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Thursday, February 19, 2009

3rd DCA ROUNDUP

If it's after Wednesday, then it's time for 3RD DCA ROUNDUP. 

Judge Thomas was reversed and the case remanded for discharge based on a PCA opinion which succinctly stated that there was no founded suspicion much less probable cause to justify the stop, search and seizure. The decision in Thames v. State is here. 

Query: If the police conduct was so egregious, why didn't the 3rd DCA include at least a modicum of the facts, so we could use the case in subsequent proceedings?  This decision has NO precedental value because nobody can tell the circumstances of the stop. Isn't precedent what our entire legal system is based on? 

Compare Thames with the decision in State v. Reyes, here, in which the court affirmed the suppression of evidence obtained in a pat down search, but reversed the suppression of other evidence obtained after a valid stop. The decision lists the facts and applies the law in a way in which this case can be used again and again.  

What's up 3rd DCA? Why do we get the facts in some cases but not others? 

WALL OF SHAME.

Judge Marissa Tinkler Mendez joins our wall of shame for denying a Rule 3 without attaching record excerpts conclusively showing the appellant is not entitled to relief.  
The same old decision for the millionth time is here in Fernandez v. State

As a former appellate lawyer who clearly knows better, we say to Judge Mendez, who otherwise is doing a great job in the REFGJB, double shame.

See You In Court, reading those FLWs. 

6 comments:

abe laeser said...

Should not be too tough a task. This time I will try to make sure that the Judge attaches all of the previously denied pleadings in order to prove that Fernandez's motion was untimely and succesive.

Mea culpa.

Wish the DCA could have a clerk just find their own records rather than sending these missives back --even if we broke their rules.

Mea maxima culpa.

Anonymous said...

It looks like the 9 year old boy accepted the plea deal in the murder of father and another man.

Jury convicted Zarabozo in less than 6 hours on the retrial.

Interesting times.

Rumpole said...

I won't publish comments that re-print the entire article. Summarize the article and include a link.

RE: Fernandez- the rules are the rules no matter how ridiculous. If I had a dollar for every time that opinion was published by all the DCAs in the last 5 years, I could retire to that house in Lake Tahoe.

My point is that this issue has been made abundantly clear and any judge who denies a motion without a hearing should look at the pile of FLWs on their desk (un-read) and say to themselves "Now I need to attach a portion of the record."

Just how hard is that after all this time?

Anonymous said...

Sorry Rump, but Abe's right. Sending back the case is a total waste of time and taxpayer money. Being a prima donna has it's price, and we, the public, are paying it.

Some of these judges (most are fine) need to realize that, while they may work in an ivory tower, they serve the public. There simply is no reason for them to send the case back when they can access the records themselves.

BTDT

Anonymous said...

Rump,

Aren't the facts as laid out by the dissent enough for you? Seems to me that the dissenting judge probably circulated a draft that included facts, leading the other judges to conclude that a fact section in the majority or concurring opinions would be a waste of time.

Also, do you have ANY idea how many PCAs in the State's favor lack any facts? Yet, you've never complained about those.

Anonymous said...

opinions at 947 so. 2d 460