Wednesday, September 30, 2009


It's that time of the week again but lets not get "hypertechnical" (this will become relevant in a bit.)

Hayes v. State stands for some well known propositions: you cannot be convicted for trafficking cocaine by possession and possession of cocaine with intent to sell. You can however be sentenced as an habitual offender for trafficking. Ouch. We guess there are never enough minimum mandatories to satisfy the prosecution and legislature.

Has anybody ever really sat down and upon reflection realized that Florida's sentencing scheme resembles a blind person's attempt to put together a puzzle in the middle of a windstorm? It's a mishmash of legislative pandering to the "get tough on crime" crowd without any recognition that sentences and minimum mandatory sentences overlap and make little if no sense. Far be it from the legislature to trust a judge to evaluate a defendant's prior record and give an appropriate sentence. Nope- better to have someone a few years out of law school in charge of that.

State v. Moreno-Gonzalez: Oh, this is a beauty. The police ask for a search warrant. The police prepare an affidavit for the warrant. The police DO NOT sign the affidavit. Held: "What's wrong with that?" Kudos to Judge Cope for his dissent in writing that "Florida follows a rule of strict construction of the statutory and constitutional provisions governing the issuance of search warrants, so the failure to sign is fatal to the warrant. "

But how does the majority dismiss Judge Cope? They call him "hypertechnical"

Yet, our dissenting colleague would do precisely what the United

States Supreme Court dictated should not be done, that is, invalidate the warrant by

interpreting the affidavit in a “hypertechnical” manner...

We suggest a little experiment for Judges Cortinas and Lagoa: try taking your paycheck to the bank when it is not signed and see what they do with it. Then let us know if a signature requirement is "hypertechnical". Or, maybe we'll just file sworn motions to dismiss that are not signed and argue that the court should consider the merits because a signature is a"hypertechnical" requirement.

How about those "failure to sign a citation" crimes? Are those just hypertechnical as well?

So now warrants don't have to be signed in Florida. Next they won't need them at all, because really, if the police have probable cause, isn't the whole warrant mishagosh just "hypertechnical" mumbo-jumbo?

But just to show you that the 3rd DCA is not a hard-hearted institution; that it's not all "hypertechnical" mumbo-jumbo, take a look at the decision in Benjamin v. State:

Facts: The trial court sentenced the defendant as violent career criminal based on a battery of police officer prior qualifying offense.
Problem: battery on a police officer is not a qualifying offense for the VCC act.
See De La Portilla v. State, 2 So.3d 1125 (Fla. 3rd DCA 2009).

Issue at hand: The defendant filed a motion with the trial court- denied. The defendant filed a second motion- which was denied as procedurally barred as a successive motion.
The Defendant appealed- the 3rd originally denied the appeal because the motion was procedurally barred because it was a successive motion.

Appellate counsel filed a motion for re-hearing...and someone finally took the time to read the file and the defendant's original complaint. You see, there's a real danger in turning clerks loose to write opinions in which the holding is "denied as procedurally barred.". Do a few thousand of those and eventually someone ends up serving 30 years on an illegal sentence. "Woops, sorry pal. How can we make it up to you?"

Lets put this in clearer terms for you. It took this defendant at least two motions before the trial court, and one trip to the 3rd where he originally lost because the 3rd just piggybacked on the trial court's second denial that the claim was successive before someone really looked and said to themselves- "hey wait a sec- this guy's serving 30 years on an illegal sentence!". Kind of sad when you think about it.

Hall of Shame: Judge Thornton here; (we may just not come to his fundraiser unless he straightens up and flies right on this issue that bothers us so much);
And Judge Miller is in the Hall again here (and we can't imagine ever attending a fundraiser for a Judge who wants to be known as "maximum").


Anonymous said...

Rumpole, Let's give credit where it is due. In Benjamin v. State, it was not some "appellate counsel" that filed a motion for rehearing. Rather, the defendant himself filed the motion for rehearing. That's what "in proper person" means. What is interesting, if you look at the docket sheet, is that following the initial PCA the mandate issued on July 20th. Shouldn't today's opinion, then, state that the court is recalling the mandate before it withdraws the earlier opinion?

Anonymous said...

Holy cow! Anyone catch The Ultimate Fighter? Roy Nelson played pattycake with Kimbo Slice and got the TKO in the 2nd round.

What is Kimbo thinking? He's fun to watch on YouTube but c'mon...he wants to be a UFC heavyweight? He is going to get his ass handed to him if he ever makes it to the UFC.

Anonymous said...

You can be such an ass sometimes.

The officer swore that the contents of the afidavit were true before the Judge that signed it.

A check is not an affidavit. A c4 motion requires the defendant to swear to the facts. If the defendant does so before the judge in open court that would also be sufficient even if he doesn't sign. Signing a citation is proof of service and a citation is not an affidavit.

Be fair.

Rumpole said...

Yeah- Me and Judge Cope are both asses.
How about my clients go to probation and just swear they were there. Why have them sign?

Fake Jay White said...

Chad Henne!!!!!!

Anonymous said...


It's Kolsky. But why is that important?

Anonymous said...

Third DCA policies and procedures at page 46 subsection 4(c)(ii): When deciding a case all three members of the panal shall stand at the top of the stairs leading down to the oral argument chambers. The briefs shall be throw in the air towards the bottom of the stairs. The brief/petition that lands face-up shall prevail in the appeal. If both briefs land either face-up or face-down the panal shall issue a PCA.*

*If Judge Schwartz is a member of the panal the two junior members shall attempt to push Judge Scwartz down the stairs with the briefs in hand.

Anonymous said...

Your argument is still ridiculous Rumpole. Next thing you'll say is "What if dont sign the card that goes with the roses I sent my wife? Did I send them or not."

Signing the affidavit under oath is important if the affiant is not before the judge that signs the warrant.

Anonymous said...

judge cope is not an ass. you are however because you take a nasty shot at the majority judges because they don't see the world through your lenses. That is why you are an ass. Plus I agree with 9:50. The issue is did the officer swear under oath before a judge. That is the ultimate constitutional requirement. The absence of the signature does not automatically undermine that fact. Reasonable people can disagree on this one but I think the court is right. I know that Rump is an ass however. Did I say that already?

Rumpole said...

That was a mistake in posting. Not my comment. Sorry. I erased it.

Rumpole said...

Same proposition for you guys- you give me a signed check for a thousand and in exchange I will give you an un- signed check for a 100 thousand. Who makes more money? Who knows why the cop didn't sign the affidavit. I for one don't think playing fast and loose with the 4th amendment is a great idea. You do. And you will continue in your misguided beliefs until they come knocking at your door at 4 am threatening to take away your kids unless you sign a consent to search. Of course you don't really need to sign the consent- just agree to it. The signature is hypertechnical, right?

Anonymous said...

Everyone swears he signed the will leaving his money to me.

The will has no signature.

His kids get the money

No money for me.

Rumpole is right.

Anonymous said...

Lurvey, keep your day job.

Anonymous said...

LOL. A surprisingly simplistic argument from you Rump.

Rumpole said...

It's a surprisingly simple case- from my end- no signature- no valid search.

From your end- no signature- hey why stop there? No warrant but a "good faith belief they would get one" = valid search.

Sadly your world is coming and mine is almost gone, but never let it be said I did not go down without fighting statism every single inch along the way to the police state/gas chambers.

Anonymous said...

I think the "hot associate" is just super duper hot hot hot. Ay que rico!

Anonymous said...

And I think Joe Fernandez has a long tall cool drink of water ASA before him. Muy bonita.

Anonymous said...

Time for an updated hot ASA's and hot APD's list.

Anonymous said...


Sometimes, you let everyone know you are really professor simply by the way you present things. Your forgot to mention the officer swore to the allegations in the affidavit under oath before the judge, initialed each of the pages of the affidavit, and initialed each of the three pages of the search warrant. This is all stated in the first paragraph of the opinion. The hypertechnical reference appears to come from a US Supreme Court case. Why do seek to mislead your readers? The opinion seems to be right. The law of commercial transactions and negotiable instruments has nothing to do with this case. Is that the best you could come up with? Hopefully you don't teach your crim law students such biased and one-sided views.

my two sons said...

Me and my two sons stormed out of a fancy chinese restaurant last night. We wanted some potstickers and decided to order in chinese.

Shu mei please.

"ahh...no shumie here."

"no shu mei shrimp please"

"ahh...verrry funnny no shumie time here, people working."

"we would like some shrimp shu mei please"

"you make joke no so funny no time for shumie time now."

so we got up and left.

Anonymous said...

rump you are as simplistic as an iranian mullah. if it helps defendant's the courts rulings are wise, if they help the state they are bad.

you are intellectually boring me

Anonymous said...

what about the pd intern tearing it up with the milfy judge. anymore info on that?

Rumpole said...

Oh my- I'll be up all night now worrying about you.

Anonymous said...

@10:13:00 PM
To whom is that directed to?

Real Blecher said...

Aaron and Ben are the next Coen Brothers.

Anonymous said...

I got mad respect for the Big Easy E.

Best lawyer in the building.

unofficial blog moderator said...

How messed up is it that Jon Blecher has to post under "real blehcer" because two knuckleheads have appropriated his good name?

Anonymous said...

What is the point of posting the question @11:15:00 PM if you wont answer it Rumper?

Anonymous said...

Has the Shumie been called?

the clash said...

When they kick out your front door,
How you gonna come?
With your hands on your head,
Or on the trigger of your gun.