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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."
Or words to that effect, at least this week. 


26 comments:

Anonymous said...

So Rump... why don't you tell us how you really feel about the 3rd?

Anonymous said...

Miss California for SoFla U.S. Attorney. She is soooo hot! She can do anything! Gotta luv those California girls!

Anonymous said...

Rump - the concurrence in Williams was QUITE a bit stronger than the majority. Don't you think THAT portion should be posted? It still amounts to the Court shaking their finger at the state and saying don't do it again - but still, at least the language is stronger.

Anonymous said...

Tell me it ain't so. Alan Schwartz being "honored" ?Give me a break, what about IN RE SCHWARTZ and the manner in which he treated Professor Ronner as well as others through out the years. Besides Lapidus and frankel I can not imagine anyone else attending.

Anonymous said...

Karen Mills-Francis for U.S. Attorney.

Anonymous said...

If you say marriage should be between a man and a woman, you get called a dumb b****.

Whatever happened to tolerance? The heterophobes are on the rampage...

Anonymous said...

Rumour has it that Judge Peter Adrian Camacho has asked to be appointed as U.S. Attorney for the Southern District.

Anonymous said...

rump you are such a whiny little bitch. if the third reverses a denial of a motion to suppress you jerk off all over your computer but if they do the opposite you start whining like a little bitch. you sound like all these republicans whining fascism, socialism communism just cause the election didnt go their way.

grow up

Anonymous said...

Agree with 4:48. The concurrence in Williams was remarkable and should be posted. Judge Ramirez going to start publishing the names of the prosecutors. Can you say paper trail for the Florida Bar.

Rankmaster said...

The Rankmaster believes the yet to be published 5th DCA roundup is better than the 3rd DCA roundup.

Anonymous said...

Did you notice that Prosecutor on the Bench Rothenberg did not publish the illegal arguments by the prosecutor? At least the Third is consistent.

Anonymous said...

7:28 am - the concurrence cited the illegal and improper arguments. I agree that the majority should have also.

Anonymous said...

The concurrence in Williams is worse than the majority. The concurrence acknowledges that the prosecutor completely fabricated portions of the closing argument, and that the trial court was complicit in this fabrication. But the end result?
No problems. The clear message is that prosecutors and trial judges are free to make stuff up in Court.

Anonymous said...

Who was the prosecutor who made that argument? It was in ROC court with Judge Jimenez.

Anonymous said...

I agree with 9:59 completely since Rump is a silly little whiner. He never acknowledges the overwhelming evidence of guilt as the reason why a reversal was not required. He pities the little attempted murderer while at the same time castigating the prosecutors. real judges have to balance things to render justice, and here justice required affirmance. That being said, i agree with the other comment about how judge rothenberg is such a prosecutor apologist. Thank god for Judge Ramirez who calls them as he sees them. But of course Rump ignores that since he is too busy worrying about the shooter's poor upbringing that caused him to fire multiple gunshots at people. give me a break.

Anonymous said...

Lazy police work is again rewarded in State v. Arango at the expense of the Fourth Amendment. Some of us will miss it when it's gone.

And the concurrence in Williams is "full of sound and fury, signifying nothing."

Anonymous said...

i am sorry but the arango case, obviously from the description of the case in the opinion and without the benefit of additional facts that the defense would have raised, is not a close call. it is clearly correct given the supreme court's cases about reasonable suspicion and the officers' own observations. and ultimately the officers did what we would want them to do - get a warrant for the search. there is no fourth amendment violation since the search and seizures were "reasonable" and the court issued a "warrant." you defense lawyers take such exagerated positions that you really lose credibility. even if rump is right that the third dca bends over backwards for the prosecution, which i can't dispute involving certain judges, you miss the mark when you don't put things in context. ANY appellate or federal judge would agree with Arango. Wrong example to point to.

CAPTAIN said...

THE CAPTAIN REPORTS:

BREAKING NEWS.....NEW JUDGE ALERT .....

For the first time in over a year, the JNC will get back to work in Dade County. (Was the last appointment in this County Flora Seff ???)

County Court Judge Ada Pozo has resigned effective May 28, 2009.

If I am not mistaken, I believe she beat former County Court Judge Jeffrey Swartz - who coincidentally filed last week against sitting Judge Peter Camacho Adrien.

If you want to be a County Court Judge, get your Application in to the JNC.

Of course you should also watch Tallahasse closely this coming week as they decide whether to cut Judges' salaries by 4-5% along with the rest of the State employees.

CAPTAIN OUT .....

Anonymous said...

Why did Pozo resign? I wish her the best, she was nice to appear before.

Anonymous said...

Could Ada be headed for Univision/Telemundo duty? Who will take over La Corta de la National in Hialeah?

Anonymous said...

When did the State Attorney's Office start charging money for providing copies of audio and videotapes?

Anonymous said...

Just a thought:

I wonder if defense attorneys ever make improper comments in their closing arguments?...

Hmmmmmmm...

I wonder if their clients are ever acquitted in spite of the trial Court's instruction to "disregard."

Hmmmmmmmmmmm....

No 3rd District Court of Appeals opinions (or scrutiny for that matter) on these......no?

I suspect you would call that "great lawyering" and congratulate these "defenders of the Constitution."

Your hypocrisy grows tiresome. You sSanctimonious windbags that chime in make me reach for my barf bag.

Anonymous said...

alex acosta is on his way to becoming FIU's College of Law Dean. I heard it from an insider. He is hiring Roy Black to teach criminal law and evidence. Good move.

Anonymous said...

Roy Black already teaches a seminar at UM. (Which I took and enjoyed). I'm wondering if he'd take up teaching a class fulltime though and take time away from his practice. As it was we had Srebnick fill in for quite a while due to Black trying a case in the middle of the semester.

Anonymous said...

2:52 "ANY...court"? That's a bold statement, friend. But, for the sake of argument, we can pretend it's true. That was the point of the post regarding Arango. That little SCOTUS case from Ohio provided an exception to warrantless seizures: cops investigating crimes AND believing a suspect was armed and dangerous. Officer safety while investigating a crime is a legitimate objective to stop and frisk someone; one without the other, not so much. Convenience for the government is most assuredly not the reason the Fourth Amendment was written. But courts and legislators have essentially turned probable cause on its ear. Many of us want convenience for our babysitters, Constitution be damned. Take a peak at Navarro, cited in Arango, for police officers working within the confines of the Fourth Amendment: warrant obtained, suspects leaving the house with garbage bags and boxes, reasonable suspicion based on the fact that the cops knew a warrant had been issued. And prior to pulling Arango over, it is debatable (admittedly not so much in the Third District) whether the cop had enough probable cause to even get the warrant. Did the cops here have probable cause to grab Arango without one? Of course they did, according to the cop who was "suspicious" about the premises. But hey, some of us are fine with that.

Anonymous said...

Rumple
Every week FLW has caseafter case where the State did not doa good jod and committed error. But the Courts created harmless error as away to saybad boy/girl prosecutor, but the Defendant whosuffered from the State's misdeeds still has to serve the time. A perfect example of the winkand we except it in State Court.
D.S.