Thursday, September 06, 2012

TIMING IS EVERYTHING

Update: some very minor factual errors corrected below. 

"The 3rd DCA sits next to the FIU campus in Kendall and NOT at the crossroads of 12th street and 13th avenue..." 
which is sort of what this opinion -which everyone is talking about- from the 3rd seems to say. 

Or to put it another, simpler way: trial judges of equal jurisdiction DO NOT have the authority to modify a bond or conditions of release that have been set by another judge. 

The facts: When the opinion starts out: "Hall is a violent felony offender who was charged with one count of lewd and lascivious molestation on a child ages 12-16, aggravated battery with a deadly weapon, three counts of child abuse with no great bodily harm, and one count of harassing a victim/witness in a second-degree felony" you know you have a problem.

Hall pled to prison plus probation. Once released, Hall used that most criminally nefarious of networks- Facebook- to attempt to contact the 16 year old daughter of a former girlfriend.  Going before Judge Rebull, the prosecution  moved to revoke Hall's probation and have him held without bond  because of a 2009 permanent DV injunction prohibiting Hall from "directly or indirectly" attempting  to contact the victim. 

Judge Rebull granted the motion and Hall was taken into custody. The next day the defense team filed a motion to dismiss the affidavit and release Hall, arguing that the use of Facebook to contact the girl did not constitute even an indirect attempt to contact the victim. 

Timing is everything in life. If Kennedy wasn't in Dallas in November of 1963,  perhaps we wouldn't have had the Vietnam war. If Lincoln was tired and didn't want to go to the theater that fateful night,  then perhaps he would have finished his second term and enjoyed the peace he had finally achieved. And if Judge Rebull hadn't taken the day off the next day  (update: to attend a very important judicial conference/college/whatever) after ordering Hall taken into custody,  and if Judge Milton Hirsch hadn't thoughtfully agreed to sit in for Judge Rebull and cover his calendar (update: because he was the designated weekly emergency judge- and talk about bad timing with that!), then surely we wouldn't have the decision in Hall v. Ryan, et. al. 

Judge Hirsch released Hall, and the very next day, on the State's motion, Judge Rebull threw Hall back in the can.


"Rule 3.131(d)(1)(B), Florida Rules of Criminal Procedure, controls. This rule provides, in relevant part:
No judge or court of equal or inferior jurisdiction may modify or set a condition or release...
Judge Hirsch, the alternate judge in this case, was thus without the authority to alter Hall’s bail status under rule 3.131(d)(1)(B)....."
Moral of the Story: Kennedy and Lincoln should have stayed home and Judge Rebull should have gone to work the day after ordering Hall taken into custody for the first time. 
See You In Court. 




27 comments:

Anonymous said...

Just another example of how the justice you get depends on the division your case is sent too.

Rumpole said...

I think that's a pretty immature statement. No one can expect every judge to be the same. And to the extent the misguided guidelines schemes in federal and state court tried to make every judge the same, we now know the failure behind those thoughts is that every case is not the same.

Anonymous said...

Rebull rocks. Put him on the 3rd.

Mr. Justice Milton HIrsch said...

In these troubled times, I am reminded of the statement of NY Governor Thomas Dewey in his first inaugural address to the legislature (and often mistakenly attributed to his farewell address by less serious students of history) "The slippery opinions of the public vacillate day to day, hour to hour, manipulated by the devils of popularity. But history rewards the man who does the right thing..."

And of course the great Ernie Banks from my beloved Cubs: "I always try to hit my way out of slumps..."

So as Teddy Roosevelt's vice president- Charles W Fairbanks (for whom Fairbanks Alaska is named) said when as a reporter in Pittsburgh, PA he reported on Horace Greenley's race for the president in 1872: "There's no quit in that fellow..."

DS said...

OK, So John & Dan lost.
WHY the snotty cpmments. They fought a good fight. They put together a good brief, and did a good arguement/ a noble fight.

Isnt that WHAT WE DO?
We ALL LOSE.
It doesnt deserve snotty comments.

No I cannt spell. In Fact today I would be labelled LD.Gifted.
I DID HAVE Remedial classes in Elementary school.

I can't spell,
Processing problems.
I am a verbal person. I apologize if seeing my learning disabilities in print bothers you.

Get over it and address what I say, not how I say it.

If you want to call me and come to my office, I will bring in my Greynolds Park Elem. report cards w/ Ds in Spelling and Grammer.

I am serious about being
LD.Gfted and having "Special" classes; so Lighten Up!

DS

Anonymous said...

If you are able to read the rules, you would know that Hirsch had no authority and Rebull did. Not a smart idea to appeal! Obviously DS is not the only PD with reading comprehension problems!

Anonymous said...

So what if the first judge goes on vacation, is ill, retires or dies? You can only appeal?

Anonymous said...

I am sickened by DS' latest post on his learning disability.

Not because DS has a learning disability (which he's obviously overcome to a very significant degree). But because he felt compelled to post on it.

The over the top attacks on good and decent people (like DS) that are posted on an almost daily basis are disgusting.

I find it extremely depressing that the jerks who post these insipid attacks got to DS to the point where he felt the need to respond as he did.

And I wonder if the jerks who attack his spelling and such are finally satisfied.

DS, those of us who know you, know you're a stand-up guy who really cares about the system and your clients. Hang in there buddy.

BTDT

tweeting said...

The comments in the Twitter landscape are overwhelming: I have collected a few:

@peteradrian: "Milt showed poor judgment"

@toddakin (the candidate for senate who made the legitimate rape comment) "Judge Hirsch should spend more time thinking before he acts"

@briantannebaum: "social media experts are idiots"

@georgewbush "fool me once shame on me fool me again..no wait..you can't fool me again cause...never mind"

@richardhersch "don't confuse me with the other judge hirsch please"

@judgesoto "I told him NOT to cover anyone's calendar ever again a few months before this mess"

and finally

@mrjusticehirsch "As the great freddy patek, the shortstop for the KC royals once said during an interview..." (140 character limit exceeded)

Rumpole said...

I'm dyslexic. And everyone knows I have a dog complex.

CAPTAIN said...


Could not agree with you more BTDT.

Cap Out ...

Kenneth Weisman said...

Ive got your back David. Your a great guy and a fine caring lawyer.

Twitter2 said...

More comments about Mr. Justice Hirsch from the world of Twitter:

@JudgePandoPandoPando: "Judges should be held to a higher standard"

@ShumieTime "Judge Rebull deserved the day off. WTF giving him a hard time about one day off?"

@briantannebaum "I hate lawyers who get clients from twitter. Idiots."

@chiefjudgejoelbrown "Appoint the limited registry attorney please"

@silentcharlieMiamiPD: " "







Fake DS said...

Tanku verry much. Alway member I am *gifted*

Anonymous said...

BTDT is right.

Fake Kenny W said...

I got your back David even though you wear outdated ties, don't drive a Rolls or Bentley and couldn't get a table at Prime 112 for this weekend if you had lined up last tish a bav.

DS TWEETS! said...

@DS: "thakl;sk fmfoi dkslv wq[p-9rm fm;? kkdl, dndj9 dkk.."

CAPTAIN said...



THE CAPTAIN REPORTS:

DATELINE ...CHARLOTTE ....

LIVE FROM THE DNC

Tonight has an interesting line up of speakers.

The Dems will be parading Ex Republican Governor of the Great State of Florida Charlie Crist as a speaker tonight.

As you may recall, Crist ran as a Repub for the US Senate in 2010. When Marco Rubio garnered much attention and poll numbers, Crist switched to Indepedent. You know the rest of that election story.

Crist is now an attorney with Morgan & Morgan.

Then the Dems will pull out the short dress with Latina hottie Eva Longoria, ex-wife of Spurs Guard Tony Parker. She is most famous for living on Wisteria Lane and banging a gardener. Now she will address millions in prime-time. My bet is on Marchesa or Murad for the dress designer.

That should be followed by VP Joe Biden. He had a great story to tell in 2008. The car crash that took the life of his wife and one year old child and forced him to take the train home every single night from Washington to Deleware to take care of his other two injured boys.

Over the past four years though, he has managed to put his foot in his mouth more time that you can say the words: J Danforth Quayle. By the way, what is Qauyle doing these days?

Then, taking the stage at precisely 10:35 PM, BHO will address a national audience. That is all except for those folks tuned in to the Pittsburgh v. Cincinatti college football game.

Here is the real downer of the evening. Because of the last minute move from Bank of America stadium back inside to the Arena, and a lack of planning by the DNC, there will be NO BALLOONS for the first time in a hundred years at an indoor acceptance speech.

According to Rush Limbaugh, the weather had nothing to do with the move back inside. He says that the current forecast is for a Zero percent chance of rain; (it was 29% in Denver four years ago).

According to Weather.com, the actual forecast is about a 35% chance of isolated thunder storms. Rush is never one to concern himself with facts.

Whatever the reason, Obama needs to explain to the American people what it is he plans on accomplishing over the next four years that will bring more chance for jobs in American.

Because there will be no ballon drop, we were thinking of trying to start the first ever "wave" at an acceptance speech in convention history.

Watch for it.

Cap Out ....


CAPTAIN said...


The Captain Reports:

Received the following email:

Q: Captain, tell us about your first Democractic Convention that you ever attended? And are you really in Charlotte?

A: To my loyal reader, Miami, 1972. What a convention that was. I was covering for a local print and had easy access to all of the politcial figures. There was literally no security back then and I was able to score interviews with Muskie, McGovern, Humphrey, Shirley Chisolm, and even Ted Kennedy, among others. Carried around a old cassette recorder for those interviews and still have those cassettes today.

McGovern accepted the nomination of his party and promptly chose Senator Thomas Eagleton of Missouri as his running mate. Only problem with that choice was that Eagleton had a history of electric shock therapy to his brain that was leaked after the convention.

So, McGovern chose a new running mate, Sargeant Shriver, first Director of the Peace Corp, married to a Kennedy, father of Arnold Schwartzenegger's wife.

They were trounced in the general election by Nixon. It was the worst defeat in presidential election history with an electoral college vote of 520-17. McGovern didn't even win his home state of South Dakota.

Yes, I am here in Charlotte where it did rain for most of the afternoon. I will be on the floor tonight for the acceptance speech. Back to real life on Monday.

Cap Out ....

Mr JUSTICE MILTON HIRSCH said...

Today in court I quoted Kant, Guy de Maupassant, Aldous Huxley, Billy Martin, Lincoln, Jefferson, Patton, De Gaulle, Spiro Agnew, and Judge John Sirica- and that was just during the first two cases on the AC calendar!!!!!

Ovalle and the Herald should really cover my court every day. MSNBC/CNN too.

Captain is a Fraud said...

Captain- if you are in Charlotte at the DNC- what does the Hologram on the floor pass show and where is it located and what color is your pass? Don't bother googling it- its not on Google.

Joker.

Anonymous said...

If Comment Moderation has been enabled, why do you allow someone to use Judge Milton Hirsch's name. Is it O.K. to be unethical if the target is someone that you do not like or are jealous of? I wish there were an alternative to your blog. The only thing missing are fart jokes.

Anonymous said...

McGovern trivia: he won Alachua County. Best thing the Gators ever did.

Rumpole said...

I do NOT allow anyone to use Judge Hirsch's name. People who comment as "Mr Justice Milton Hirsch" are clearly engaging in a PARODY which in the legal sense is protected speech. If someone was to attempt to post a comment as a local figure by using their name (as opposed to the parody name of Mr Justice- which is a term used only by supreme court justices) I do not allow such a comment until I can verify that the person in fact made such a comment. I am very sensitive to the attempt to besmirch a person by attempting to have them speak on an issue they don't believe in.

Ex Black Jack Dealer said...

Speaking of Facebook there is a case coming out of the 4th DCA in which a defendant tried to recuse a judge from his case because the judge was facebook friends with the prosecutor. The judge denied the motion and the 4th DCA reversed. Case is Domville v. Florida.

DS said...
This comment has been removed by the author.
Anonymous said...

@9:49--- The only thing missing are fart jokes.

Here you go--

What is Green and Smelly?

--The Hulk's farts

Did you hear about the constipated Wheel of Fortune player?

-He wanted to buy a bowel.