THIRD DCA ...... "BUNKER" EDITION
Borrowing a term used by South Florida Lawyer, they describe the ongoings of our esteemed jurists who reside out West by the FIU campus as practicing in the "bunker".....
Today's sap is Joaquin Blanco. Mr. Blanco was arrested back in 2008 under case number F08-41616. Mr. Blanco was charged with trafficking in amphetamines when he sold crystal methamphetamine to an undercover police officer. Blanco claimed he was induced into making the sale by Jesus Felizzula, a State confidential informant who Blanco met at an HIV facility.
What say you 3rd DCA? "Because we find that the errors complained of were waived or harmless, we affirm."
Defense counsel’s request to voir dire the jury panel regarding their opinions on entrapment was denied. Thereafter, defense counsel accepted the jury without renewing his objection to the restricted voir dire.
There were several appellate issues, but the meat of the appeal, where the case was going to rise or fall, was the issue of the denial by Judge Tinkler Mendez of Blanco's counsel's request to voir dire the jury regarding the entrapment defense. And the last sentence of this section of the appeal is the real "rub" in the case - more like a rub in the defendant's face.
"Blanco contends that the trial court erred in denying defendant’s request to voir dire the jury regarding the entrapment defense because this prejudiced his effort to obtain a fair and impartial jury. Counsel should be given some leeway in questioning prospective jurors regarding their understanding of defendant’s defense. See Lavado v. State, 492 So. 2d 1322 (Fla. 1986); Walker v. State, 724 So. 2d 1232 (Fla. 4th DCA 1999). But, it is well settled that counsel must renew any objections to voir dire errors before accepting the jury. See Lavin v. State, 754 So. 2d 784 (Fla. 3d DCA 2000); Stripling v. State, 664 So. 2d 2 (Fla.3d DCA 1995). Here, defense counsel’s request to question the jury about entrapment was denied before voir dire commenced. Thereafter, defense counsel accepted the jury panel without renewing his objection to the trial judge’s restrictions. Accordingly, the error was not preserved below, and relief is unavailable by direct appeal."
So, what Judge Ramirez (along with Judges Suarez & Rothenberg) is telling Mr. Blanco, is sorry Charlie, (or better stated, Joaquin), but your lawyer dropped the ball, and you'll just have to catch us on the flip side with a 3.850 in order for us to entertain the "meat" of your argument on appeal.
Meanwhile, Blanco, who was taken into custody following the trial, on May 12, 2010, waited 22 months for his appeal to be heard and decided, and who has a scheduled release date from the Florida DOC of October 29, 2012, will undoubtedly be out of custody before any meaningful decision is reached on whether trial counsel's ineffectiveness, in not preserving the record, warrants Blanco a new trial.
Might they have saved the judicial system a lot of money by having the issue briefed and argued as part of the appeal? I know, appellant attorneys and judges are turning over in their bunkers right about now as I am sure there is some Rule of Appellate Procedure they starts with the number 9 that prohibits this from happening.
But, meanwhile, Blanco will have done his 30 months on his 36 month MM sentence. For good measure, Blanco does have another two years of probation that he must serve upon release. So, maybe he will learn his fate whilst reporting to probation.
Cap Out ......