BATS IN THE BELFRY

And rats invading the PD's office? Not if Rory "the exterminator" Stein has his way!

                                 (not welcome in PD's BHB Building).
       
From: Rory Stein
Sent: Thursday, April 25, 2013 3:19 PM
To: All BHB Building Users
Subject: Rodents

Yes, check out the subject line.  This e-mail involves rodents.  At present, the  jail has a significant rodent problem.  They are intending to do something about  it.  As a consequence of their efforts, there is a decent likelihood that some 
of their rodents will attempt to commute to our house.  We are enlisting your assistance in doing what we can to keep that problem out of our building.   Please do not leave open food or food packages in your office or desks.  You can 
store your food in your refrigerator (to my knowledge, they have not yet developed the technology to open closed refrigerators).  Otherwise food scraps 
must go in the trash.  Let’s do what we can to keep the mouse in Disney World and out of the BHB building.  Thanks for your help.

                                       (Not Rory Stein)

DEATH PENALTY:
Judge Murphy sentenced Victor Guzman to death for the stabbing and killing of an elderly 80 year old woman. The Herald article by Ovalle is here.  Murphy's last go around with the death penalty was an override of the jury's recommendation for death.  Scott Warfman and Penny Brill for the State and Charlie White and Bruce Fleisher for the defense. 

APPEAL WHEEL IN THE SKY KEEPS ON SPINNING.
The appeal you are about to read about here in Lightsey v. State is true. No names were changed to protect the innocent or guilty. 

Lightsey was charged with armed robbery and trial was held and the defendant was sentenced on June 30, 2011 to life in prison by Judge Trawick.  Lightsey was 16 years old at the time and the sentence of life without parole was clearly in violation of the US Supreme Court decision in Graham v. Florida 130 S.Ct. 2011 (2010).   Lightsey's PD trial counsel did not timely object to the life sentence based on Graham. That's the first mistake that has Judge Rothenberg upset. But it is far from the last mistake she is ripping the defense about. 
OK- sometimes we all miss some case law. 
But Leslie Rothenberg has her rules of criminal procedure in a tither and she is not going to let go that easily:


While defense counsel may not have been aware of the United States Supreme Court’s 2010 holding in Graham at the time of sentencing in 2011, it is clear that appellate counsel was aware of that decision prior to the filing of his initial brief on July 19, 2012, as the initial brief raises the decision in Graham as the sole ground for reversal of the sentence....
under 3.800(b)(2), prior to filing Lightsey’s initial brief, appellate counsel could have filed a motion to correct illegal sentence in the trial court, and notified this Court of the pending motion to correct illegal sentence....

It is therefore incomprehensible why appellate counsel did not seek to correct the error in the trial court, which based on the clear mandate by the United States Supreme Court most certainly would have been successful. Instead, appellate counsel pursued this appeal and requested an oral argument to address the issue.

Equally troubling is the State’s response. Rather than simply confessing error and proceeding to a resentencing, the State is seeking an affirmance without prejudice to the defendant to file a rule 3.800(a) motion to correct an illegal sentence after this Court issues its mandate, based on the defendant’s failure to first raise the issue with the trial court....
because the error is clear and defense counsel’s failure to properly preserve the argument clearly constitutes ineffective assistance of counsel, the State should have conceded the error and put an end to the appellate wheel spinning. Accordingly, we reverse and remand for the imposition of a legal sentence. 

Wheel in the sky keeps on turning, 
I don't know where I'll be tomorrow. 
Wheel in the Sky, Journey. 

We know where we'll be tomorrow. Not in the 3rd DCA, that's for sure. Happy Friday! See You In Court next week.