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Thursday, April 01, 2010

3rd DCA ROUNDUP -The Long Arm of the Law edition

UPDATED- Send Rumpole a real letter using Google's new Gmail Paper Service. See below for details.


You are arrested. You are convicted. You are sentenced to prison. You serve your time. You get out.
Query: Can the State haul you back into court and impose more sanctions upon you?

Answer: You bet your sweet 3rd DCA they can if you were convicted of a sex crime.

That's precisely what occurred to Mr. Cuevas in Cuevas v. State when the sentencing court forgot to impose sexual predator sanctions at the time of sentencing even though the operative statute mandates that the court do so, and even though, as Judge Shepherd points out in his dissent, the operative statute has no provision to do what the trial court did and the 3rd DCA affirmed.

Judge Shepherd wrote:

The issue in this case is whether the State of Florida can haul a sexual predator back into court, after he has completed his entire sentence, to declare him a sexual predator as defined by section 775.21(4)(a) of the Florida Sexual Predators Act (2006),4 in the absence of a statutory recapture provision. I find it cannot and would reverse the order on appeal.


Rumpole wonders: What ever happened to the rule of lenity?




Query: When do you lose almost all of your Constitutional rights and protections?

Answer: When you go for a ride as a passenger in a car.


In State v. Zaldivar the 3rd DCA held that:

Occupants of a private vehicle are traveling together by choice and thus may be assumed to have some personal or business association with one another. Knowledge or suspicion that one of the occupants has been involved in criminal activity occurring within the car, or involving the car itself, serves as a basis for a reasonable suspicion that the other occupants may be participants in that activity.


Poor Mr Zaldivar. Although ably represented by Jason Grey and Juan Mourin, he had the misfortune of being the passenger of a car rather than the driver. And apparently that makes all the difference in the world as the 3rd DCA noted:


Had Zaldivar been the driver and only occupant of the vehicle when it was stopped by the police, the suppression order might stand. But in this case, the police had ample cause to stop Dominguez and the car he was driving. Such a stop includes the legal right to order other occupants to step out of the vehicle.


Conclusion: If you're going to commit crimes in Dade and want the protections of the Constitution, drive yourself and drive alone.

Just where has Miranda and the 4th Amendment gone? They've been dead and buried in this per curiam opinion by the 3rd DCA. In State v. K.F.R, the court stated the following:


The state argues that the mere fact the defendant - a juvenile- was walking down the street in a high crime area, carrying a school book was sufficient reasonable suspicion for the police to stop and search the defendant. We agree. We cannot be blind to the fact that most inner-city youths do not carry school books, much less read. Therefore, the officer was justified in having his suspicions aroused. Furthermore, upon searching the juvenile and not finding any contraband, the officer correctly interrogated the juvenile as to why he was walking while carrying a school book. While Miranda has in the past applied to such custodial interrogations, we hold that the short nature of the interrogation justified proceeding without Miranda. We therefore announce a rule that any reasonably short interrogation periods that are conducted pre-Miranda will be lawful and not subject to suppression.




And finally- for those of you who just can't get the hang of email, we recommend to you Google's new "Gmail Paper" service. When you write us an Email using Gmail, Google now gives you the option of sending the Email via the postal service with paper- a real letter! Click here to learn more and to sign up. We are working with new Chief Judges Brown and Soto so that you can address email and postal letters to "Rumpole, c/o The Gerstein Justice Building" and we will receive the letters.


See you in court, reading our mail.


32 comments:

CAPTAIN said...

The Captain Reports:

Election Update ... Milt Hirsch stunned with filing

Unopposed for the past year in his quest to become a Circuit Court Judge, Milt Hirsch was stunned today when he learned that veteran DUI extraordinairre attorney Richard Hersch had filed to run against him. Hersch said that Hirsch is a great lawyer but that Hersch felt Hirsch should not get a free ride into the seat. Hirsch said that Hersch was obviously banking on the Hirsch name to get Hersch elected. "I have spent lots of time and money getting the Hirsch name out there in the community and it pains me to think that Hersch would take advantage of that", said Hirsch. Hersch responded, "my name is my name and I will let the voters decide whether they want me or they want Hirsch as their next Circuit Court Judge."

Cap Out .....

Anonymous said...

Rump,
If I had or could raise the money I would run for the bench, also.
DS

Anonymous said...

What about the Ol' Gunner- PD Bob Godwin who holds the record for consecutive not guiltys in PDs office- at 21? Any update on him?

Anonymous said...

You gotta love Richard Hersch's humor hahaha!

Anonymous said...

Hey Capt.Great APRIL FOOLS JOKE.

Anonymous said...

what a racist opinion ...most inner city kids don't know how to read...this is offensive...something ought to be done about a court characterizing a whole community as ignorant...that ain't quite right...is that jurisprudence...

Anonymous said...

very very funny

Rumpole said...

If you have a problem with the opinion I suggest you click on the link and read the entire opinion so that your criticism will be more fully developed.

PD Factorian said...

With all due respect to the Ol' Gunner- the PD record for most consecutive not guilty verdicts belongs to the big raw Swede Big Jim Gustafson, who won 24 in a row including the never done before "Felony Slam"- winning 4 felony trials in less than a calendar month before Judges Morphonios, Snyder, Perason, and Klein.

Lets see someone top that today!

Anonymous said...

you got me rump

Rumpole said...

Thanks 11:20 :)

Anonymous said...

8:28:00 am, I haven't read the opinion, but the title gives me reasonable suspicion, and the excerpt gives me probable cause. to believe that it is rationally related to the annual celebration held on today's date.

Anonymous said...

Google is pulling one of the biggest April fools gags ever.

http://googleblog.blogspot.com/2010/04/different-kind-of-company-name.html

Anonymous said...

Funny scenario (especially like the case title), but sadly not far off from the truth. The "high crime area" exception to 4th amendment law of Illinois v. Wardlow does give the police tremendous power to disregard what would otherwise be Constitutional limits on their power, and does give the judicial seal of approval to a different system of justice depending on whether one lives in a nice or crappy neighborhood. If there was one SC opinion I could erase in the last 10 years it'd be that one. (Bush v. Gore a close second)

Anonymous said...

PHIL IS RUMP!

Oh wait, that's true. Never mind.

;-)

Anonymous said...

I'm not falling for it, Rump. I won't be your April Fool!

Anonymous said...

Doesnt the new Alvarez-Newman race look like a Hector Lombana puppet show? Hector is Alvarez' campaign treasurer. Alvarez is a good guy, but why file against Newman? He's got loads of dough, has run campaigns before and has over a dozen years on the bench. You dont exactly hear an uproar about getting him off the bench.

On the other hand a prime target- Rodney Smith-has no cash, never run a campign and was only appointed a couple years ago. He is appointed to Hialeah branch court where he presides in obscurity.

But alas! Smith's campaign treasurer is also Hector Lombana. So there is no way Lombana is going to run Alvarez against Smith, although Smith would probably get trounced by Alvarez.

Just seems like Manny made a poor choice by letting Hector Lombana push him into a race against a long time sitting judge. Newman had almost 120k in his campaign account last time and got no opponent. No reason to think he wont get at least that amount this time.

CAPTAIN said...

to 12:15 PM

That is not an April Fools joke. Topeka will be Google, Kansas for the next 30 days. Google has offered cities around the country to compete for a high speed wifi connection for all of their citizens. Google, the company, will be awarded these demo wifi systems to a certain amount of cities in the US shortly.

Google, the company, says the speed will be 100 times faster than anything anyone has ever experienced. Once the test cities use the equipment and they work out all of the kinks, Google, the company will then begin marleting the product to all cities throughout the US, for a profit.

Any city can compete and Topeka decided to change their name to Google in an effort to win the competition.

As an aside, I believe something like three cities throughout our entire great state of Florida have taken the time to file the application with Google requesting to be considered as one of the demo cities.

Cap Out ...

Old asa said...

Rumpole- we've been over this before, but it should be stated again that the Raw Swede's so called "felony slam" for the PDs was not a true slam because between the not guilty in Morphonios and the not guilty in Snyder he had a hung jury before Shapiro and his client pled to a misdemeanor cts. Then Gustasfson had not guiltys before Pearson and Klein. A very impressive month to be sure, but not the vaunted felony slam it was advertised to be.

Anonymous said...

Rodney Smith is a great judge who doesn't deserve opposition.

Anonymous said...

Any lawyer who read that post and did not realize that the K.F.R. opinion was an April Fools joke, needs to PLEASE find a new line of work.

eye of the tiger said...

Ed Newman has been waking up early, running on the beach, (cue Eye of the Tiger Theme song) swimming, hitting the gym, and getting into fighting/playing shape.

Eye of the Tiger baby.

Anonymous said...

There's precedent for the KFR decision. See Men In Black, the first one.

Anonymous said...

Newman is finished.......stick a fork in him he's done......he can spend all the NFLPA pension money he wants but.......he is a bully and doesn't know the law .......combine that with the reality that he is generally disliked.... along with his various documented misdeeds on the bench ........add a little pinch of Dade county demographics......a splash of high Hispanic turnout ......and voila you have "Cooked Newman"

gonna fly now said...

Tough on the field....tough on the bench....and unbeaten in elections. The Big E will walk to victorEEE

Cooked Newman said...

Newman is finished

Click said...

Guess Who?

Hint Word "Governor"

grand funk shumie said...

I'm in love with the girl I'm talking about,
I'm in love with the girl I can't live without.
I'm in love but I feel like I'm wearin' it out,
I'm in love but I must have picked a bad time ...
To be in love, a bad time to be in love,
A bad time to be in love, A bad time to be in love.

3L Blonde bombshell said...

I always knew the big lug was a romantic at heart.

knowledgeable voter said...

Will Newman's much discussed and controversial "plea matrix" (behind door number 1....behind door number 2....) that was all the rage in the late 1990s become a focus of the campaign?

And how about his courageous ruling in the controversial loitering and prowling case in 2002 - State v. smith?

For once I'd like to see an election on the issues and not on names.

Anonymous said...

HYMAN SLOM: There was this kid I grew up with; he was younger than me. Sorta looked up to me, you know. We did our first work together, worked our way out of the street. Things were good, we made the most of it. During Plea-Blitz, we played Let’s Make a Deal... made a fortune, closed out a million cases. As much as anyone, I loved him and trusted him. Later on he had an idea to run a courtroom where he could yell at the lawyers, put unrepresented defendants in the box. That kid’s name was Ed Newman, and the courtroom he invented was Special Ed’s Funhouse. This was a great man, a man of vision and guts. And there isn’t even a plaque, or a signpost or a statue of him in the courthouse! A Cuban filed against him and won. No one knows who gave the order. When I heard it, I wasn't angry; I knew Ed, I knew he was head-strong, talking loud, saying stupid things. So when he turned up defeated, I let it go. And I said to myself, this is the business we’ve chosen; I didn't ask who gave the order, because it had nothing to do with business!

Anonymous said...

im gonna support richard hirsch. milton is not a good guy and he suffers from an inflated super ego. real mental problems in my view. good luck richard hersch.