Thursday, February 26, 2009
3RD DCA ROUNDUP
TWO BITS: Update: federal blog reports Federal Judges are in line to receive a 2.8 percent salary increase, ending their status as the only federal employees without a pay raise.
Before we get to the meager pickings at the 3rd DCA , here's something that's been on our minds
The NY Post ran a political cartoon a week or so ago. It showed two police officers standing over a monkey they just shot with the caption of "they'll have to find someone else to write the next stimulus bill."
Rumpole ponders: The cartoon is stupid, and offends most people for two reasons. Mentioning the stimulus bill brings the unspoken visual reference to President Obama into play. Therefore: 1) people are upset with the characterization of our first black president as a monkey, as monkeys were commonly used as racist symbols in the last two centuries. 2) A cartoon containing a reference to our president being shot touches on a heightened fear many have that our first black president has a greater risk of being the subject of an assassination attempt then say, John McCain would have if he were elected.
OK. So the cartoon was phenomenally stupid, insensitive, not funny, and really had no relevant political message. Here's the problem: says who? Says Rumpole. Says most people. And is that new standard for political speech- what most people think? This cartoonist has the habit of drawing every of our past recent presidents as monkeys, so it's not like he just started doing this for President Obama. The NAACP is putting pressure on local Fox TV affiliates. Fox is owned by Rupert Murdoch who owns the Post. As offensive as the cartoon was, doesn't any newspaperman or woman worth their weight in newsprint refuse to fire a cartoonist because the political speech was found offensive by most who viewed it?
Just a thought.
There was very little going on decision- wise at the 3rd DCA this week for criminal attorneys. Only two cases were not PCA affirmed.
In Perdomo v. State, former Judge Jorge Perez gets the "A" for effort and does not join the judicial wall of shame. In a 3.850 motion Judge Perez denied the motion, did not hold an evidentiary hearing AND DID attach portions of the record conclusively refuting that the appellant was entitled to relief. BUT (there's always a "but" when we praise a Judge on this blog, isn't there?) Judge Perez did that for count one of Perdomo's petition, and unfortunately Perdomo filed a four count petition, so back it goes for actions consistent with the opinion. But lets all give former Judge Jorge Perez a round of applause for trying his judicial best to cope with what are apparently extremely confusing and misleading instructions from appellate courts around our state.
And in De La Portilla v. State, the 3rd DCA held that you can't sentence a defendant as a violent career criminal when s/he is convicted of battery on a law enforcement officer. (yawn). Judge Thornton takes the hit on this one, but it appears entirely possible that the issue had not been resolved by the Florida Supreme Court at the time he issued the sentence, so he gets a pass from Rumpole. Rumpole refusing to take a cheap shot at a judge? Obama promised change didn't he?
And that's it criminal wise from the 3rd DCA this week. Stay tuned next week as we learn what other judges are denying 3.850 motions without attaching portions of the record.
Did you know that the Sierra Club has estimated that over the last 5 years, the amount of paper used in litigating and reporting appellate cases in which the appellate court sent the case back to the trial court because the trial court denied the motion without attaching the relevant portion of the record used approximately 10,000 trees?
Neither did we, as we just made that up, but really, what about all the waste of time, effort, paper, and attorney hours for re-doing what is simple enough to do right the first time?
See You In Court.