Wednesday, May 20, 2009
3rd DCA ROUNDUP
If it's sometime after Wednesday, it's time for our (semi) regular perusal of the opinions emanating from somewhere down south and right near the Fair/Carnival grounds. Location coincidence? We say not.
Nottage v. State, stands for the proposition not being sure as a juror still means you can find someone guilty for murder. Poor Nottage was tried for murder, kidnapping and a bunch of other charges. The jury sent out a note it was deadlocked. The Judge read them the infamous "Allen Charge." The Jury was still deadlocked. Crafty Judge Jimenez sent them home (rather than reading a second Allen charge) and therein lies the hook upon which the 3rd hung their affirmation of the verdict. While the case law is clear that successive Allen charges are improper to the point of being impermissible, (the 4th DCA calls giving the Allen charge "crossing the river of no return" Washington v. State, 758 So. 2d 1148, 1154 (Fla. 4th DCA 2000) ) the 3rd DCA has not adopted that per se rule. And the 3rd DCA has never said (and probably will never say) that having the jury go home (and discuss the matter with their family) after receiving an Allen charge is not error.
Facts ignored by the 3rd DCA: After sending out a second note indicating the hold out juror wanted to be dismissed, the court called the attorneys back to court. Between the time of the note and the court coming into session, the jurors found the defendant guilty. And now Nottage gets to spend the rest of his life in prison thinking "if only they had gotten off their asses a bit quicker and gotten back into court...I wouldn't be here."
Nice bit of jurisprudence. We can all be comforted that justice was done with this verdict.
KW v. State. Judge Rothenberg tosses us a bone. In order to prove first degree petit theft, the state must establish the value of the Res was in excess of $100.00. Conviction reversed. Quota for year: MET.
Zelaya v. State. Judge Marin joins the wall of shame. Case returned for evidentiary hearing on the rule 3 because (everyone now) the record does not conclusively refute the allegations in the petition.
And Judge Marissa Tinkler Mendez re-joins the wall of shame in Palomares v. State. Tsk. Tsk.
And Judge Adrien joins his colleagues on the wall of shame (that's all he needs now) here in Fonte v. State.
Ps. You can still vote in the Adrien poll for a few more days.
Kersaint v. State. Kudos to Joe Klock. Motion to disqualify trial judge GRANTED.
Facts: Def scored NSPS. Had been in custody for two years. Defense requested PSI. Before PSI was returned, the trial judge : a/k/a "the lord's gift to jurisprudence" opined something to the effect of "Well, I won't take a CTS plea. And 15 years it too much. I want this guy to get a prison number. I'm thinking of something around four years."
Talk about prejudging a case. Can't you just see this Judge leaning back in their chair? Eyes closed. Fingers clasped tightly beneath their chin. Contemplating justice. Meting out sentence as only s/he can do because they are "TLGTJ". Sheesh. The 3rd DCA took pains not to list the Judge's name.
So there it is. Lessons for the day- return to court quickly when the jury wants you.