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

Thursday, October 15, 2009

3rd DCA ROUNDUP

Hard times baby, well they come to tell us all
Sure as the tickin' of the clock on the wall
Sure as the turnin' of the night into day...
Bruce Springsteen, Waiting on A Sunny Day.


State v. Outler, Judge Richard Yale Feder makes an unlikely sojourn (much like the "sojourn" attributed to the Defendant by Judge Shepherd in the opinion: "...long before Outler began his suspicious sojourn down the Palmetto Expressway.") on to the pages of a criminal appellate decision. Feder granted a motion to suppress (bless his heart) on the following facts: The police intercept the delivery of a crate. They think it has marijuana in it. A dog does not alert. But still.... Outler comes to pick it up, they follow him on his "sojourn" home. The Feds were part of this cast of characters and they observe Outler speeding, at which point Judge Shepherd notes: "apparently, federal agents do not have the authority to make traffic stops"; but based on the speeding, erratic driving indicative of the Defendant believing he was being followed , and because one agent noted "hey, I've seen marijuana delivered in crates just like this", it all adds up to an investigatory stop, which is enough to get Judge Feder reversed.


Parker v. State: Score one for our PDs who get Schlessinger reversed on allowing introduction of "highly prejudicial" collateral crimes evidence.

The case features the testimony of "Aunt Griffin" and a fairly good definition of inextricably intertwined evidence. Why is this so important? We have noticed many judges over the last few years have taken to stating that they are finding that the collateral crimes are both admissible as Williams Rule evidence AND as inextricably intertwined. We trace this proclivity to a few Judicial Seminars where betwixt and between the margaritas and shrimp cocktails, our robed readers were duly instructed that when faced with a decision on collateral crimes- to label the evidence as Williams Rule AND inextricably intertwined.

Alas this strategy has been brought to a well deserved halt by Chief Judge Ramirez and Auntie Griffin: "As we stated in Dorsett, evidence is inextricably intertwined if the evidence is necessary to: (1) adequately describe the deed; (2) provide an intelligent account of the crime(s) charged; (3) establish the entire context out of which the charged crime(s) arose; or (4) adequately describe the events leading up to the charged crimes(s)."

And finally Judge Adrien can't seem to get this sentencing thing down at all. He's been reversed again, this time in State v. Williams -

"The State alleges that the trial judge erroneously sentenced the defendant pursuant to habitual offender and prison releasee reoffender enhancements, but did not provide habitual

offender or prison releasee designations or oral or written reasons for the sentence

which constituted a downward departure from the guidelines. We agree and

reverse. ....Proof of the release date, evidence of which the trial court did not give the State an opportunity to present, is an essential element for sentencing pursuant to the prison releasee re-offender act. State v. Garcia, 923 So. 2d 1186 (Fla. 3d DCA 2006) (holding that trial court is required to afford State sufficient opportunity to present evidence on defendant’s qualification as prison release reoffender)


For all you prosecutors who read the blog and send me endless emails complaining that I never call out a judge who makes mistakes and prejudices the prosecution, here's proof you're wrong. What kind of judge holds a sentencing hearing and doesn't give the prosecution a chance to prove the elements of an enhanced sentence?


What kind of judge does not provide written reasons for a downward departure?


What kind of judge ostensibly sentences a defendant to habitual offender and prison releasee re-offender sanctions but then doesn't provide those sentencing designations in the commitment papers?


Well so far the Florida Supreme Court doesn't really want us to answer that question while holding a license to practice law, so suffice it to say that it currently is a judge with two- and -counting - opponents in the upcoming election, which can't get here soon enough.











16 comments:

Doug said...

To Whom it May Concern,
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to know that the Traffic Ticket Team, www.trafficticketteam.com, who's main
Lawyer Jason A. Diamond did a speeding traffic ticket for me and he was amazing.
He got my ticket dismissed. If you ever get a traffic ticket, call Jason Diamond at
the www.trafficticketteam.com, his office is great.
Sincerely,
Doug Johnson
Davie, FL

Anonymous said...

mullah omar as spencer eig

Anonymous said...

mazel tov for finally calling out a judge who screws over the sao.

Never thought Id see the day

Anonymous said...

What's with all the Fucking colors! Geezzz... bold text will do just fine, I feel like kindergarten all over again, Red, Blue, Green when will it stop!!!

Real Fake Captain Wannabe said...

Money talks, bullshit walks. The quarterly reports are in (first $ is money raised past quarter/second # is total money raised):

OPEN SEATS

Group 21:
Miguel M. de la O -- 25,716.40/114,793.45
Patricia A. Kopco -- 0/10,000.00

Group 41:
Milton Hirsch -- 18,085.00/157,518.26

Group 62:
Robert Kuntz -- 7,765.00/34,246.00
Juan-Carlos "J.C." Planas -- 500.00/3,300.00

INCUMBENTS WITH OPPOSITION

Group 45:
Peter Adrien -- 400.00/3,370.00
Samantha Ruiz Cohen -- 5,523.00/94,631.00
Jeffrey David Swartz -- 0/2,410.00

Anonymous said...

FAKE RUMPOLES SAYS:

For all you prosecutors who read the blog and send me endless emails complaining that I never call out a judge who makes mistakes and prejudices the prosecution,

WRITE YOUR OWN DAMN BLOG

the real Sunny said...

I'm waiting, waiting on a Sunny day,
Gonna chase the clouds away....


He wrote that song for me, you know.

Anonymous said...

your one-sided description of the ostler case was so pathetic. when i read your piece, and then the opinion to see how ridiculous this was, all the facts omitted from your critique made it clear that this was, frankly, a slam dunk the other way. for gosh sakes, rump, don't make all your readers out to be idiots.

Scott Saul said...

For you County Court practioners and speedy trial freaks, you may want to take notice for some good caselaw precedent.

In Broward, before Judge Stacy Ross, I filed a "NOE". I abided by all the rules of procedure but did not know about an administrative order mandating filing a NOE with the Judge's chambers. Consequently, Ross struck my NOE.

I took a writ. How can a local/administrative rule modify a statutory rule of procedure?

19 months later, Judge Robert Rosenberg reversed Ross' ruling and ordered a discharge of the case.

Not a bad thing to keep in mind in case the issue comes up.

Hendel v. State 08-25730 CACE/08007313TC10A

Anonymous said...

The State needs to appeal Parker. The dissent has it right. The majority opinion fails to address the dissent's argument that the prior bad acts were admissible under 404 to rebut defendant's testimony of mistake.

Fake Alex Michaels said...

Vhen I argue at Third DCA, I not argue caselaw. I threaten judges, tell them I veel shove their heads us their asses. I show them picture of huge Romanian bear who like to eat people. I pound podium many times, very hard.

And at very end, I always say:

The State's case EEEES BULSHEEEEEEEEEEEEEET!!!!

Works every time.

Anonymous said...

Rump,

Good to know that your blog is now being used to advertise ticket attorneys...you allowed that post why?

Signed,

You're lame

Anonymous said...

kristin bell as miranda

joy behar as lando

raul julia as reemberto diaz

fab moravan as adrien

appellate spy said...

Rump, looks like Shumi & Freedman were on the winning side of some civil matter?

Transportation Casualty Insurance Company, Appellant,
vs.
Giraldo De La Cruz, Jorge Luis Sanchez, et al., Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Pedro P.
Echarte, Judge.

George, Hartz, Lundeen, and Charles M-P George, for appellant.
Beckham & Beckham, and Pamela Beckham; Rick Freedman & Associates,
and Frederick P. Freedman; Alan J. Shuminer, for appellees.

Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.
PER CURIAM.

Affirmed.

Hurricane Rick said...

As insurance companies well know, "Hurricane" Rick Freedman is an extremely dangerous man!

Anonymous said...

Al Pacino as Peter Lopez

Robert Denaro as Julio Jimenez

Pink as Jacqueline Hogan Scola

Capt Lou Albano as Scott Saul



And special guest star David Spade as "Young Jon Blecher"