel from refusing appointment or withdrawing because of excessive case load is neither unconstitutional nor means what it says:

The court ruled:

Thus, we find the statute to be facially constitutional and answer the certified question in the negative. However, the statute should not be applied to preclude a public defender from filing a motion to withdraw based on excessive caseload or

underfunding that would result in ineffective representation of indigent defendants nor to preclude a trial court from granting a motion to withdraw under those circumstances. 

And yet the statute reads:

section 27.5303(1)(d) provides that “[i]n no case shall the court approve a withdrawal by the public defender . . . based solely on the inadequacy of funding or excess workload. 

So much for the ol' "plain language of the statute" rule of statutory construction. 

And finally, and in our opinion, the worst part of the opinion with the potential for far reaching consequences, the nose of the State Attorneys Office stays firmly under the tent of a motion to withdraw. Or to put it another way, the State has standing to object to your motion to withdraw. Mark our words, this has the potential, to quote Chief Justice William Howard Taft, "to be a real pain in the ass."

And so life is circular and all things often end where they begin. The case is remanded to our wonderful little circuit. Jay Kolsky will wheel a few thousand files into a courtroom and stare at them forlornly  and say that he just can't take it anymore. And now the Judge has the ability to say: "I hear you Jay...Appoint Regional Counsel." 

Next up after what has been fondly called "PD11"? 

RC3 v. State. 

See you in court. 

PER CURIAM, AFFIRMED

FREE ALEX MICHAELS UPDATE:
The 3rd DCA was a bit busier yesterday than we realized. This is their latest order:
That portion of this Court's order dated May 17, 2013, which grants the petition for habeas corpus, is vacated as improvidently entered. However, the stay shall remain in force and effect pending further order of this Court. The cause is remanded to the trial court for a determination whether to require the posting of a supersedeas bond. This Court retains jurisdiction over the matter which is treated as a petition for writ of habeas corpus. The petitioner is hereby ordered to file all relevant transcripts, including the evidentiary hearing and the violation of probation hearing within ten (10) days of the date of this order. The petitioner is hereby ordered to file an amended petition setting forth any and all legal arguments going to the challenge of the conviction and sentence within five (5) days of the date of the filing the ordered transcripts. The State of Florida is ordered to file a response to the amended petition within ten (10) days thereafter. Further, a reply may be filed five (5) days thereafter. No extensions of time will be granted. This cause is hereby set for oral argument on TUESDAY, JULY 2, 2013, at 10:30 o'clock A.M. with ten (10) minutes allowed each side for presentation of oral argument. WELLS, C.J. and SHEPHERD and LAGOA, JJ., concur.


Currently the courtroom for the oral argument is sold out. However, we might be able to get our hands on two, lower level, on the aisle. $350/a seat. Send us an email if you're interested.



So we're a couple of months into the Judge Soto administration as chief judge of the 11th Judicial Circuit. Anybody notice any changes?

3rd DCA PCA PARTY!
A brief check of the 3rd DCA opinions issued today shows twenty eight (28!!!) PCA's of criminal cases. There was one written opinion in which the conviction was affirmed in all respects except a remand to correct a sentencing error as "to a nonexistent statutory section."  That's how bad it's gotten folks: even nonexistent criminal convictions are getting affirmed. 
Twenty eight PCAs. None of these defendants were entitled to even the slightest of opinions? A few words here; an apodictic there?  Appellate lawyers know that the practical effect of a PCA is that there can be no appeal to the Florida Supreme Court. So what's going on here? Nobody is filing meritorious appeals worthy of even brief discussion, or....are our 3rd DCA judges making some tactical decisions about their legal decision? 

We heard you:
Over the last few weekends readers complained about the anonymous posts by various (?) individuals bragging about their sexual exploits. The general tenor of the comments were that that attorneys, usually older men, were having liaisons and assignations  with employees, or interns or attorneys, usually younger women. We heard your complaints and will no longer post such comments absent exceptional circumstances. Thanks for reading. 

See You In Court. 

JOINT POST BY JUSTICE BUILDING, SOUTH FLORIDA LAWYERS, AND SOUTHERN DISTRICT OF FLORIDA BLOGGERS

You lose your rights, not with a bang, but with a whimper. One small encroachment after another. A bureaucrat pushes the edges here, a prosecutor challenges the boundaries in a few cases there. No one says or does anything and then you look up and suddenly a cherished right is gone. 

Nothing is more insidious and dangerous to our constitutional rights than a bureaucrat who, under the cover of a government agency, seeks to intimidate someone. That is why the letters we have posted  from the Florida Bar to attorney and blogger William Gelin have so alarmed us: the bloggers who run the Justice Building Blog, the South Florida Lawyers Blog, and the Southern District of Florida Blog.

Bar Letters from Justicebuilding

WIlliam Gelin runs the JAA Blog which covers the Broward County Courthouse. To Mr. Gelin's credit he has never sought to hide his identity as the lawyer behind the blog. As a blogger who has openly challenged the way things are done in Broward, Mr. Gelin has courageously taken on numerous people in Broward County, including judges. Now, apparently after a series of posts about two Judges in West Palm Beach and Broward County, (ironically) anonymous bar complaints have prompted the Bar to send Mr. Gelin letters seeking him to admit or deny his involvement in the JAA Blog. 

We as the legal blogging community in Miami view these letters as an unprecedented attack on the First Amendment and freedom of speech. The letters are chilling, and will have a chilling affect on the free speech of lawyers. Judges are invested with responsibilities and powers and all too often those powers cloud their judgment. The ability of lawyers to freely comment on a Judge represents an important check on those powers. The ability of citizens to write about the issues of the day has a long and storied history in our country. James Madison anonymously published many of the federalist papers under the pseudonym Publius in the local newspapers of the time. Blogging, anonymous and otherwise, serves a similar purpose. 

The Florida Bar's letters to Mr. Gelin amount to both a fishing expedition and a veiled threat for him to stop criticizing Judges from the pages of his blog.  We jointly condemn the letters the Bar has written, and stand behind our colleague in this matter. That is why all three blogs have taken the unprecedented step of running this post simulataneously. We urge our readers to voice their support of Mr. Gelin by writing to the Bar to condemn the actions of the Bar Counsel in this case. 

Thank you. 

Justice Building Blog

South Florida Lawyers

Southern District of Florida Blog

FREE ALEX MICHAELS!!!

UPDATE:
After finding Alex Michaels in contempt, Judge Miranda denied a request to allow him to post a bond pending appeal. This is most disturbing. The sentence was two days jail. Without bond pending appeal there would be no way for Mr. Michaels to seek review of the conviction for contempt without having already served the penalty. The judge's decision indicates that perhaps her emotions were involved, and that she was not impartially dispensing justice, but was angry and seeking to punish without regard to the rules, which are fairly clear:

(a) When Authorized. All persons who have been adjudicated guilty of the commission of any offense, not capital, may be released, pending review of the conviction, at the discretion of either the trial or appellate court, applying the principles enunciated in Younghans v. State, 90 So.2d 308 (Fla.1956), provided that no person may be admitted to bail on appeal from a conviction of a felony unless the defendant establishes that the appeal is taken in good faith, on grounds fairly debatable, and not frivolous. However, in no case shall bail be granted if such person has previously been convicted of a felony, the commission of which occurred prior to the commission of the subsequent felony, and the person's civil rights have not been restored or if other felony charges are pending against the person and probable cause has been found that the person has committed the felony or felonies at the time the request for bail is made.

FL Rule Crim Proc.  3.691

The 3rd DCA promptly ordered Mr. Michaels released when the petition was faxed to them Friday afternoon. Judge Miranda was simply wrong and her failure to allow Mr. Michaels to seek review of her order casts doubt on her impartiality and her decision in this matter. 

BREAKING!

Judge Miranda held a contempt hearing today for Alex Michaels. Nothing worth reporting about- sort of "dog bites man" story. In what week is Alex not in a contempt hearing?

But this afternoon, Judge Miranda sentenced Alex (he has a fake twitter account which is gaining cult status @draculawyer) to TWO DAYS DCJ!!!!

No idea yet what the allegations were, and whether Alex is out on appeal. Will update as we learn more.

Follow @Davidovalle305 of the Herald for the up to the minute theater.

UPDATE  1: Alex spent the week mumbling curse words under his breath allegedly about the judge and/or prosecutor. Not wise. 

UPDATE 2: 3rd DCA orders Alex released pending appeal. Alex happy Rudy Sorondo has retired. Who can forget the opinion in Quinones v. State, when everyone learned what "contumacious" means:
During the course of what should have been a simple case, defense counsel achieved unprecedented levels of attorney misconduct. Indeed, it is arguable that his intent was not to try the case at all but, rather, to sabotage it. Counsel's misconduct is best addressed as presented by the state in its motion for mistrial: first, repeated disobedience of the trial court's orders, and second, the suppression of physical evidence. His misbehavior unquestionably had a significant impact on the jury.

Defense counsel's disregard for the court's orders was not only unethical but contumacious. During the course of the trial, defense counsel directly and repeatedly ignored the court's ruling that no mention was to be made of the fact that the victim was incarcerated...

 But one bad omen on the horizon: Judge Rothenberg, who has held Alex in contempt when she was a circuit court judge, is on the 3rd DCA. Uhho.

UPDATE 3: David Ovalle has a portable putting green. 
Four letter word for  golf nut: nerd

SHOOTING VIDEO

If ever you needed to be reminded about what a dangerous job police officers have (not that this excuses them in the least from their awful and wide spread habit of prevarication) here is the video of the marijuana grow house video in which MDPD Detective John Saavedra is shot.

We've seen a lot of these. This one is chilling.
The action starts at about 1 minute.





LIFE RECOMMENDATION:
The jury returned a recommendation for life in prison for Walter Bailey in a double homicide that was tried before Judge Tinkler-Mendez for the last few weeks. ASA Gail Levine (sans expectorations) for the state. Lane Abraham and Richard Houlihan for the defense. 
There are no judicial overrides for a life recommendation in Florida. 
As was pointed out to us in an email, the law allows for a judicial override but the standard is extremely high. As a practical matter, judicial overrides of life recommendations are difficult and rare. 
Query: Why is Florida the only state that allows for a non-unanimous jury to vote for death? 

See You In Court. 

PHIL DAVIS CONVICTION AFFIRMED

. 

(Inmate Phil Davis)

The year was 1992 when the name "courtbroom" broke across a  Miami. First a whisper, the courtbroom scandal- a federal investigation into Miami Circuit Judges selling court appointments for kickbacks- crested and broke upon Miami and  ravaged the reputation of the Miami legal community like Hurricane Andrew roaring through a South Dade home built with chinese drywall. 

Judges Sepe, Gelber, Shenberg, and Davis, along with former Judge Goodhart and a gaggle of lawyers,  were all  eventually indicted. Gelber pled and flipped, rat that he was. Everyone else went to trial. All were convicted except a hung jury for Sepe (who later pled to one count to close out the case) and a complete acquittal for Phil Davis (thanks to the amazing job done by his lawyer, now Congressman, and former US District Court Judge until he was impeached, Alcee Hastings. And if that sentence doesn't tell you all you need to know about South Florida, then keep reading the blog.)

But like a bad penny that keeps showing up, former Dade Circuit Judge Phil Davis could not keep out of trouble. 
More than a decade after his surprising "OJ like acquittal" in federal court, Davis  was  convicted in Dade Circuit court for money laundering, grand theft, and participating in an organized scheme to defraud, all arising, not surprisingly, out of Davis's misuse of a charity. 

The 3rd DCA (Schwarz, Logue, and Lagoa) just upheld his conviction and TWENTY YEAR sentence here. 

Davis was an awful judge. 20 years is a devastating sentence for him. But really, does he have anyone else to blame but himself? He accepted bribes as a judge. He stole from a charity. At some point karma plays a role. 

See You In Court. 

UPDATE: Phil Davis trivia: who did Davis beat in his election as circuit judge?