Wednesday, May 20, 2009


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. 


Anonymous said...

Judge Jimenez? Would he determine a sentence without a PSI or a sentencing hearing? Say it ain't so...

Anonymous said...

It appears that Judge Ward was the judge on Kersaint's case (as per the clerk's website).

CJIS will reveal all said...

The DCA may have been biting its tongue in not revealing the trial judge, but not CJIS.

Robinsen Kersaint

Case appearing in front of former criminal defense attorney Diane Ward, but the docket suggests the trial may have been sent to former criminal defense attorney Julio Jimenez.

In either case, wouldnt Jimenez or Ward have been arguing for a CTS plea just a few years ago? Instead, 5 years in prison for a NSPS defendant who has two years in custody. Ouch

CJIS out.

Anonymous said...

It appears the trial judge was Julio Jimenez: F-07-000174-B

Anonymous said...

Whoa, that sounds an awful like His-Less-Than-Honorable Peter Adrien. Leave us not foget he who suckered a defendant into pleading straight up to the court and then gave the guy 30 years on a 10 year State offer.

What say you robed ones, why don't you sign on and disavow. That way we can figure out which one it was. Or better yet, Klock tell us who it is.

Anonymous said...

It said the prosecutor was some guy named Mathew Baldwin, who is that, the younger brother of Daniel, Alec and William?

And that the case came from Diane Warrd but went to Julio Jimenez?

I guess this Joseph P. Klock, Jr can pat himself on the back for this one. First he gets a jury to come back with lesser included offense on traffiking. Now he get a re-sentence and a new judge because Jimenez commited to a sentence before the hearing and his client is scoring non-state prison.

Ain't that a-

Anonymous said...

Re: the Kersaint case, CJIS indicates that it is in Judge Ward's division, but the case docket indicates that Judge Jimenez was the sentencing judge. Personally, I am not surprised he would say and feel something like that.

South Florida Lawyers said...

Joe's handling a drug trafficking case in state court?


Anonymous said...

The case where Adrien gave the guy 30 on a 10 year offer was one that Yale Galanter handled. Why would an attorney who is supposed to be so great ever agree to do something like that.

Matthew Baldwin is not a nice guy and not the most ethical prosecutor I've ever met.

Anonymous said...

That's not a fair shot at Matthew Baldwin, in the cases I've handled with him, he's been more than fair. I seriously doubt he encouraged Jimenez to engage in that type of behavior.

Lay off Baldwin, he's one of the good guys.

Anonymous said...

Rumpole, it is time to apologize to all those who you falsely accused in the past. I think you know what we are talking about. A quick review of your historical has proven you wrong many times.

Be the bigger man and do the right thing.

Anonymous said...

In Kersaint, the guy had gone to trial and been found guilty. Judge Jimenez had heard all the facts, which is more than all the bloggers taking pot shots at him. Maybe he should have waited for the PSI, but it seems a bit ridiculous that it gets overturned in order to wait for a PSI no one pays attention to anyway.

Matt Baldwin is straightforward and ethical. I'd rather have him than one of those ASA's that barely cares as long as they can leave by 2.

Anonymous said...

Okay who let Matthew Baldwin's mom on the blog. Straightforward and ethical? Please.

Knowing Baldwin, he probably asked for the maximum and stomped his foot when Julio Jimenez only gave 5.

All on a guy scoring NSPS. Its that same trial tax mentality all the time.