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Thursday, March 11, 2010

3RD DCA ROUNDUP -MURDER MOST FOUL EDITION

We start our 3rd DCA roundup with a case that has a conundrum: What do you do when the jury instruction for a lesser has a higher standard of proof then the jury instruction for the charged crime? If you're the 3rd, you wince and certify a conflict.

Leggett v. State: Here's the problem: the jury instruction for second degree murder does not require the state to prove the defendant had the intent to cause the death of the deceased. In this case the jury was also instructed on lesser included crime- intentional manslaughter. That instruction requires the jury that before they can find the defendant guilty the state must have proven that the defendant had a premeditated intent to cause the death of the deceased.

Quite the conundrum.

The second DCA in Zeigler v. State, 18 So. 3d 1239 (Fla. 2d DCA 2009) which the 3rd has followed has held that this is not error. The 3rd has followed that decision. See, Valdes-Pino v. State, 23 So. 3d 871 (Fla. 3d DCA 2009), and Bonilla v. State, 23 So. 3d 1256 (Fla. 3d DCA 2009).

The 1st DCA has held this instruction is fundamental error: Montgomery v. State, 34 Fla. L. Weekly D360 (Fla. 1st DCA Feb. 12, 2009), review granted, 11 So. 3d 943 (Fla. 2009).

What you need to know and do: Object object object to the manslaughter instruction and preserve the error.

AND THE HITS JUST KEEP ON COMING:

BROWEIRD UPDATE: Take our new quiz:

County Court criminal administrative Judge Joel Lazarus has

a) resigned as administrative judge;
b) been accepted on dancing with the stars;
c) entered the world series of poker.

Answer: Hint- we have no idea if he can dance or play cards.

So chalk up two administrative judges North of the Border resigning this week. Chief Judge Tricky Vic Tobin is losing administrators faster than embattled NY Governor David Patterson.

And not to brag but here in Dade, we saw the resignation of our chief administrative judge for the criminal courts and the election of a replacement with nary a mention of scandal or bad blood.

Remember when the folks in Broward use to sneer at us for having a court system that was an unprincipled mess? To hear them tell it, they treated misdemeanor cases more seriously than Dade treated homicide cases.

Who's laughing now?



12 comments:

CAPTAIN said...

THE CAPTAIN REPORTS:

Reprinted with the request that those bloggers that feel strongly about a particluar candidate should write to the Governor's Office at:

Office of Governor Charlie Crist
State of Florida
The Capitol
400 S. Monroe St.
Tallahassee, FL 32399-0001

OR

If you’d like to share information with the Governor regarding pending appointments or Florida’s judiciary, please write or fax the Governor’s Legal Affairs Office: The Governor’s Office, The Capitol, Tallahassee, Florida 32399-00; FAX: (850) 488-9810 or (850) 922-0307. If faxing, please include a means in addition to your fax number which may be used to contact you for further information. Anonymous correspondence is not taken into consideration.

BREAKING NEWS .....

The JNC has sent six names to Governor Crist tonight to replace Circuit Court Judge Norman Gerstein.

They are:

Judge Victoria Brennan
Judge Jose Fernandez
Alan Fine
Judge Darrin Gayles
Anita Moss
Judge Deborah White-Labora


CAPTAIN OUT .....

Wednesday, March 10, 2010 8:38:00 PM

Anonymous said...

F*%# Broward

Maybe the defense laweyrs will start trying a case now and again, instead of pleading everyone out.

- Fake Angry Jason Gray

Anonymous said...

Are you Fake Angry Jason Grey or Angry Fake Jason Grey...inquiring minds want to know.

Anonymous said...

Joe Fernandez is a strong contender.

Anonymous said...

@ 8:38 pm

[Stern stare with slightly cocked head that lasts a moment too long, then turn away dismissively without saying a word, with no discernible look on my face.]

-Angry Fake Jason Grey

Kingmaker said...

Assessing the names:

Brennan- darling of the Far Right, a Jeb appointee, experience on bench, came in second to Arzola last time, front runner

Jose Fernandez- surprisingly sent up, been earning his conservative credentials one defendant at a time, continued for report next time

Alan Fine- second time up to the gov, brightest of the bunch by far, only problem is this is a "criminal seat" and hes a Dem.

Darrin Gayles- Quietly doing his thing in County, bright, but not a standout, not a risky pick for the Gov., but doesn't Crist have to shore up the Right?

Anita Moss- second time up (3rd maybe?), former PD, Fowler White shareholder, FACDL, a solid pick for Crist since she straddles both sides of the aisle.

Deborah White-Labora- doing too good a job in Drug Court and getting Circuit pay. Sorry, Deb.

Anonymous said...

Is it fair for me to think that the Broweird judges are screwing with Bill Gelin (actually his clients) every chance they get for writing the JAA Blog?

Anonymous said...

Gayles has paid his dues in County Court. It's high time he moves on to the Circuit Court.

Anonymous said...

We now have the second 3 way race in Miami with Monica entering Seat 62:

Gordo, Monica (NOP)
(Hector Lombana Treasurer)

Kuntz, Robert (NOP)

Planas, Juan-Carlos "J.C." (NOP)

That means in the general you will have J.C. and Monica given the Miami demographics

Anonymous said...

"[P]aying your dues in County Court" doesn't mean crap if you suck as a judge, not that Judge Gayles sucks as a judge, which he doesn't.

I don't see time of service as a competency factor.

Anonymous said...

EXCEPT that rumor mill has JC Planas not running because he's now working for some big law firm. Any conformation????????

Anonymous said...

Alan Fine a great lawyer. He would be asset to bench.
Deborah White Labora the very best of the County Judges nominated.
Withour his connections, including ex-fatherinlaw, would Fernandez ever be nominated? Not hadly.
And last comment, how can the the JNC keep passing over Bronwyn Miller, perhaps the smartest of the group????????