Thursday, March 05, 2009


The decisions from the 3rd DCA start off with a bang, and that's not good news for the SAO. 

In Nodal v. State, the court reversed the "horrible and tragic double homicide" conviction because the trial judge did not grant the defense's request to appoint a neuropsychologist for the defense to examine the defendant and provide testimony where the defense was insanity, and the prosecution had their own neuropsychologist expert.  The decision list Judges David Young and Rosa Rodriguez. 

Rumpole says:
"For the want of a nail the shoe was lost;
 for the want of a shoe the horse was lost;
 for the want of a horse the rider was lost;
for the want of a rider the battle was lost;
for the want of a battle a kingdom was lost;
all for the want of a nail.

Next time judges, in an insanity case, appoint the damn expert and be done with it. 

In Robinson v. State, we see the perils of turning yourself in when you think you are wanted for a crime. Robinson called the police and turned himself in, telling the police he was wanted for murder. He was not. He was wanted for questioning.  The defendant moved to suppress his confession, arguing that his consensual encounter with the police turned into an arrest when he was handcuffed in the back of the police unit. 

Not so says the 3rd DCA.  It was entirely reasonable for the police to handcuff the defendant when he told them he was wanted for murder and "the defendant never asked the police officer to verify the charges." 

Moral of the story: when you turn yourself in for murder in Miami, ask the officer to verify the charges before you are taken away.
Judge Schlessinger denied the motion to suppress at trial, and he gets another notch in his belt courtesy of the 3rd DCA.

And finally in State v. Lacayo the 3rd DCA interprets section 948.30(3) of the Florida Statutes, which requires electronic monitoring for all persons convicted of a crime and designated as a sexual predator to mean any crime, even a non-sexual crime,  so long as the individual has a previous designation as a sexual predator.  Therefore, if you have a previous designation as a sexual predator, and these days who doesn't- then even if you get six months probation for petit theft or driving with a suspended license, the court must impose electronic monitoring. 

So there you have it another edition of our 3rd DCA roundup, and best of all, no judges made the hall of shame. 

See you in court reading those FLWs. 


Anonymous said...

The moral of the story is to spend the bucks and hire an attorney to determine whether you should turn yourself in, and, if so, to accompany you and assert your constitutional rights for you, which the police are far more likely to respect if asserted by counsel.

Anonymous said...

Judge Eig is being re-assigned as of march 30th to delinquency.

Seems like someone at the broken down juvenile courthouse was out to get him moved as he didn't fit in with her agenda!

But perhaps her days are numbered with a new chief taking control of the boat this sunmmer!

Rick said...
This comment has been removed by the author.
CAPTAIN said...


While you are on the subject of reporting opinions from higher courts ....


This week, in a 6-3 opinion issued by the Supreme Court, Justice Clarence Thomas sided with the majority while Justices Roberts, Scalia & Alito were on the dissent.


"This morning, by a vote of 6-3, the Supreme Court of the United States issued its landmark decision relating to state law failure-to-warn claims in pharmaceutical product liability cases and held that such claims are not preempted by federal law. Wyeth v. Levine, No. 06-1249 (slip op., 03/04/09). The majority decision, authored by Justice Stevens, unequivocally rejected the pharmaceutical defendant’s arguments that the FDA regulatory scheme preempted state law failure-to-warn claims and outlined the real world limitations of FDA powers. This decision will have implications in pharmaceutical product liability claims for decades to come."

Joining Justice Stevens in the majority were justices Kennedy, Souter, Ginsburg, Breyer and Clarence Thomas. Although Justice Thomas concurred with the outcome, he did so under a different line of legal reasoning. Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito dissented.

Captain Out ....

Anonymous said...

The Lacayo decision is brutally stupid.

The "plain meaning" analysis somehow ignored that the quoted section is titled "Additional terms and conditions of probation or community control for certain sex offenses."

Not for ANY CRIME, but "probation or community control for certain sex offenses."

Anonymous said...

Thank you for that post. The fact that Thomas separated from his Siamese twin Scalia is important. The most important part of that decision, however, is that a right leaning SCOTUS has preserved a vital part of participatory democracy, i.e., the petit jury,which the Bush administration tried very hard to repress. This ruling is really big and really good.

Anonymous said...

Miami long time appeallate attorney Paul Morris got the 4th dca to reverse a denial of a rule 3. It will be in the next FLW. If anyone has appeallate issues and can afford a top notch appeallate lawyer, I endorse Mr. Morris.

Anonymous said...

the trialmaster gave his opening statement today. he blew them away.

Anonymous said...

Defensive Driving Florida offers Florida online defensive driving courses.

Anonymous said...

Defensive Driving Florida offers Florida online defensive driving courses.

The Voice of Reason... said...

Rump, at what point do we as a nation sit back with some national introspection, and say "Ooops!" Anyone who still thinks it was a good idea to vote for Obama needs to read this column.

There are so many recent glaring examples of Obama's utter incompetence and naiveté, whether it be in foreign policy, military, or the economy. We as a nation knew he was the most inexperienced person ever to run for, much less be elected to the Office of the President, but because of his intelligence and eloquence, we as a nation (or, at least, most of the nation) gave him a pass and took a chance.

It now looks increasingly more obvious that was a huge, costly mistake.

Anyone who criticized Bush 43 for his irresponsible spending (appropriate criticism, in which I personally joined) MUST read this article. Bush had nothing on what Obama is now foisting upon the American people.

"Mr. Obama's $3.6 trillion budget blueprint, by his own admission, redefines the role of government in our economy and society. The budget more than doubles the national debt held by the public, adding more to the debt than ALL PREVIOUS PRESIDENTS - FROM GEORGE WASHINGTON TO GEORGE W. BUSH - COMBINED."

Anyone who complained about Bush, but is now silent with Obama, relinquishes all credibility and is exposed as a pure partisan hack. Where is the criticism for Obama? Rump, it is time to state the obvious: Obama's economic policies are not the cure for our nation's continued downward spiral, they are the cause. He is, simply put, making things worse not better.

South Florida Lawyers said...

Here here, 9:58.

Captain My Captain said...

Kopco v. De la O

Anonymous said...

This just off the police scanner 13 year old middle school student mugged, strangled and robbed walking home from school today is the son local of robed warriors. Any info????

Anonymous said...

To 7:06:00 PM

Juvenile Court is a feckless institution because most of the Judges are unwilling to treat the Respondents as criminals. It is the proverbial revolving door, that serves only to train apprentices into Career Criminals. For the good of our community we can only hope that the new judicial administration will expel those unwilling to uphold the law and protect the citizens of Miami-Dade.

The Voice of Reason... said...

Rump: In a continuing sign of the ultra-hypocrisy of the left, where are the folks who were so outraged at Cheney's "assault on the constitution?" They are noticeably silent, even as Obama adopts, and even extends those same practices which were so denounced by the left as the end of the world and the "shredding of the Constitution". It is just another example that those who berated Bush and Cheney were not actually concerned with protecting the country, but rather political partisans more interested in achieving political power so as to remake the country into a socialist utopia.


Anonymous said...

I still can't understand how anyone with a modicum of analytical and critical-thinking skills got taken by Obama's pretty but shallown and substantless eloquence.

Anonymous Liberal said...

Dear "Voice of Reason"

Your lack of exposure to left wing writings does not mean the writings aren't out there. There are PLENTY of people on the Left who are upset at Obama's national security policies so far. Let's just pick a fair example of Left wing thought: Glenn Greenwald. Here are FOUR columns he has written since the inauguration:




THEN read how Congressional Democrats are addressing Obama's positions:


I'm not saying there isn't hypocrisy on the Left, but frankly you're projecting the hypocrisy you regularly see on the Right.

The Voice of Reason... said...

6:49 - You are correct that the Congressional Republicans (Not the same as the Right - See Olympia Snowe, Susan Collins, Arlin Specter, etc.) have been hypocrites, particularly when it comes to fiscal discipline, or lack thereof. They have completely abandoned their core principals. However, that is the main reason they got spanked in the last several elections and lost the House, Senate, and Presidency. Their base became irate and disillusioned. The difference is that the left's base not only ignores the hypocrisy, but they actively join in it. The American people (rightly) punish the Right when they become hypocrites, but when it comes to the left, the public apparently holds Pelosi, Reid, Durban, Murtha, and their ilk in such low regard that they not only to excuse the far left's hypocrisy, but in fact expect it and reward them. It is no coincidence that when Bush 43 had dismal approval ratings in the thirties, it was still approximately ten times higher than Congress' approval rating.

Anonymous Liberal said...

Dear Voice of Reason:

Yes, polls of Congressional Approval showed Bush was more popular, but that was because the Congressional Republicans were dragging down the Democrats. When the approval ratings of Republicans in Congress were/are polled separately from Democrats, the Democrats were/are in the 40s. Republicans were/are in the teens. The American people know who the bad guys are.

The Voice of Reason said...

Anonymous Liberal:

Absolutely amazing. You have a remarkable knack for spin. Did you work in the Clinton White House? The Democrats control the House. The Democrats control the Senate. The Democrats control the committees. The Democrats control the legislation and the policy debate. The American public dislikes what it sees, and gives Congress a single digit approval rating.... and it is..... Republican's fault! It is that type of myopic overreaching and departure from reality that it ultimately going to be the undoing of President Obama and make Reid and Pelosi forced to back to their hometowns to find honest work. (See Tom Dashle - oh wait, bad example.)

Anonymous Liberal said...

Dear Voice of Reason:

Here are your arguments in response to my posting:

Ad hominem. Ad hominem (b/c for you working for Clinton is a slur). Three non-sequitors (b/c it is irrelevant who controls Congress/Presidency when my point is that Republicans are dragging down the poll #s). Another non-sequitor.

You spew a lot of opinions, here are some facts:

Latest Cong Approval #s: http://www.pollingreport.com/CongJob.htm (you'll note they are not in single digits)

Latest Cong Dems approval #s: http://www.pollingreport.com/cong_dem.htm (you'll note it is 45-45-10).

Latest Cong Repubs approval #s:
http://www.pollingreport.com/cong_rep.htm (you'll note the net -28 disapproval).

I have proven my point without resorting to logical fallacies. Your serve.