Wednesday, June 23, 2010

3rd DCA ROUNDUP-QUANTUM MECHANICS EDITION

In a follow up to our criticism of Broward and every Black Judge who was up for re-election getting opposition, The Broward NAACP along with several other organizations is sponsoring a "Meet The Black Judges Of Ft. Lauderdale" on June 24 at the Mizell Center. Details here.

We continue our semi regular review of decisions by the best damn appellate court* on or near the FIU campus.

We start with a case from the Keys: In Bruce v. State, the lesson here is strictly for our robed readers: You can no longer deny pro se motions with impunity because a defendant has counsel. In Sheppard v. State, 17 So.3d 275 (Fla. 2009) the Supreme Court created a limited exception to striking pro se motions when the defendant has counsel. When the defendant moves to withdraw a plea the court must conduct a limited inquiry to see whether there is an adverse relationship between the defendant and his attorney. In Bruce, Bruce filed a motion to withdraw a plea and actually made the allegation of a conflict between himself and his attorney, so the case was returned to the trial judge to conduct an inquiry.


Here is the pertinent part of the ruling in Forbes v. State:

We defy you to correctly interpret what the holding is:

We agree with the defendant that the lab report was not admissible into evidence as an exception to the hearsay rule. See Hogan v. State, 583 So. 2d 426 (Fla. 1st DCA 1991) (holding that, at a probation revocation hearing, the business records exception to the hearsay rule is inapplicable when no one from the lab testifies as to knowledge of testing and reporting procedure; therefore the lab report is inadmissible). The lab report is nevertheless admissible as hearsay at a probation violation hearing. Isaac v. State, 971 So. 2d 908 (Fla. 3d DCA 2007). However, hearsay alone is an insufficient basis upon which to revoke probation.


Rumpole grumbles: Outside of certain theories in Quantum Mechanics in which something can possibly and simultaneously exist in two opposite states (ie., the window is open and closed, or in Schrodinger's cat, the cat is both alive and dead in the box) this decision is contrary to the fundamental laws of the universe. Either a lab report is admissible in a PVH or it is not. It cannot be both. Yes it can. (See how confusing that is?)



* we express our opinion only as to appellate courts on or near the FIU campus and not as to the 3rd DCA vs. any other appellate courts.

18 comments:

Anonymous said...

I read it that the lab report can be admitted at the probation violation hearing but it is insufficient evidence to revoke probation. Perhaps it may be used to modify probation (i.e. add a special condition of drug treatment or NA meetings, etc.)

Anonymous said...

LOL> It's really not as complex as it seems. The court just did a poor job explaining it.

The lab report comes in even though it's hearsay (ie. not under an exception to the rule) because hearsay is admissible in a PVH. However, the report cannot be used, in and of itself and without other evidence, to sustain a violation (ie. hearsay evidence, while admissible in a PVH, is not enough to sustain a violation.........remember, there's a difference between admissibility and sufficiency).

BTDT

JC said...

It is not admissible as an exception - if it were (uh, I think) then the revocation of probation could be entirely based on the hearsay in the lab report because it would come in as an exception rather than pure hearsay. Rather, because hearsay is admissible in a PVH, the lab report comes in - it just can't stand alone as the sole basis for the revocation.

Rumpole said...

7:33 PM- are you reading this?

"We agree with the defendant that the lab report was not admissible into evidence as an exception to the hearsay rule."

How does that fit within your "read"?

fake blecher said...

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FAKE FRANK GIVARIA said...

GERMANY

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Anonymous said...

The issue would be whether it would be admissible in its own right, as (1) an exception to hearsay; or (2) nonhearsay. If not, then it becomes normally excludible as nonexcepted hearsay. (Which is the analysis done at a regular trial.)

However in the world of PVH's there is all of the lessened requirements for the prosecution.

One of those lessen requirements is that all nonexcepted* hearsay is admissible in a PVH, as long as its not the sole basis of the violation. If you can get some other evidence, nonhearsay testimony or properly excepted hearsay testimonial evidence that supports the violation, then you can toss the nonexcepted hearsay on top of it to boot.

Bottom line is PVH's suck.

Eyeonq said...

The Q has never lost a PVH. Fun fact.

Anonymous said...

nice objection denaro.

Anonymous said...

JOEL DENARO GETS THE DEATH PENALTY OF CARABALLO OVERTURNED IN THE FL. SUPREME COURT. DEFEATS LAESER AND WILL THOMAS IN THE CASE THAT THE NEW TIMES HAD PREVIOUSLY DUBBED THE VERDICT OF THE YEAR. DENARO SURPASSES HIS DAD, "BLACK JACK" DENARO AND NOW REIGNS AS TOP CRIMINAL LAWYER IN MIAMI-DADE COUNTY,

THE CURRENT RANKINGS:
1. JOEL DENARO
2. JACK DENARO
3. BETH WEITZNER
4. GREG DENARO
5. ABE LAESER
6. ROY BLACK
7. DAVID O. MARCUS
8. BILLY BARZINI
9. BENEDICT P. KUEHNE
10."COUNTRY" PETTUS

Anonymous said...

Rumpole
perhaps it was not admitted due to predicate & foundation issues?
DS

Anonymous said...

Hearsay sux.

Anonymous said...

Anyone else around here starting to believe that the SAO "Gang Unit" is out of control?

Anonymous said...

Rump, its actually pretty simple (though the 3rd made it sound pretty complicated)...the lab report is admissible, but only as hearsay.

So, the report, alone, cannot be the sole basis for revoking probation, unless a person from the lab is present (or the State has a Business Records Certification to get it in) so that the report is no longer hearsay.

(P.S. - if it couldn't be the basis for revocation, it also couldn't be the basis for modification, unless the probationer agreed to the change.)

Anonymous said...

AH ha, in the words of Tinkler-Mendez “this opinion is simple, [you morons], I can admit the lab report, just not mention it in my ruling revoking probation and sending the [low life maggot] defendant, to prison.” See how easy it is! Further, “I wish there were more brilliant jurist in this building, aaa the curse of brains and bleached hair, I was left for an imported bimbo, whose only mental exercise if how to satisfy a lecherous mans appetite for intense passion.”

Boy o boy, the if I may offer a suggestion to Judge Soto, if you were to relocate Judges Zabel, and J. Scola, to the 7th floor, along with Judge Tinkler-Mendez you would have the MENSA think tank of the criminal justice building. Just think, while the elevator goes to the 7th floor, the escalator does not, poetic don’t you think. Also, you may consider relocating Judge Arzola to the 6th floor, the east corner of the building would be like Micro-Soft, user friendly, just think and new and improved PiƱeriro, a no nonsense Venzer, and a brilliant Arzola, on the floor to encourage Tunis to get the message. Oh well, just a thought for reorganization. Please please do consider moving Zabel and Scola to the 7th floor, J Leno is waiting.

CAPTAIN said...

THE CAPTAIN REPORTS:

Women Lawyers Need to Exude More Confidence, Federal Judge Says ...
(from the ABA Journal)

"Women lawyers need to exude more confidence in the courtroom, even if they have to fake it, according to a Pennsylvania federal judge.

There are few differences between great male and female lawyers in the courtroom, three judges said at a program at the ABA's Women in Law Leadership Academy in Philadelphia on Thursday. But they identified some things women could do better, the Legal Intelligencer reports in a story reprinted by New York Lawyer.

Being confident in the courtroom is one way women lawyers could improve, according to U.S. District Judge Norma Shapiro of Philadelphia. "Women in general lack the confidence that men seem to have in the courtroom," she said. And if lawyers don’t have confidence, jurors and judges will also lack confidence in their arguments.

Shapiro said confidence grows with experience. But new lawyers may have to fake it.

She cited an example from her own days as an associate at the law firm now known as Dechert, the story says. A partner came back to the office after losing a request for an injunction and asked Shapiro, who was the only lawyer available, if she knew how to appeal. “Absolutely,” Shapiro answered, although she should have said “no.”

Shapiro contacted a woman lawyer in court offices who helped Shapiro with the appeal and got her an appellate panel that afternoon. The appeals court issued the injunction. "So that's how you show confidence," Shapiro said.

U.S. District Judge Barbara Lynn of Texas said the secret to showing confidence is developing your own courtroom style—and style doesn’t mean wearing a short skirt or a low-cut blouse, the story reports. The goal is to be noticed for your argument rather than your outfit.

Lynn recalled one jury that sent her a note asking a woman lawyer sitting at the end of a table to keep her legs together. Lynn dispatched her law clerk to deliver the request to the lawyer."

...I'm wondering how Susan Dannelly, Flora Seff and Susan Dechovitz, to name just a few of the very successful female lawyers from the SAO feel about this article. Remember that these quotes came from female Federal Judges speaking at a conference set up for female lawyers.

Cap Out ....

Anonymous said...

Yeah, joel denaro is the best criminal lawyer in Miami, and he is tops in the country.

NOT!!!!!!!!!!!!!!!! not even close.

CAPTAIN said...

Caraballo

How much more money will we spend on death penalty cases?????

The Office of Carlos Martinez and APD Andrew Stanton handled the appeal before the Florida Supreme Court. The Court affirmed the convictions but reversed the death sentence and ordered a new sentencing hearing.

Judge William Thomas was in charge for the trial. Defense Trial Counsel were Gary Rosenberg, who was paid $130,612 and Joel Denaro, who was paid $101,251.50, according to the CJIS Docket.

Now, they will go through Phase Two, one more time.

Hey, BTDT, how about Life without Parole? Not good enough for you?

By the way, (this is for 8:23 am); who took over Judge William Thomas' division and will be the Judge in Phase Two this time?

Sarah Zabel.

Cap Out ....