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. POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Thursday, December 27, 2012

MERRY CHRISTMAS FROM THE 3RD DCA

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... 

The result 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. 


58 comments:

DS said...

Rumple
The Problem w/ Uncle Milty is that he violates the First, Second and Third Rules of Judgeship, that
They teach at Judicial college.
1. Grant or sustain the State's Motions or Objections .
2. Deny or overrule all Defense Motions and Objections.
3. Launch the Defendant.

Anonymous said...

Rumpole - I think you have the spelling of Hirsch's name incorrect in your Blog - it is Hirsch, not Hersch. Was that intentional?

Anonymous said...

The problem with Milt is that he holds his fellow man in contempt. So too does the judge who wrote the opinion. They couldn't be more alike.
Both know it all.


mikal said...

Rumpole,

While you are extolling the virtues and beauty of a snowfall, did you or one of your minions confuse Judges Hirsch and Hersch?

Anonymous said...

I agree with DS. What a bs opinion by the 3rd. It strips all Circuit Judges any descretion at all when it comes to VFOSC's. In this case, the Defendant violated by driving with a suspended license (for which he fixed days later). The Defendant was a first time offender that received a with-hold. Now he must send years in prison because Judge Hirsch is not allowed to do what he believes to be just.

Great job 3rd......

Anonymous said...

No, the problem with Milton is that he sometimes thinks he's above the law. We don't pay him to do as he pleases, we pay him to follow the law. I like him, but at some point he has to come to grips with the fact that he just do whatever he pleases.

BTDT

PS----Schwartz is legally correct, but, again, is far more abusive than he needs to be. It's ridiculous. Funny how we as lawyers can't hammer judges as we see fit, but Schwartz can do whatever the hell he wants (the JQC is worthless on issues involving judicial demeanor).

Anonymous said...

Why is it that Judges tell Jurors in voir dire that for "...over 200 years, we have agreed to live by the Constitution and laws and nobody has a right to violate that even if you do not like the laws, yada, yada, yada...", but then Judges like Milty, Slom, and others think they can make it up as they go along, giving fire power to dumb legislators to take judicial discretion away!!!

CAPTAIN said...


THE CAPTAIN REPORTS:

JUDGE HERSCH is going to be one pissed off dude .....

That's because, every time you GOOGLE Judge HERSCH, this post will now come up.

If you are going to write about

"Uncle Milty", then get his last name spelled correctly:

HIRSCH

Cap Out ....




Anonymous said...

I have been before both Schwartz and Hirsch and they are both jerks who think they know everything.

Anonymous said...

9:35 is right. Peas in a pod.

the trialmaster said...

There is only one "Uncle Milty" and that was the late Judge Milt Friedman.

Secret Judge said...

Judge Hirsch blew it. All he had to do was NOT find the defendant in violation of probation on the grounds that altho the State established the allegation in the affidavit, the actions of the defendant did not shock the conscience of the Court, therefore the State failed to meet its burden, therefore the defendant is NOT in violation of probation. End of story. No appeal under these circumstances. Hirsch may be smart, but he lacks experience. A smart experienced jurist would have found a way to save the defendant, using the principle of equity, without invoking the wrath of the Third. This is the problem when a judge thinks he or she knows it all, and there's a lot of this going around at 1351.

Anonymous said...

I love Milty. He may come across as arrogant, but he is one of the few judges in Miami that took a huge pay CUT to be a judge. You know, the way it should be. He's not afraid to make a difficult decision for fear of not being re-elected.

Anonymous said...

Milt did the right thing by listening to the facts of the particular case and trying to exercise discretion for a just result.

It's apparent the legislature wants circuit judges there just to sign score sheets.

Anonymous said...

This is why we should have been more concerned with the legislative races than with the judicial races in the last few elections. Why should we care so much who the judges are if they're not allowed to do anything other than what the Legislature tells them to do?
We keep electing the bozos that write the laws we don't like. We need to find out which idiots are on the criminal law committee in the legislature and target them - even if they don't live in our districts.

Rumpole said...

Don;t get your panties in a bunch captain. The mistake has been fixed. Judge Hersch will be fine. So will Judge Hirsch.

"Unabridged American Minority" said...

5:33,

You said more than a mouth full, that is what I have been focused on.
I am working on some real initiatives to rectify this anti citizens rights in court legislators.

What do you have in mind ? I am seriously conferring with some movers and shakers to get them to focus on this issue. Year after year we vote for these bozos who put in place this legislation that basically circumvents the Constitution of The United States.

Anonymous said...

The incorrect spelling was an intentional mistake, obviously.

Anonymous said...

Hirsch didn't do what he felt was right, he did what he hoped would get him noticed by the third. Just take a look at the order he issued on the case. 15 pages of Shakespearean quotes and words that normal people just don't use........sad attempt for attention

Anonymous said...

Alan Schwartz is a nasty, abusive, tired little viper who should be retired. His decision lacked judicial temperment. He thinks everyone with who he deals is a serf. He would have done well in a seventeenth century plantation

Anonymous said...

Now you know what all of us appellate lawyer know, Judge Schwartz is bright, usually correct but, a total flamming asshole.

They had to put video cameras in the courtroom for oral arguments because the JQC was tired of getting complaints about him being rude and rather obnoxious.

He turned his chair around a few times, and even laughed about a guy who died of HIV. He called women lawyers names and generally was a real jerk.

That being said, he is a rather smart guy but, his behavior cost him a seat in Tallahassee on the big court.

Most of us who do appeals wish he would really retire, leave us alone and stop insulting judges and lawyers.

Anonymous said...

He could have made a finding that Martinez was not a danger to the community and this all wouldn't have happened. He should know that, and likely did this to get his name out again.

Anonymous said...

Time and time again, when is everyone going to learn, Milt Hirsch just doesn't know the law. I also don't think he had to take a pay cut - he didn't have many cases and really didn't win many. Wasn't he sued by his landlord for non-payment of rent? I guess he needed the money.

Anonymous said...

Rumpole, why do you always defend Milt Hirsch? This is the new Rumpole. Maybe the person was right the other day when he said Milt=Rumpole. Hirsch is arrogant and thinks he can get away with anything.

Anonymous said...

Hold up everyone on this all important blog! AM is getting together with the movers and shakers. Did you here that? The movers and shakers! NOW IS THE TIME TO ACT!

Anonymous said...

Milt did not take a huge pay cut. Infact, he was on the balls of his ass when he ran for judge. He was not making a lot of money. This is a fact. He was a sub par trial lawyer with an inferiority complex. The good thing about him, however, is that he enjoys wine for breakfast. But just wait until he gets to civil. He will not be a friend to money makers - he is full of envy. A player hater.

Anonymous said...

AM: Stick to the policy arguments, you obviously don't understand the law. The guidelines have been upheld time and again by the courts (I guess you think that legislators aren't the only "bozos").

BTDT

Anonymous said...

@8:14 There is something very wrong with AM. He is an attention seeker.

Anonymous said...

Anybody else working?
Shumie time.

Anonymous said...

BTDT and others,
Because I honestly don't know:
Are the sentencing guidelines that we're talking about in the Milt case actually 'guidelines'? Or is it a mandatory minimum? Is it just a semantical thing that Rumpole used the term guideline?
In my way of thinking, if something is a guideline, it's not mandatory, just a very strong recommendation - you can go outside of something that's a guideline for good reason.
If guidelines have been Constitutionally upheld, we still could have the Legislature change the guidelines. Don't want to agree with AM, (and I don't know about his whole circumvention thing) but it does seem like the Legislature is the place to try and fix what seems to be the problem. (and I know the legislature can't fix the problems of Hirsch and Schwartz)

Anonymous said...

Best thing about AM is that his picture is right near his comment. That way, you can skip right over the whole thing without have to read his unreadable drivel.

"Unabridged American Minority" said...

5:36,

lol Your a real sour puss :(.
I hope you dream about me...lol

BTDT,

926.0024 Do your homework.

*check mate (Think before you reply).

In my Colin Powell voice:"Think".

The law is the law and "We the people who interpret it most times are f.o.s. and biased. Yes I meant leg's, and Jud's.

"Unabridged American Minority" said...

5:36,

lol Your a real sour puss :(.
I hope you dream about me...lol

BTDT,

926.0024 Do your homework.

*check mate (Think before you reply).

In my Colin Powell voice:"Think".

The law is the law and "We the people who interpret it most times are f.o.s. and biased. Yes I meant leg's, and Jud's.

"Unabridged American Minority" said...

I notice also a lot of you are lazy bias blowhards in college and in the judiciary.

You hate me cause the lights are on and someone is home...

Anonymous said...

AM is the legal version of the New Black Panther party.

Anonymous said...

We hate you A.M. because you are stupid and a racist but not necessarily in that order. Wishing you the worst year ever!!!

Anonymous said...

LOL. I love reading AM's posts. Clueless, but funny.

BTDT

Anonymous said...

AM, it is you're, not your! Start there and move to the legislation when you learn how to spell!

Anonymous said...

So much hatred in the comments on this blog.

"Unabridged American Minority" said...

11:31pm,

Obviously your one of the professional lazy plea bargainers. You could care less or are and asa. (assistant state asshole). Contrary to your racist ass beliefs all minorities are not in "the hood" as your mommy and daddy indoctrinated you to believe.

BTDT,

Corrections corp of America, GEO Grouop, and Management training corp lobby Tallahassee like crazy and push pro incarceration legislation. The U.S. has a 25% population incarceration % that alone should alarm combined with the fact that there are 16 exceptions to the 4th amendment. The limitation and the bias of the judges further perplex the situation I give a damn about reclaiming "Justice and Liberty for all."

More troubling food for thought when you conduct a search on the clerk's portal the choices are no longer white, black, and hispanic. The search criteria list only black and white. When did hispanics become white in America?

That is a subtle indicator of what the mindset of the administrators.

Bottom line is someone needs to give a damn. I do and all it takes is one voice to strategically start to change things for the betterment of the so called just us system. The judges in this building hardly ever make conscious, unprecedented decisions. Most are ASA's from the bench and have serious issues. This is not a game justice should not be a corporation and have the impropriety of being manipulated and controlled by for corporations. That alone should make you want to bust your ass a "Lawyer" not a mundane p.o.s. "attorney".

Roy Black made the point that's where I got the damn anvil on the head moment. Roy is right this is a social economic conveyer belt to prison ran by legislators and magistrates who could care less.

Anonymous said...

Can everyone please refer to AM by his new and improved name Unabridged American Minority or UAM for short?

Anonymous said...

AM......I will respond to your post though I am convinced you're just trying to get a rise out of us. Keep posting your nonsense though. It's amusing as hell.

For the rest of you who actually care about the issues and are doing something about them, check this out: http://www.floridataxwatch.org/Research/Centers/CSJ.aspx.

BTDT

PS---if you insist on pretending that you've actually been to law school, you might want to stop confusing bad policy with unconstitutional action.

Anonymous said...

There are only four words a judge has to know:

GRANTED
DENIED
SUSTAINED
OVERRRULED

Milt has a big ego and a need to let everyone think he is smart. He is not. A smart judge knows how to do what he wants to do within the law and not challenge it.

As far as money is concerned, Milt did not make a lot as a lawyer. He wrote a book on Search and Seizure that made a little money. His wife, Ilene, was always the bread winner.



Anonymous said...

Ridiculous!

Hispanic is a subset that some dummy made to better track people.

According to the international crime collection data which is what truly matters people are either Black, White or Madarim.

Additionally, when what you call a Hispanic travels to Spain they are not called Huspanic. They are called White if infant they are White.

UAM is truly confused. You are so confused you might actually be the clerk of the court. Get it together. This is not Canada.

DS said...

As my Domincan estranged wife sez: The only Hispanics are from Hispanola !

Anonymous said...

5:21...............a judge can depart from the guidelines only under certain enumerated circumstances (minimums may not be waived by a judge).

BTDT

Anonymous said...

UAM, if you were really concerned with making a difference, you wouldn't be referring to essential parties in the criminal justice systen as assholes, anonymously, in the comments section of a gossip blog. We all know that you are a law student, who, if your true identity was revealed, would never pass the character and fitness examination. Maybe we need to work on revealing who UAM really is? Any computer savvy lawyers interested?

Anonymous said...

The men in in Congress who refuse to raise taxes on just the wealthy deserve credit not scorn. Stand strong boys. Taxes should go up on all or none. Fair is fair.

Anonymous said...

9:49-- Agree with your comment.

Anonymous said...

Everyone's fav cigar shoppe is now 4g friendly, wifi enabled, and serving yerba matte lattes with your cigar. So come and drive as far west as you can on Bird road and just before you hit the everglades, look for a jolly man who's the proprietor.

Anonymous said...

949............actually, I'd love to see AM as opposing counsel, lol.

I don't think he's real; I think someone is just messing with us (which is pretty funny).

BTDT

Anonymous said...

Rumpole why don't you just crawl into a hole and die?

Anonymous said...

so lets see, taxes should go back to the same rates as the clinton years but just for professionals who make over 250k. obama is such a pinco douche hater of the player.. we are going off the cliff baby. and i love it. class warfare sucks.

Anonymous said...

Dox UAM!

Rumpole said...

4:32, knowing who you are, I've given this some careful thought and respond as follows:
First- sitting here in my vacation home which is worth so much more than you will ever earn in your miserable, squalid life- I've decided that I like it. I earned it, why not enjoy it?
Second- I worked hard at my chosen craft. Did very well in school. Got great jobs. Made a lot of money. Why should I crawl in a hole and die and not enjoy the fruits of my labours?

Third: the very existence of this blog, which you cannot stop reading, bothers you to no end. But more importantly, it brings a lot of happiness to other people. And that's good karma. I would forfeit that if I crawled into a hole and just died.

So for those simple reasons, and a lot more, I have decided to live, work, and enjoy myself.
How's that for an answer?

Anonymous said...

That's just fine actually.live the way you want to live. U an old time baller. But I'm forty and I'm trying to get rich. Obama and the Dems are fronting on my fortune. Piss off. All of you. I'm an eazy-e republican.

CK

"Unabridged American Minority" said...

Bravo well said Rumpole,

Their are some serious imbeciles who read this blog. I deal with them every day. Ironic part is that I whip their lazy bias asses, even with their dismissive attitudes.

7:55 pm,

Knowing who you are, just by the emotion is which you have posted (lol). I'm just going to say this, work on being an intelligible, integrable, "attorney". You stink, that's why I had to spank you.

BTDT,

In America an astute "African American Lawyer", had white men and women paying to ride his coat tail and associate with his practice. He was once also ridiculed and treated indifferent until he mercilessly, show that he was better than most white "attorneys". That man is my Archetype of "Black Lawyers" one day I shall be as well. You people are full of venom and hatred. As the first Black Deputy D.A. of Los Angeles he was profiled, and during broadcasted high profile cases could not directly address the white attorney's who were beneath him in intelligence and rank. That's my motivation I know what you people are about and how it is that you think. That's what erks you, tuff. In due time you will witness and respect the manifestation that you cannot hinder though you attempt to impede as your foreparents and counterparts.

Know this, "knowledge makes a man unfit to be a slave".

~Fredrick Douglas~

~AM~

Anonymous said...

I'm calling BS! If all that was true, he wouldn't be a VFOSC. Get your facts straight.