WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. THIS BLOG HAS BEEN CALLED "THE DEFINITIVE BLOG ON MIAMI CRIMINAL LAW" BY THE NY TIMES, THE WASHINGTON POST, THE POPE, AND DONALD TRUMP WHO ALSO ONCE SAID IT WAS "REALLY GREAT". POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Thursday, June 17, 2010

HERSCH STANDS HIS GROUND

The title of the post links to a fascinating decision in State v. Yaqubie.

Yaqubie stabbed and killed someone. Own our Richard Hersch came to court on behalf of Yaqubie armed with self defense. Under Florida's new self defense statute, the defendant is entitled to seek immunity from prosecution pursuant to section 776.032 Florida Statutes. Hersch made such a motion.

Enter Judge Trawick, who treated the motion as a "c(4)" motion to dismiss. Finding that there were material facts in dispute, Trawick denied the motion.

"We'll just see about that" said Hersch (or words to that effect.) He stood his ground and took Trawick up on appeal.

Enter the 3rd DCA and Judge Wells who said that the proper standard for such a motion for immunity was enunciated in Velasquez v. State, 9 S0. 3d 22 (Fla. 4th DCA 2009) which held that the trial court must determine by a preponderance of evidence whether the defendant acted in self defense and is thus immune from prosecution.

What else do you need to know? That the court cited with approval other courts in holding that the current status of self defense in Florida is that the statute is a true immunity provision and not an affirmative defense and as such the trial court is required to resolve the disputed facts and issues to see if immunity is applicable. Affirmative defenses are passed on to the jury to resolve while true immunity issues remain the providence of the trial court.

This is a significant distinction that any competent criminal practitioner must know.

There's another part of this decision reversing Judge Trawick for partially granting a motion to dismiss and reducing the charge from second degree murder to manslaughter. But that part of the decision is old hat- a c(4) motion tests the sufficiency of the charges and not whether the state can secure a conviction at trial, blah blah blah.

The case was remanded for an evidentiary hearing and for Judge Trawick to apply the correct standard.

It is a nice win for Richard Hersch on a relatively new area of the law.
And for that Richard and his firm receive the coveted "well done" from Rumpole.

16 comments:

Anonymous said...

Rumpole,

Why don't you elaborate and explain exactly how this is a "nice win" in any sense except as an interesting basis for a law school exam question?

I'm sure your distinguished robed friends will be breaking down the doors to find that murder defendants have "self-defense immunity" and can't be prosecuted further. Especially right around filing deadlines.

Rumpole said...

Its a nice win because the case codifies a disputed area of the law and gives defendants access to have judges do their job- listen to testimony and adjudicate facts rather than passing the hard work on to juries.

CAPTAIN said...

The Captain Reports:

Federal Court Judges Speak Loud & Clear; Mandatory Minimums Stink .....

(Hey, where's the Southern District Blog on this story?)

Mandatory minimum sentences are too high, restitution for crime victims should be available in all cases, and judge-specific data on sentencing should not be reported, according to a survey of more than 600 federal trial judges.

From January through March of this year, the U.S. Sentencing Commission for the first time questioned federal judges on their views about sentencing under the advisory guidelines system in effect since 2005. The U.S. Supreme Court struck down the mandatory sentencing guideline system in its 2005 ruling U.S. v. Booker.

The survey, released last week, drew responses from 639 of the 942 judges to whom it was sent -- a 67.8 percent response rate. The 639 judges who responded had sentenced 116,183 offenders, or 79 percent of those sentenced during fiscal 2008 and 2009.

Sixty-two percent of the judges said the mandatory minimums that they were required to impose were too high, particularly for crack cocaine (76 percent), receipt of child pornography (71 percent) and marijuana (54 percent). However, strong majorities believed the sentencing guideline ranges for most federal offenses were appropriate, with the exception again of those for crack cocaine, marijuana, and the possession and receipt of child pornography, which they said were too high.

When asked to choose among sentencing systems without guidelines, with mandatory guidelines, with advisory guidelines or with mandatory guidelines that conform with the Sixth Amendment, 75 percent of the responding judges chose the current system of advisory guidelines....

Among the survey's other findings, 54 percent agreed somewhat or strongly that pre-sentence reports should be required to include information that a crime victim wants included. But 68 percent said victims should not have the opportunity to comment on the pre-sentence report before sentencing. Sixty-six percent agreed somewhat or strongly that courts should have the authority to order restitution for victims in all cases.

View the entire article, "Judges Give Thumbs Down to Crack, Pot, Porn Mandatory Minimums" by Marcia Coyle in the National Law Journal at:

http://www.law.com/jsp/article.
jsp?id=1202462732111&Judges_Give_Thumbs_Down_to_
Crack_Pot_Porn_Mandatory_Minimums

Cap Out ....

Richard Hersch said...

I write only to point out that while Judge Trawick backed the wrong horse on the standard and procedure (I think he wanted the Third to weigh in first)on the Stand Your Ground issues, he did reduce the 2nd Degree Murder to Manslaughter on a C4 motion finding no evidence of hatred, spite, malice, etc, and following a pretty long line of cases. Don't see that everyday.


He was reversed on that by Wells, Lagoa and Rothenberg who feel pretty strongly that a jury should get to weigh in on that issue (and eschewing a pretty long line of cases). Not sweating, it's a super trial case and still got a bunch of motions to go.

Shoot me if I am not allowed to say this, but I don't know anyone who doesn't think that J. Trawick is doing a good job.

Thanks for the kind words.

Anonymous said...

How about a well done for Amy Weber for her stellar work in Paz Rivero! Be fair Rumpole!
http://www.3dca.flcourts.org/Opinions/3D08-2572.pdf

Rumpole said...

If we shoot you, who will defend us?

This post was not about Trawick doing a bad job. Nobody we know thinks he is anything but a great judge. This about you doing good lawyering and getting a great result that will help us all.

Anonymous said...

When does this comment section deteriorate in to a "but I don't like Hersch" fest?

Haters.

Anonymous said...

Good job Sharpstein. Back on the winning side.

Anonymous said...

Does anyone else think that the ref was paid off in the World Cup game to keep the U.S.A. from winning? It sure looked like it to me.

Anonymous said...

Okay 9:44am is definitely taking a cheap shot at Amy Weber.

But you all already knew that didn't you?

The opinion was bad enough without the Schwartz reference to Anders.

Anonymous said...

Hey 9:44...

...i'm assuming u r being sarcastic.

Anonymous said...

Hersch rules.

Anonymous said...

Most lawyers really do not understand just how powerful the word "immunity" really is.

Think of diplomatic immunity and you see what I mean.

That law really changed things for many agg assaults and batteries.

The judges have all struggled to find the right procedure for an immunity case. Should the judge decide? Should it be a special jury instruction? Why have a trial if you are immune?

I too really like Trawick. He is a very good judge.

Alex Sink No Free Ride said...

Socialist Democrat filed for Governor.

Anonymous said...

The most fascinating financial disclosure ever is that of Rick Scott, he list net worth at over 218 million, wow! I have just copied and framed his financial disclosure so that everyday I can set some goals.

Anonymous said...

that opinion is brutal.