WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. THIS BLOG HAS BEEN CALLED "THE DEFINITIVE BLOG ON MIAMI CRIMINAL LAW" BY THE NY TIMES, THE WASHINGTON POST, THE POPE, AND DONALD TRUMP WHO ALSO ONCE SAID IT WAS "REALLY GREAT". POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Wednesday, August 05, 2009

3rd DCA ROUNDUP

If Wednesday was Sundae then Thursday is our 3rd DCA roundup day:


There is no crime of attempted battery on a law enforcement officer. There. We said it. It's out in the open. And the 3rd District agrees here in Myers v. State.

Another reason that there is no crime of attempted battery of a police officer in Florida is that if you take a swing at a cop and miss they're going to beat you up so bad that they're bound to charge you with at least battery on a police officer.

But lets think about this for a minute: If you swing at a cop and miss, and the officer sees it and is in fear of your actions, that's assault. But lets say you sneak up behind officer Friendly with a big stick and rear back to hit him with it, but just before you do, officer Friendly's partner grabs the stick, wrestles you to the ground, and then as we said before, both officers beat you to a bloody pulp. There is no assault because officer Friendly didn't see the stick. Why wouldn't it be an attempted battery on a police officer?



Judge Nushin Sayfie joins the wall of shame for doing you know what (or not doing you know what) in Sanchez v. State.
Ditto Judge Soto in Malone v. State.

It's time to get serious about this. We will pay $100.00 cold hard cash plus the costs of ordering the transcript to the first lawyer to say to a judge something to the effect of "are you sure you want to deny this Rule 3 motion without a hearing and risk having Rumpole put you in the Hall of Shame on the blog?"

Ayn Rand wrote that "Contradictions don't exist. If you discover a contradiction, examine your premises."

Our premise: That Judges could learn from the repetitive opinions saying the same thing over and over: don't deny Rule 3 motions without either holding a hearing or attaching a portion of the record conclusively showing why the movant is not entitled to relief.

What we've learned: like an habitual offender who gets arrested while on probation, some groups of people will never learn.

See you in court.


4 comments:

Anonymous said...

Merritt v. State, 712 So.2d 384
(Fla. 1998).

Florida Supreme Court holds:

"The plain language of the statute indicates that the legislature enacted section 784.07 in order to increase the penalties for the enumerated crimes of assault, aggravated assault, battery, and aggravated battery for offenders who commit these crimes upon law enforcement officers. At the time the enhancement statute was enacted, the legislature had created the four enumerated offenses in other statutory provisions. The enhancement statute contains no enhancement or reclassification of penalties for the offense of attempted commission of the enumerated offenses; therefore, attempted assault and attempted battery as well as attempted aggravated assault and battery of a law enforcement officer are nonexistent offenses."

Therefore the answer is, blame it on the legislature. If they wanted to enhance attempts, they would have codified that intent.

Likewise, only attempted first degree murder of a LEO is permitted, thus defense counsel is not deficient for asking for a crime like attempted second of a LEO as a lesser since that also would be asking for a nonexistent crime. State v Iacovone, 660 So. 2d 1371 (Fla. 1995). They could ask for just attempted second period, if the facts permitted, I suppose.

There, you can say it, too much case law early in the morning.

Anonymous said...

Ex-Tampa judge set to plead in Federal Court. He resigned from the 2nd District Court of Appeal in February, months after a stripper came forward claiming he helped her hide from creditors by letting her put money into his bank accounts.

Anonymous said...

Anyone who refers to Ayn Rand is insecure and overcompensating for his mediocrity. Stop trying to impress me, state hack

Anonymous said...

SOTOMAYOR confirmed