You have to believe someone at the 3rd DCA has a sense of humor. Anyone, really.
Because they released this decision: Noel v State, on December 26.
PARDON US: Prior editions of the post had the name of Judge Hirsch spelled wrong. It's "Hirsch" with an "i" as in "I have been reversed" and Hersch with an "e" as in "easy going" for Judge Richard Hersch. Mistaking the two is like mistaking North Korea for Luxembourg.
That's our third, and most likely final mistake of the year.
Judge Schwartz, on the other hand, does not have a sense of humor, at least as it concerns our own dear Judge Milt Hirsch and his propensity to do his job the way he sees fit.
Something is brewing between these two, and it's not a pleasant mutual admiration society.
In State v. Martinez, Uncle Miltie's decision NOT to follow the dictates of the poorly named "Anti murder statute" (as if anyone would be in favour of murder. Well, not including our own misfortunate demise, which apparently many think about fondly). The AMS- section 948.06 for those of you scoring at home- requires a sentence be imposed within the guidelines for qualifying offenders who violate probation. Pretty simple.
In Martinez, our hero found that the statute applied, and then, having considered the testimony of the victim- the defendant's wife- imposed a sentence-364- below the guidelines.
In short, Judge Hirsch did what we pay our Judges to do: being best situated (as appellate courts love to remind us when they are affirming denials of motions to suppress) to evaluate the testimony and demeanor of the witnesses, and best situated to understand the complete ramifications of the crime and the sentence, Judge Hirsch- drawing upon his decades of legal experience (sorry Milt, you're old) as opposed to the prosecutor's probable months and months of experience- issued a sentence that he believed to be fair and just. But unfortunately for the world we live in, not legal. Because woe unto the judge who uses his or her experience in a manner than benefits a defendant. The Florida Legislature (motto: "Getting tougher on crime until everyone is incarcerated") will not stand for that kind of independent judiciary.
And surprisingly, neither will Judge Schwartz, whose opinion is chock full of anti-uncle Miltie phrases and jabs like:
This statute, which could not be more categorical, unconditional, or unambiguous,
clearly establishes that the code and the guidelines do apply to this case. Indeed,
they apply in spades...
below is in flagrant violation of that legislative objective...
It is inconceivable that
the legislature would have countenanced an end run around the statute by
permitting instead the miscreant to be sentenced to prison (or, as here, jail) for any
period, however short – 364 days, 60 days, or 60 minutes – solely within the presumably unreviewable discretion of the trial court.
This last broadside about the "unreviewable discretion of the trial court" directs us to footnote seven, upon which the opinion concludes:
Thus, under the ruling below, the legislative mountain, having labored, has
brought forth a hole in the ground.
Translation: "Don't mess with me. You're not smarter than I am. And your actions are certainly reviewable by my court. Got it?"
Offer: Lunch with Rumpole at Joes and a donation of $1,000 to the charity of your choice for a verifiable cell phone video of Messrs. Hirsch and Schwartz quaffing a few beers together after a hard day at work.
See You Next Year In Court.