Friday, March 30, 2012

Preserving the Record for Appeal




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 ......


DS sez: said...

Justice, we dont need any justice , we got case law to screw you. Its the Comtempary Objection Rule, or Object Before, Durning and After and pray.
Thats the 3rd : Fuck the Defendant if we can by punting or denying


Rumpole said...

two thoughts- It always bothers me about this legal fiction that if the attorney does not object at the right time then the court of appeals will assume that the trial lawyer changed their strategy and no longer wanted to ask the jury about entrapment.

Second- no lawyer should be allowed inside the REGJB much less be allowed to pick a jury who does not have a basic understanding of protecting the record and preserving appellate issues, especially on jury selection issues.

Actually three points- why wouldn't Tinkler-Mendez let the lawyer conduct voire dire on a possible defense? She knows better. There must be something else that occurred here.

Anonymous said...

There is nothing else that occurred here Rump. Tinkler-Mendez is erratic and inconsistent in her rulings, and very few Judges understand voir dire issues, much less a good chunk of the lawyers who try cases in the building. Most can't preserve an issue to save their life.
Ask the appellate lawyers at the PD's office how many voir dire issues and objections in general are properly preserved by the trial lawyers in and out of their office. They are the only ones who know the truth since they are the only ones who read the transcripts.
As for the 3rd DCA, they went down hill the minute they let Leslie on the bench.
Say goodbye to any decent decisions coming out of that court. Have you taken a look at how many cases from the Florida Supreme Court have reversed the 3rd DCA lately? You should, it makes very interesting reading. And don't limit yourself to only the criminal opinions.

Anonymous said...

This is a harbinger of bad things to come.

Rothenberg has written opinions trying to push the harmless error/waiver issue much further into criminal law in the 3d than it had previously gotten.

Now she has apparently gotten Ramirez on board, at least on this one - those who practice Federally know just how bad this waiver/harmless error idea has gone.

Hopefully Schwartz will wind up on a panel with her and eviscerate her on the issue. Otherwise prepare to see many many fewer opinions and reversals.

Anonymous said...

this is the second time this happens. this is rothenberg's new end run around appellate relief for reversible error.

she is a very very dangerous person in a robe

Anonymous said...

As an appellate attorney who has handled numerous appeals from this judge I disagree that she knows better.

Jury selection preservation tips:
1) If you are denied opportunity to voir dire, proffer what you would have asked and state that it is relevant to your theory of defense.
2) If a juror is engaging in relevant nonverbal behavior, put your observations on the record and if possible get the prosecutor/judge to acknowledge them.
3) If jurors are raising their hands to a question, unless you say who they are it doesn't matter. I.e "Who here thinks that my client needs to get up on the stand and beg for mercy while doing jumping jacks in order for you to acquit, by show of hands. OK, Jurors Scalia, Thomas, Alito, and Roberts, thank you." And then question them and get them to acknowledge that they did raise their hand. If you don't identify who they are we don't have any way of challenging a later cause challenge denial. Similarly, if the state or judge asks a show of hands question and doesn't identify who raised hands and its good for us, when you get up you should say "OK, Minnie, Mickey, Donald, and Daffy I saw that you raised your hands when the state asked if you would believe a drunk badger if they slapped a cop uniform on him" and get them to acknowledge it.
4) To preserve an erroneous state peremptory, you must identify the juror as a member of a protected class (everyone is a member of a protected class, i.e. "Bill Clinton is a white male") and request a race/gender neutral reason. The more you can get on the record about the state's reason being BS (i.e. same reason existed for another juror state didn't challenge) the better.
5) To preserve erroneous denial of your cause challenge, you must have exhausted your peremptory challenges, you must request additional peremptory challenges and have that request denied, and you must be able to identify a juror who sat on the panel that you would have stricken with the additional peremptory. I.e. "due to the court's denying my cause challenge on George W. Bush I was forced to use a peremptory challenge on him. If I could have I would have used that peremptory challenge on Dick Cheney, who is sitting on the jury."
5a) As a sidenote if you think there is a legitimate issue with a cause challenge denial you may want to consider using up your peremptories even if you wouldn't have otherwise to preserve it. Obviously this is subject to your judgment, if you think you have a great jury of course its always better to win at trial than on appeal.
6) If you don't object to something the judge or state says to the jury, we can't appeal it.
7) ALWAYS say "I tender the panel subject to all previous motions and objections." Even if you don't think there's any issue, it never hurts to say this.

Anonymous said...

When can we call the shumie?

Anonymous said...
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Anonymous said...
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Anonymous said...

Preservation of error is trial skills 101. As an appellate attorney, I giggle every time I get to argue that an issue hasn't been properly preserved (which is 50% of the time). There is a little something called fundamental error which allows an appellate court to review an error in the absence of a contemoraneous objection but it is used rarely. Defense attorneys, make your specific, timely objections or lose for your client on appeal.

Anonymous said...

Somebody call the Shumie.

CAPTAIN said...

Mike. I had no idea. This sounds just like something Michael Catalano would say:

Mike Catalano, chairman of the mathematics department at Dakota Wesleyan University in Mitchell, S.D., concedes the math is clear: The more tickets you buy, the better chances you have of winning. Better long-shot chances, of course.

"You are about 50 times as likely to get struck by lightning as to win the lottery, based on the 90 people a year getting struck by lightning," Catalano said. "Of course, if you buy 50 tickets, you've equalized your chances of winning the jackpot with getting struck by lightning."

Based on other U.S. averages, you're about 8,000 times more likely to be murdered than to win the lottery, and about 20,000 times more likely to die in a car crash than hit the lucky numbers, Catalano said.

"You might get some psychological enjoyment from playing the lottery, but from a financial standpoint ... you'd be much better off going to Las Vegas and playing blackjack or the slot machines," he said.

Anonymous said...

Ramirez is a joke, he always looked for ways to affirm big legal errors. Thank God he is leaving.

Anonymous said...

Why don't criminal lawyers learn the rules of trying a case .......don't the people who entrust threir lives and freedom to you merit it?......the appellate courts are not your mommies ....obligated to clean up your messes or fix YOUR mistakes.....trust me trying cases requires a little conciousness of the present

Anonymous said...

3.850 needs to be filed in 2 years...isnt it too late to file?

the trialmaster. said...

first, a good defense attorney would not ask permission to question a juror on entrapment. just do it.If there is an objection then deal with it and have supporting case law to show the court. Never tender the jury if you objections to the jury and you are out of strikes. What is the court going to do but empanel the jury and you do not waive it on appeal.a trial tip from the TRIALMASTER

Anonymous said...

idoit, it starts to run after the appeal is deemed final by the appeallate court. a basic rule any decent lawyer should know.

Anonymous said...

14 shot, 2 dead at North Miami funeral.

I am waiting for Al Sharpton and Jesse Jackson and the entire media to lead the public outcry against black on black crime.

DS sez: said...

2 shot dead and 12 wounded, including a 5 year old , at a Funeral Home in N. Miami last night.
Where is The Most Rev.s Sharpton or Jackson. Does it not count if its Black on Black killing?


Anonymous said...

The Third District is the worst place in Florida to have a criminal appeal decided. That court gets much more excited over which insurance company should pay whom in subrogation than any criminal case. Every week I read the slips from the Second District and wish that the Second heard all criminal appeals from the Eleventh Circuit.

Anonymous said...

People are calling for "Justice for Trayvon," which means the arrest of George Zimmerman.

Now with this North Miami massacre, wouldn't justice for the little girl who was shot and the two men who were killed mean the arrest of those responsible? That would entail people cooperating with police and giving up the names of the shooters. That will never happen.

The black community is its own worst enemy.

Anonymous said...

Shouldnt an appellate court be using its power to correct mistakes, especially when there is not a contemporaneous objection or preservation.

No judge or lawyer can know everything, and mistakes will happen where humans are involved. In what civilized society is it ok for anyone to spend time in prison because a lawyer missed an opportunity to say I object?

It's absolutely crazy. Talk about a risk of trial. You can be innocent, and a momentary missed objection in a days long trial could be the difference between going home or going to prison.

I'll take the probation. No wonder trials are becoming so rare.

Anonymous said...

We renew all previously made strikes and objections, and accept subject to that.

Anonymous said...

Oh captian, my captian.... Mike Catalano is not a math professor but, rather a local lawyer who loves to dig up shit to save his clients. Did you hear the GEICO tape he found proving his client was set up Coral Springs cops? What a find!

Anonymous said...

One has to wonder how bad a lawyer can fuck up before Leslie finds reverable error?

I have seen cases that say you can get a reversal without waiting to do a 3.850 if the record is obvious....like an appeal I did where defense lawyer forgot to ask for a self def instruction after client testified that he was " just defending" himself.

Anonymous said...

Where is everybody?

Anonymous said...

I thought each court room has a little saying over each judge that says "We who labor here seek the truth." Not results based on technical mistakes or crafty tricks of analysis.

Anonymous said...

just wondering if anyone has ever heard of anybody named Trayvon? I have never heard of this name/ How did the parents ever name this kid ? Not that it matters , just wondering.

Anonymous said...

why has no one filed against Tanya Brinkley???

Anonymous said...

Hey-- @12:06---

Trayvon meaning and name origin

Trayvon \t-ray-
von\ as a boy's name is a variant of Travon (American). See Travon for more on meaning of Trayvon.

The baby name Trayvon sounds like Travion, Traveon and Trevon. Other similar baby names are Tavon, Arvon, Craven, Davon, Deavon, Drakon, Dracon, Draven, Tavin, Rayvin, Rayven, Taroon, Taveon, Tavion, Tarron, Taron, Tevon, Travis, Travys, Traver, Trevonn, Tramain, Trevin, Trevyn, Trevion, Treven, Trevan, Trevor and Tyron.


Anonymous said...

Seeking the truth. Ha!

Anonymous said...

Trayvon is a variant of Travon, originally a German name meaning Brave One.
Comes from same root name as Travis.
In 1994 it was the 859th most popular name.
In 1996 it dropped to the 966th most popular name.
Trayvon Robinson currently plays for the Seattle Mariners.

Denver Criminal Defense Attorney said...

This is such an unfortunate ruling. When people are in jail, it is absurd that appellate judges hide behind technicalities rather than decide the merits of an appeal, especially when an objection was made. Preserving error shouldn't require defense counsel to perform acrobatic leaps just to make an appellate record.

Anonymous said...

148 pm - no one gives a shit about ticket lawyer developments - this is a law blog

PS - mikey - stop posting anonymously about yourself.

Barrister of Ballentrae said...
This comment has been removed by the author.
Barrister of Ballentrae said...

The Herald reports: That Lewis and Tein are circling the wagons as The Miccosukee Indians are accusing the two Miami defense attorneys of operating a “secret and sophisticated scheme” to fleece them as they raked in millions of dollars in legal fees representing the tribe and several members during the past decade, according to a lawsuit filed Monday.

The tribe says Guy Lewis, a former Miami U.S. attorney, and Michael Tein, also an ex-federal prosecutor, defrauded the Miccosukees by charging “excessive” fees for “unsubstantiated " work.

Lets see what Dresnick does in the Contempt Hearing. It may be likely that the Clients will testify and bury their Attorneys.

The Barrister