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Thursday, February 11, 2010

3rd DCA ROUNDUP VALENTINES EDITION

Before we get to our roundup, a quick briefing from the Colonel Of County Court:

The Colonel reports:
Alright, settle down. Just a quick heads up. The last few Mondays have seen a significant increase in traffic in county court. Most courtrooms are overflowing with defendants, witnesses, cops and lawyers. This week we have the perfect storm brewing: A Tuesday trial day with no soundings and a Monday holiday. This Tuesday is going to make most of us wish we were in Baltimore in bikini. It's going to be crowded, rough, and frustrating- and that's just getting into the building. Ok. You've been given a heads up. Act accordingly. And remember- there's gold in dem dere misdemeanors.

Thank you Colonel. Tuesday is shaping up to be a challenging day.

We start off our 3rd DCA review with a decision that candidly surprised us.
Query- what's the maximum non-life prison sentence a defendant can receive for a life felony? We haven't really ever thought about that question, but at first blush we probably would have said 99 years.
Wrong.

As Judge Rothenberg writes in Jordan v. State , the maximum non-life prison sentence a defendant can receive for a life felony is 40 years. So you either get life, 40, or less, and thus Judge Pinero catches a reversal (although it was a negotiated plea) for sentencing a defendant to 60 years for second degree murder with a deadly weapon.

We learn something new every time we write this blog.

Mistrial Mayhem!

In Douglas v. State, the court granted the writ of prohibition against bringing the defendant to trial after a jury was previously sworn and a mistrial was declared over the defenses objection when the DOC would not bring the defendant to court because of a quarantine issue. On the particular facts of the case- kudos to the defense attorney (probably a PD) who continually objected to the court declaring a mistrial without first being given the opportunity to speak with his/her client.
Furthermore, the lesson learned is that the method of having the bailiff chat with the jurors off the record and then report a few of them cannot reconvene a few days later does not rise to the high level of "manifest necessity" required for a re-trial after a mistrial. The opinion doesn't say which judge so blithely declared a mistrial under these circumstances.

And here's some inspiring language: The defendant has a right to have his trial completed by a particular jury of his choosing. Thomason v. State, 620 So. 2d 1234 (Fla. 1993). “Doubt about whether the mistrial is appropriate is resolved ‘in favor of the liberty of the citizen.’ The State must demonstrate ‘manifest necessity’ for the mistrial . . . .” Id. at 1237. “[A] mistrial founded solely upon the convenience of the court and the jury is certainly not manifestly necessary.” Cohens v. Elwell, 600 So. 2d 1224, 1226 (Fla. 1st DCA 1992) (quoting New York v. Michael, 48 N.Y.2d 1 (1979)). The State has a “heavy burden to exhaust less drastic alternatives before declaring a mistrial over the defendant’s objection during a criminal trial . . . .” Torres v. State, 808 So. 2d 234, 235 (Fla. 2d DCA 2001).

SHOW DAVID MARKUS THE MONEY!
Cause he didn't get it or any Valentines love in State v. Nelson. Held: The trial court does not have the authority to tax costs against the State Attorneys Office. Period. Veteran Appellate ASA Joel Rosenblatt gets the win here.

That's a wrap from the 3rd DCA. Be careful on Tuesday- tell your clients to show up early. Have a great long weekend. No more football until August (there's always the combine and then the draft.)

22 comments:

Anonymous said...

that's david s. markus the state guy; not david o. markus the guy who got $600k from the feds.

CAPTAIN said...

THE CAPTAIN REPORTS:

DOUGLAS V. STATE .....

According to the Clerk's web site, the Judge is David Miller and the Public Defender is assigned to the case.

Cap Out ...

Anonymous said...

Cap what were the charges?

Anonymous said...

3 Miami-Dade cops face perjury indictments

http://www.miamiherald.com/news/southflorida/story/1475862.html

Three police officers face a federal indictment alleging they lied about a traffic stop involving the arrest of a convicted felon who allegedly hid a revolver under the hood of a car.
By JAY WEAVER
jweaver@MiamiHerald.com
Three Miami-Dade Police Department officers are expected to be charged Friday with lying in federal court about a traffic stop last July that led to the arrest of a convicted felon with a loaded firearm, their lawyers said.

The three officers -- patrolmen Al Dodge and Jorge Gonzalez and their supervisor, Sgt. Waell Farraj -- face an indictment charging them with committing perjury and obstruction of justice during a key hearing in the federal prosecution of Pedro L. Marte.

The officers' defense lawyers condemned the U.S. government's case, calling it justice turned upside-down.

``Bottom line: I think they're dead wrong in indicting them under these circumstances,'' said attorney C. Michael Cornely, who represents Dodge.

Marte, 25, was arrested by the two Miami-Dade patrolmen on July 30 after they received a tip from a confidential informant that he had hidden a weapon in the engine compartment of a 1992 Mercury Marquis. The officers pulled over the car, in which Marte was a passenger, after the driver ran a stop sign at Northwest 27th Avenue and 27th Street.

During a search of the vehicle, the officers found a Smith and Wesson .38 caliber revolver, loaded with four bullets, wrapped in a black cloth next to the vehicle's battery, according to a criminal complaint by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives. Marte told the officers that the gun belonged to him, the complaint said.

Marte, who has two state convictions for cocaine trafficking, was indicted in August on federal charges of possessing a firearm as a felon. But his defense lawyer challenged the charges, saying the officers conducted a ``warrantless search'' of the vehicle because they did not read him his Miranda rights before questioning him.

At a suppression hearing in late September, the officers testified about the basis for the traffic stop, the discovery of his firearm, and his arrest. Afterward, the U.S. attorney's office dismissed the indictment against Marte. U.S. District Judge Cecilia Altonaga then referred the matter of the officers' testimony to federal prosecutors, which led to the indictment of Dodge, Gonzalez, and their supervisor, Farraj.

Although the indictment is still sealed, the officers will be charged for being less than forthcoming about the nature of the traffic stop and the sequence of events leading to Marte's arrest. Specifically, they testified that the Mercury Marquis was under surveillance and that it ran the stop sign, but did not fully disclose that they received the informant's tip that Marte had hidden the weapon in the car.

One week after the federal case was dropped, Marte was arrested again on state weapons charges. His trial in that case is pending.

``It's an outrage,'' Gonzalez's attorney, Douglas Hartman, said of the indictment alleging perjury and obstruction by the three Miami-Dade officers. ``He had a gun, he admitted he had a gun and [the feds] let him go.''

Farraj's attorney, Richard Sharpstein, called Marte a ``one-man crime wave, a scourge of the community who was riding around with a loaded weapon.''

Anonymous said...

Speaking of Maximum Miller,

I hear he held a Broward Hack in contempt over the weekend just so that attorney had to miss a family vacation and bite the costs of hotels and plane tickets.

Please send miller to juvy, with the Learned Mindy Glazer. That way his immature judicial temperment can't really screw people lives too much.

How many times has Miller said " I know I'll be reversed, but I like trying cases twice". Next atty in there who hears that should send transcripts to JQC. Miller: if you purposely make rulings to cause a reversal, you should pay for the second trial, not us ( taxpayers).

Shouldn't Maximum Moron be in NoDade? Or teaching a class on how not to be a judge?

Finally, Miller practices in Dade. For the most part, we follow the statutues. Perhaps someone will fax the YO statutute to Miller ( if he has a fax ) for his review. I know in Broward they lost the diversion program and most statututes, but I thought we were a little better in Dade.

Perhaps we should trade Miller to Broward for, um, well just give him away.

CAPTAIN said...

Two counts of Felony Child Abuse/No Harm

Cap Out ...

on the shumie fence said...

I am against Shumie time as a matter of principle. But I personally like Shumie. He has a certain je ne sais quoi? Se bon!

Anonymous said...

Is this the case where danelly caused the mistrial?

Anonymous said...

Captain get on the case...

Sylvestre has tickets in Collier, Palm Beach and other counties. They are there. You have to see his full transcript.

Thursday, February 11, 2010 11:36:00 PM

Kissimmee Kid said...

Man, you South Florida lawyers are a bunch of woosies. A lawyer gets what he perceive is a bad ruling and throws a childish fit and you guys all blame the judge.

The judge says, “stall and vamp, until your evidence gets her tomorrow.” The only proper answer north of Okeechobee, is, “Yes, Madam.” Are you really telling me the loon could not give his opening? The eyewitnesses needed the phone records to testify about a stabbing?

Up here in Florida, we’d be all over the judge for being a gutless wonder. Not every person remanded to the holding cell gets booked. It is astonishing that the speech I read did not result in a remand over the lunch hour. Lots of judges have said the magic words only to say, “Apology accepted.”

Seeing how crooked Broweird is, I’d question if there was a payment made of deliberately throwing the case.

Anonymous said...

Hey, you there in America at Friday, February 12, 2010 4:55:00 PM,

Down here in Southern part of no mans land we can't just remand lawyers over lunch, we can't do all those cool things Judge's up north can do with the powers they hold. See the problem is those darn elections and getting opposition come that special time of year. Well it's tough to hold down a jurist position while sending these snot nosed cry babies to jail over lunch. It's that little thing called Campaign donations and endorsements. Well, we just like too, let's just say tip toe around here.

On a brighter note every Wednesday, I get in a few Tee times down at the Golf course with Judge so and so and lawyer so and so....

You get the picture?

CAPTAIN said...

to 4:39

Only checked Dade. Nothing In PB County. Collier does have one Failure to Move Over for Emergency Vehicle where he chose voluntary Traffic School issued 6/11/07.

Cap Out ...

MILLI! said...

Blame it on the Dreds

CAPTAIN said...

THE CAPTAIN REPORTS:

23 Applicants for Circuit Court Judge (including seven County Court Judges) to replace retiring Judge Norman Gerstein are:

William Altfield
Kurt Berman
Victoria Brennan
Tanya Brinkley
Melisa Coyle
Ofelia Damas-Rodriguez
Marie Davidson
Robin Faber
Jose Fernandez
Alan Fine
Robert Galt
Mario Garcia
Darrin Gayles
Thomas Gorday
Andrew Hague
Patricia Kopco
Robert Kuntz
Browyn Miller
Anita Moss
Gordon Murray
Margaret Rosenbaum
Deborah White-Labora
Angelica Zayas

CAP OUT .....

Anonymous said...

BTDT - do you practice ever in Broward? Your argument that Lebow is punishing the community instead of the State Attorney's Office falls on deaf ears for any of us that actually do Broward cases.

Fact is the Broward SAO has been punishing the community for years.
They won't dismiss cases where the prosecutors know they cannot prove the case. Thus costing tax payers money and costing jurors time and
money. They send the most non-violent drug offenders to prison in the entire state. They fail to
investigate public corruption even when the evidence is right before them (Feds have to clean up there mess). The office is a disgrace and one of the reasons is that no Judges have stepped up to the plate
and dealt with them. In Broward the State most often acts like Judge, Jury and Executioner.

Bottom line is the State tried to tango with the wrong Judge and got what they deserved. Maybe this will serve as a wake up call to the Broward SAO. They've been hurting the community themselves for so many years and its time that they changed there own ways.

Anonymous said...

Who would plea to 60 on a second? Maybe in return for a waiver but otherwise roll the dice.

Anonymous said...

love sharpies self righteous nonsense when he is defending dirty crooked cops

Anonymous said...

Rumpole,
You're misreading Jordan. Contrary to what you wrote, a defendant does not "either get life, 40, or less" for a life felony. That was true in 1988 when Jordan committed his crimes. But the law has changed, and the punishment for any life felony committed after July 1, 1995 is "a term of imprisonment for life or by imprisonment for a term of years not exceeding life imprisonment." The statute is 775.082(3)(a).

Anonymous said...

a needed win for sharpy in fed court. he has gotten his ass kicked alot over the last few years

SHUMIE FOR HAITI said...

Sappy Shumie verse
couldn't be any worse


WE ARE THE LAWYERS
WE FOLLOW SUMIE

WE ARE THE ONES LEAVING WORK EARLY
SO LETS START DRINKING

THERE'S A CHOICE WE'RE MAKING
WE'RE LEAVING WORK EARLY
SO WE CAN HAVE A BETTER TIME
THAN YOU'LL EVER SEE

WE ARE THE LAWYERS
WE FOLLOW SHUMIE
WE ARE THE ONES CUTTING OUT EARLY
SO WE CAN START DRINKING......

Anonymous said...

Let's check cop cars GPS's whenever we have a case based on a traffic stop and see how many motions to supress we can win.

Anonymous said...

9:11..........again, regardless of what the BSAO does or doesn't do, it doesn't justify a judge's dumping a death penalty homicide case. Again, punish the prosecutor, punish the BSAO, not the community. If you all are so convinced that the BSAO is behaving inappropriately, file motions for sanctions and Bar complaints, etc. THAT is the appropriate remedy.

Judges should not be punishing or rewarding defendants, victims, or the community because of the lawyers. Period.

I really can't understand why this position is remotely controversial.......if a judge slammed a defendant because the defense attorney was a jerk and it was provable, as is obviously the case here, we'd all be going nuts (and rightfully so).

BTDT