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.