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

Friday, February 05, 2010

3rd DCA ROUNDUP SUPER BOWL EDITION

It's that time of the week (after Wednesday) and with the Super Bowl looming, what better time to discuss and dissect the Third District's kerfuffles?

In our only case this week Judge Nushin Sayfie catches a reversal in a downward departure case.

In State v. Ford the Defendant pled to grand theft of a vehicle. Based on his prior record, his guidelines were 21. 055 months (what's .055 months btw?). However, because in the words of the Judge "the defendant has a job" she granted a motion for downward departure based on the victim's need for restitution and sentenced the defendant to 2 years probation. But the state's prison lust was not satiated in this case and they appealed.

Held: A downward departure under Section 921.0026(2)(e) (Victim's need for restitution) must be based on the court's specific findings that the victim's need for restitution outweighs the need for imprisonment. Since the court in this case based the downward departure on the defendant having employment, it fails the 3rd DCA's scratch and sniff test.

Lesson learned: The road to hell (and reversal) is paved with good intentions Judge Sayfie. Nice try though.

SUPER BOWL WEEKEND:
Guaranteed coin-flip lock coming up this weekend, plus a host of other super bowl props. In order to get away from the Super Bowl crowds, (can't get a decent seat at Joes or Mortons or the S&S) we have repaired to a small resort outside of Las Vegas that has the unique ability to allow wagering on each and every play of the game. They give you this little hand held machine; you load up your account with money....and off you go.

Our picks this weekend and a moving farewell letter on Monday (not from us. Much to the chagrin of local judges and prosecutors, we're not going anywhere for a while.)

IMITATION IS THE SINCEREST FORM OF FLATTERY:

On Wednesday February 3 (our last post) we commented on Judge Lebow's actions in tossing the murder case when the ASA refused to make an opening statement or call witnesses. We suggested that Lebow overreacted; we posited that Lebow had other remedies like holding the ASA in contempt; we closed with the long standing principle that the law favors decisions on the merits.





17 comments:

Anonymous said...

When life hands you lemons, squirt the juice in your eye. The stinging sensation will stop your whining.

Anonymous said...

Why on earth would the state take an appeal on a grand theft vehicle case?

Anonymous said...

Can someone explain to me why the 3rd DCA said:

"For the foregoing reasons, we vacate the departure sentence imposed and
remand for sentencing before a different judge, where the defendant may elect to
either withdraw his plea or be resentenced within the guidelines."

Why did they remand to another Judge? Is that normal in all reversals? Odd, no.

Anonymous said...

Judge Sayfie needs to realize she's not a PD anymore.

In the know said...

you have NO IDEA what you are talking about - u are showing your ignorance. NO Mr Rossman could not have put on any witnesses to wait until evidence arrived because there were numerous pre trial rulings/motions in limine that both the state and the defense had to still argue to the "Judge" and until they had those rulings which the "Judge" did not schedule to be heard until then, no witnesses could testify as they would not know what was going to be allowed to be said to the jury! No openings were possible either for the same reason until the Judge personally saw the evidence and then made proper rulings. all of this was pointed out to the "Judge". re: the evidence the clerks office was responsible for getting back - this clerk got mr rossmans order a week prior and she admitted she did nothing to follow up and assure it came back as was her job she also never told the prosecutor she didn't follow up to assure it was here. his mistake for assuming the clerk did her job! the judge dismissed this case after 3 in the afternoon - she was only gong until 5 that day so the continuance for the next day would have only been taking away two hours of trial time to wait untilt he next day when evidence was being delivered by clerk to rectify their screw up. know allll the facts before you slam the prosecutor who did his job in trying to give the victims a fair trial which you don't care about!

Anonymous said...

9:47- It's common for the 3rd DCA to send the case to another Judge when they reverse on a sentencing issue. I have almost always seen it when the defense gets the judge reversed on vindictive or illegal sentencing issues- under the premise the judge is now an aggrieved party or may be upset on being reversed on a sentencing issue. It is much rarer to see it when the state takes an appeal- but it is for the same reason: the state is entitled to a fair unbiased sentencing as well.

As to why they did it- the state likes to think that if they do this a few times they will whip the judge into thinking like they do and siding with them.

Hopefully Judge Sayfie will not let this affect her one bit.

RFB said...

Me thinks Mayo has just a bit of "splainin" to do. Similarities are remarkable. Rump has been taken for a ride by a columnist.

Anonymous said...

If this guy scored Florida State Prison for stealing someone's car, then I think he deserves to be in prison. Have a job is a reason for a downward departure? Give me a break. If I saw someone trying to steal my car, I'd put a bullet in their head, not spank them and put them on probation.

Anonymous said...

ASA's always whine "(def) needs to be on probation so s/he can pay restitution" when you're trying to get CTS, short time, or shorter probation.

You can always get a HARSHER sentence with restitution as the basis, but try to get a little leniency for the same reason...

Par for the course, the state always wants to have their cake and eat it too.

Eat it, I say.

Anonymous said...

All the new judge has to do is make the requisite finding that the victim's need of restitution outweighs the need to put the defendant in prison and re-impose the same sentence.

ASA's often claim respct for the "objections of the victims" or "the wishes of the victims" as their reason for making ridiculous or unreasonable plea offers. However, in this case, the needs of the victim didn't count for much.

An scenario that plays out sometimes in county court is this: state offers a plea that includes court-ordered restitution in a case (like an LSA) where the restitution can be made part of the plea only by agreement of the defendant because there is no causal relationship between the criminal offense and the damages (which resulted from the non-criminal infraction only). If the amount of restitution is often a few hundred bucks, the defense is willing to pay full restitution immediately in exchange for a nolle prosse. Smart ASA's that have the victim's needs at heart accept this deal. Dogmatic and close-minded ASA's will not accept it and the case goes to trial where, if defendant loses, restitution cannot be imposed, and the money that would have gone to the victim goes instead to pay court costs.

Anonymous said...

Will Rump sue the columnist and risk revealing his identity?

Need a SB winner said...

Rump, time to rise to the moment and pick me a winner on Sunday. I read your column that first weekend in September. You picked the Saints for third in their Division and the Colts second. You had the Jets and Bengals for last place. You also picked the Cowboys for third place and had probably the best team, the Vikings in second. To your credit, you did pick the Chargers and Cardinals for first place. What happened to your all Pennsylvania Super Bowl. Eagles out in round one and Steelers watched the playoffs from their sofa.

So, do I take the Colts and lay the four points and throw in the over? Or does Drew Brees and 43 years of frustration end for the Saints on Sunday at JRS?

Show me some money

Anonymous said...

L&L strike again-Panunzio no jail on felony Dui serious injury.

fake blecher said...

Yeah- like you're one to talk. You've been banned from multiple blogs across this state for plagiarism pure and simple

Anonymous said...

Funny how if a victim prioritizes restitution many of you will claim that they're nothing but money-grubbing whiners who should pursue their claims in civil court.........except when it can justify a downward departure. Laughable.

The prosecution's primary responsibility is not getting the victim paid, it's protecting the community. The victim can't control the case (witness the craziness in domestic court as a perfect example of why).

I'm all in favor of appropriate downward departures, but, if you give a damn about the community, you shouldn't want judges departing downward for nonsense reasons like "he has a job."

It's nice to win cases, but we all (along with our friends and families) spend too much time here to think only of the cases. I'd like to be able to park my car, go to sleep at night, go out for a nice dinner, etc., without having to worry about some jerk stealing my car, burgling the house or robbing me.

BTDT

Anonymous said...

Maximum Morphonios would have JOA'ed the case and then thrown Rossman in jail. Grow a pair Rossman, will you! When life serves up lemons, make lemonade.

Anonymous said...

Sorry, but Rossman looks very bad in all of this. I am more upset with his unpreparedness (motions in limine without any written motions?) than the judge's response. His actions were totally unreasonable and ultimately sealed the cases' fate. I think a bar complaint should be filed against Rossman for his willful refusal to proceed when ordered to do so by the judge.