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.
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.
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.)