UPDATE: We are learning that famed DUI lawyer Richard Essen passed away Monday. Mr. Essen was a pioneer in establishing a specialized DUI law firm and his firm produced many superb DUI defense attorneys including Bobby Reiff, Jonathan Blecher, top Broward DUI Lawyer Carlos Canet, and (now) Judge Joe Fernandez and many others.
And since it's Wednesday it's time for our highly acclaimed 3rd DCA roundup which has been on hiatus for a few weeks.
Ever wondered what would happen if after a bad night at the Miccosukee casino you got upset and drove your truck into the casino through the doors?
Our hero Leonard Marrero in Marrero v. State, did just that and got charged with criminal mischief. According to the case, the rule in deciding damages for criminal mischief is measured by the cost of repair or replacement. If the state does not prove a value, then a conviction will stand only for the lowest level of the offense- a second degree misdemeanor. However, the court noted that " It has been said that “a trial court may conclude ‘that certain repairs are so self-evident that the fact-finder could conclude based on life experience that the statutory damage threshold has been met."
Thus, when the state introduced the video of poor Leonard driving his truck into the casino, the court could reasonably conclude the damage was in excess of $1,000.00.
Rumpole notes: Out the door goes the long accepted maxim that the state must prove each and every element of the crime beyond a reasonable doubt. So what else is new?
Judge David Miller joins the hall of shame here.
8 comments:
Rump:
I believe Carlos Canet, one of the finest DUI attorneys in Broward, also worked for Essen at one time.
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As I recall, back in the day, Richard Essen did roll in to represent Channel 7's Rick Sanchez before County Court Judge Marc Schumacher. Theory, I believe, was that Rick, now with CNN, got in an accident on his way home from the Dolphins game, left the scene of the accident, went home, was so distraught that only then he had to down a few (called someone?), then returned, and was subsequently arrested.
Isis may even have been the prosecutor on that one. Breakdown I believe. WH on the LSA.
Could be wrong on this, just clearing out the memory closet.
I believe re Marrero the law supports a finder of fact making a determination as to whether the damages are proven beyond a reasonable doubt even if Rumpole disagrees. Proof comes in forms other than invoices and sometimes even a judge may rely upon common sense.
I believe Aprendi and it's progeny have done away with allowing Judges to make findings outside of the presence of a jury. Since the value of the mischief can enhance the sentence, I believe Apprendi requires the state to plead damages and prove them beyond a reasonable doubt.
It was the jury after all that found the value by their verdict. The judge only ruled whether they might legally do so by the evidence (or lack thereof) presented.
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