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Wednesday, April 22, 2009
3RD DCA ROUNDUP
If it's Wednesday, then you can get a Sundae at Carvel and read our exclusive summary of this week's 3rd DCA's criminal opinions (and we mean that just the way it reads).
Ubila v. State- here's a guy who took three (count em, 3) pro se motions to correct sentence to the 3rd DCA for concurrent 15 year sentences with 10 year min mans as a violent career criminal. Twice he won in the 3rd, and twice he was re-sentenced to the same sentence. The 3rd DCA, clearly tiring of the yo-yo, vacated Ubila's violent career criminal sentence for his grand theft conviction (and affirmed the same sentence for his burglary conviction) holding that "theft does not qualify as a primary or predicate offense" for violent career criminal sentences. Lesson: give the 3rd enough chances and they'll figure out a way to affirm your sentence.
In Williams v. State, we see everything that is wrong with appellate law and the 3rd DCA. The court admonished the prosecutor (there's a lot of that going around lately) for an improper closing argument :
"[W]e again find it necessary to admonish the prosecutor and remind all lawyers who practice in this state, that closing arguments must be confined to the evidence in the record or which can reasonably be inferred from the evidence....
Trial attorneys must avoid improper argument if the system is to work properly. If attorneys do not recognize improper argument, they should not be in a courtroom. If trial attorneys recognize improper argument and persist in its use, they should not be members of The Florida Bar.”
However, this being the 3rd DCA, they affirmed the conviction because it was a murder case, and those are bad. So now the defendant serves a life sentence, happy and secure in the knowledge that although the prosecution did not play by the rules to secure his conviction, they've been properly admonished.
In State v. Arango, Judge Larry Schwartz was reversed by the 3rd for suppressing evidence and granting a motion to dismiss. "Stop!" said the 3rd. "We just won't tolerate that kind of judicial behavior."
The 3rd was in top form this week. 10 reported decisions, 9 cases affirmed for the state and the one reversal was on an appeal by the prosecution.
The 3rd DCA: "Abandon hope all ye defendants who appeal here."