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Friday, March 26, 2010

3rd DCA ROUNDUP -The Cop-out edition.

Our beloved 3rd DCA has long had the reputation of issuing PCA's in cases where they don't like the facts, but the conviction is weak. And that brings us to one of the bigger PCA cop-outs we've seen in a while:

Locascio v. State: Here are the facts from the opinion:

Edward Locascio was charged as a principal and co-conspirator to his brother Michael’s killing of Defendant’s soon-to-be ex-wife, Silvia. The State’s theory of this wholly circumstantial case was, because the divorce proceedings between Edward and Silvia were so hotly contested, Edward was motivated to have his wife killed in order to avoid parting with his assets. In support of its theory, the State introduced voluminous testimony evidencing Defendant’s failures as a father, his unlawful tactics as a certified public accountant and investor, and his contemptuous behavior during the family law case. Along with the testimony of two divorce attorneys, spanning over three days of trial, the State presented documented evidence of Locascio’s acts of perjury, forgery, and subordination of perjury during the course of the divorce proceedings. The State highlighted this extrinsic evidence in both its opening and closing arguments, propagating to the jury that Locascio engaged in acts of “lying, frauding,” and “[behaving as a] CPA at his finest.”


Wait a second- didn't we say this was a PCA? Yep, it sure it. These facts are from Judge Shepherd's dissent. Judges Rothenberg and Lagoa didn't see fit to write anything other than "PCA".


Judge Shepherd continues:

It is well-settled law in this State that where evidence of an uncharged crime is inextricably intertwined with the charged offense, the extrinsic evidence is admissible “where it is impossible to give a complete or intelligent account of the crime charged without referring to the other crime.” See Simmons v. State, 790 So. 2d 1177, 1178 (Fla. 3d DCA 2001) (quoting Nickels v. State, 106 So. 479, 488 (Fla. 1925)). However, this Court recently has reaffirmed the rule of law which commands that such evidence shall not become a feature of the trial. See Morrow v. State, 931 So. 2d 1021, 1022 (Fla. 3d DCA 2006) (citing Bryan v. State, 533 So. 2d 744, 746 (Fla. 1988)). Whether the collateral crimes have become a feature of the trial is not measured simply by the number of references; however, “voluminous references to the collateral crime are evidence of a prohibited transgression.” Morrow, 931 So. 2d at 1023. A careful review of the record in this case reveals this is indeed a case of voluminous references. ...


Although I can agree with the State’s assertion that some of the extrinsic

evidence was necessary to establish Defendant’s motive, I cannot agree that all of

3it was, especially in light of the characterizations of Locascio as a fraud, a liar, a tax evader, and “a CPA at his finest.”As it appears the surplus was directed primarily at impermissibly attacking the defendant’s character, I would reverse the defendant’s convictions and remand for a new trial, heavily directing the State to apply an editing eye to its case-in-chief.


Rumpole ponders: How can two judges affirm a conviction and life sentence with nary a reason and one judge write a dissent, especially in a case as hotly contested as this one was at trial? Either Judge Shepherd is way off base, and his well reasoned dissent suggests this is not the case. Or the 3rd DCA has earned another stripe in its reputation as a court that often avoids the really tough cases. You make the call.


That's it for this edition. We'll address the other cases decided this week at a later time, unless we just decide to skip it all together and take the easy way out.

4 comments:

Anonymous said...

Just got an e-mail support solititation for Samantha Ruiz for circuit court Judge.
www.samantha4judge.com
The letter shows a boatload of endorsements.
In the grouping is Monica Gordo and Peter Adrian.
Hmmmm
She is a candidate for judge herself isn't she? I smell election law violation!!
The person named Peter Adrian in the endorsement is spelled differently than His Honor Peter Adrien but it is comical never the less.
Let the games begin.
Signed
2010 Election Kibitzer

Anonymous said...

Back in 1989/1990, I had an appeal from a capital sexual battery conviction in which I raised the same Sixth Amendment issue that the U.S. Supreme Court finally addressed (in my favor) in Crawford. My brief was 50 pp long, and I spent countless hours in research and preparation. The A.G. wrote a law review article based on her answer brief. The 3d DCA opinion? You guessed it, a PCA. That case opened my eyes to the reality of appellate practice and almost made me quit doing appeals altogether.

P.S.: My client died in prison.

Anonymous said...

Asa here, loving having rothenberg on third, love hearing all you defense attorneys squeal like ned beatty in deliverance

Anonymous said...

That is what happens when you get Rothenberg on your panel. I actually had a judge tell me sidebar once as he/she was about to grant my motion to suppress, that the state had no chance of prevailing if they chose to appeal, unless they happened to get Rothenberg on their panel. She is scary!