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Thursday, May 31, 2007

AFFIRMED ON APPEAL

The 3rd DCA issued an opinion recently that we find troubling.

You can find the full opinion on the 3rd DCA’s website. Click on "recent opinions and then on the opinions for May 30, 2007. It is Major v. State.

3RD DCA


We reprint a portion of the opinion and invite commentary. We will provide our own view of the matter at a later date. However, to summarize, in a murder trial, the prosecutor prevailed on the ME to change his testimony right before he took the stand. The change was a significant blow to the Defendant’s theory of the case. The 3rd DCA affirmed because the defense attorney did not object.

We view the decision as “result oriented”. The simple fact is that if the 3rd DCA believes the issue deprived the defendant of a fair trial, they should have overlooked the fact that it was a murder case and reversed the case and remanded it for a new trial:

Here is the selected portion of the decision:

Prior to the defendant’s trial, the medical examiner, Dr. Shuman, stated that that he could not conclude whether the bullet fragment removed from Roberts’ brain, which he identified as the fatal bullet, came from a handgun or a shotgun....

However, at trial, Dr. Shuman testified that he was certain that the fatal bullet was fired from a handgun. Dr. Shuman also testified that he changed his opinion the morning of trial when the prosecutor met with him, provided him an additional photograph of the headrest in Roberts’ car, and told him that a witness would testify that a shotgun was fired from the third floor...

The record reflects that, after the prosecutor became aware of Dr. Shuman’s changed opinion, she failed to immediately disclose the inconsistent testimony to the defense. Although Dr. Shuman’s expected testimony was critical evidence in the State’s case, the prosecutor inexplicably failed to mention that Dr. Shuman would now testify that the fatal bullet was fired from a handgun...

In this case, it is undisputed that defense counsel was surprised by and unprepared for Dr. Shuman’s changed opinion. It is also undisputed that, upon learning of Dr. Shuman’s changed opinion during his direct examination defense counsel did not object to the existence of a possible discovery violation or request a Richardson hearing. Instead, defense counsel cross-examined Dr. Shuman and attempted to impeach him using a medical report that apparently reflected his inconsistent testimony...

Where a defendant fails to timely object to a discovery violation or to request a Richardson hearing, the defendant does not preserve the point for appellate review...

Instead, we find that we cannot reach the issue of whether a discovery violation occurred because this was not preserved for appellate review...

However, the defendant may seek post-conviction relief under Florida Rule of Criminal Procedure 3.850 for ineffective assistance of counsel... A better case for ineffective assistance of counsel is difficult to imagine as the changed testimony here crippled the defense’s theory of the case and would have caused a criminal defense attorney with any modicum of effectiveness to object to this new evidence and demand a Richardson hearing. Undoubtedly, the defendant’s proper course of action is to pursue a claim that his attorney was ineffective for not preserving the purported discovery error for appellate review.


Rumpole says, a careful review of former 3rd DCA opinions will yield a little case written by former Chief Judge Schwartz in which, confronted with a clear case of ineffective assistance of counsel on direct appeal, reversed the conviction in which, and we are quoting from memory here, he writes that the court prefers to save time and do now what clearly would be done later. A special bonus to anyone who finds the cite and posts it.

See You in Court, objecting to everything, which apparently the 3rd DCA wants trial lawyers to do, lest we miss an issue for appeal.


Special thanks to our favourite Herald scribe who tipped us off to this decision. Apparently she reads more case law than we do.

18 comments:

Anonymous said...

Way too easy. I assume by the time this is posted, you'll have several responses telling you the case is Mizell v. State, 716 So.2d 829 (Fla. 3d DCA 1998).

The "special bonus" you promise should be given for also citing Maddox v. State, 760 So.2d 89, 98 (Fla. 2000), where the court said “little is gained if the appellate courts require prisoners to file, and trial courts to process, more postconviction motions to correct errors that can be safely identified on direct appeal.” The Supreme Court also said that it would be “hard-pressed to conclude that shifting to defendants the burden of filing postconviction motions, and to trial courts the burden of processing these additional motions, advances the overall goal of judicial efficiency.”

The real issue, about which appellate judges obviously have philosophical differences, is whether the requirement of preserved error found in the Criminal Appeal Reform Act must be rigorously enforced or whether exceptions should be made.

Anonymous said...

Rumpole, please let your readers know that on Monday, June 4th at 5:30 pm at Tobacco Road in the upstairs room there will be a meeting of the Florida Indigent Defenders Association (FIDA). We ask all PCAC attorneys and others of goodwill to attend.

Operation Restore Sanity said...

Scene: Monday evening. Tobbacco Road.

Attorney (atty): Thanks for attending everyone. Here is the update on changing the law....

Captain pro se(CPS) Dum dum da da! It's Captain Pro Se. (leaps in front of attorney and waves cape)

Atty: Who in the hell...

CPS. I am Captain Pro Se! And before you ask, the dum dum da da was the trumpets which herald every appearance I make in public.

Atty: okayyyyy........uhhhh what do you want?

CPS. I have two demands: 1) that Captain Pro Se be allowed to accept court appointments, and two that each and every lawyer here stand and be sworn and admit or deny whether or not they are Rumpole.

Atty: Well, I think you need to be licensed to get court appointments, and as to Rumpole...

CPS: Licensed??? Hahahahaha! I laugh at your bar association. Indeed, I shall be filing a bar complaint against you. Say goodbye to your license.

Atty: Me? What did I do?

CPS. Hmmm...I'm sure you did something...hmmm...lemmee think. Oh oh oh. I know. You held a meeting for lawyers in a bar. That has to be some kind of misbehavior. Yes...I shall file a bar complaint for you being in a bar. Hahahaha. Now as to Rumpole.

Atty: No one is going to be taking any oaths. Scram Captain crazy.

CPS. (reaching into his cape and ruffling papers) If you'll just hold it a minute, I have a lawsuit here, and I intend on serving all of you. Lets see...
CPS v. Broward...no...hmmm...CPS vs. The Beach boys...no... CPS v. Mother Teresa...no

Atty: Why did you sue Mother Teresa?

CPS. She annoyed me. All that good two shoes stuff. Just you be quiet legal boy. I know I have the lawsuit here somewhere... CPS vs. Dade. No. CPS vs. Flipper.No. CPS vs. The Camilus House. No. CPS vs. The Humane Society. No. CPS vs. The Miami Dolphins. Can you believe they want to start Culpepper again? I'll fix them. Hmm... where is that Rumpole suit?

(attorneys start walking away).

CPS. Wait. Wait I say. I'll sue you for walking away. I'll sue you for not letting me sue you. I'll file a bar complaint for not letting me sue you. Wait I say. (all the attorneys have left.) DRATS. Foiled again.

WILL CPS EVER FIND RUMPOLE?
WILL CPS EVER FILE A LAWSUIT?
WILL CPS EVER GET BETTER?

Tune in and find out!

Fenwick/Hardwick Prods, in association with Operation Restore Sanity (c) 2007, all rights reserved.

Rumpole said...

Rumors are flying that another Miami Judge has just accepted an offer to work for Univision as a TV Judge.

We are trying to confirm it before we post it.

Rumpole said...

I can't post the emails flooding in about the new judge who is rumored to have resigned to take a TV job until I get confirmation from a reliable source. For reasons which will be clear later, it is not fair to this judge at this time. I will explain further when I can.

Anonymous said...

ORS- AS ALWAYS, I laugh out loud at your CPS stuff. I look forward to it every day. Keep up the good and fuuny work.

Anonymous said...

wouldn't UNIVISION would need a hispanic? NOne were nominated for either the third or the circuit. uummmmmmmmmm?????????????????

Rumpole said...

Thats as close as I can come to posting comments with a name without confirmation.

Rumpole said...

nah..changed my mind and took it down. I need confirmation damit.

A Reliable Source said...

The rumor being spread around the Courthouse is true Cristina Pereyra-Shuminer will be resigning to become the fourth TV Judge from Miami. She will be on the Univision Network. Kudos to her. but it is unfortunate. We will be losing a great Judge and a great potential 3RD DCA Judge.

the trialmaster said...

the trialmaster may be in the building next week!

Sam Spade said...

Now with the information confirmed concerning the resignation of Judge Pereyra-Shuminer to become the latest to defect to the small screen JQC Rock will have to look elsewhere for the individual or individuals who wielded the knife so expertly placed in Mr. Hanzman's back. What clues will he uncover and where will they lead him?

Anonymous said...

its pereyra. put it in the bank

Rumpole said...

We have 100% confirmation Judge Cristina Shuminer will resign and has withdrawn her name from consideration for the 3rd DCA to be a TV judge for Univision. We could not post this without confirmation in the event it was not true and it damaged her application to the 3rd DCA. Now that we have confirmation, we wish her well in her new endeavours.

Captain pro Se said...

Damn...I was just about to file a JQC complaint against her. Drats! Foiled again.





Fenwick/Hardwick prods, in association with Operation Restore Sanity.(c)2007. All rights reserved.

Anonymous said...

Rumpole, wasn't that easy for you to figure out. She's your wife, isn't she?

I ON Q said...

I ON Q reports that the Q is very satisfied and happy that his protoge Judge Cris Shuminer has accepted a job with Univision.

The Q has long thought highly of Judge Shuminer and proudly wishes his friend good tidings in her new venture.

I ON Q is a weekly PodCast about everyone's favorite attorney. It can be downloaded from most PodCast sites.

Joe Torrie said...

Could be a double switch! Judge Marilyn to the view and Judge Cristina to Peoples Court.