Wednesday, May 22, 2013

PER CURIAM, AFFIRMED

FREE ALEX MICHAELS UPDATE:
The 3rd DCA was a bit busier yesterday than we realized. This is their latest order:
That portion of this Court's order dated May 17, 2013, which grants the petition for habeas corpus, is vacated as improvidently entered. However, the stay shall remain in force and effect pending further order of this Court. The cause is remanded to the trial court for a determination whether to require the posting of a supersedeas bond. This Court retains jurisdiction over the matter which is treated as a petition for writ of habeas corpus. The petitioner is hereby ordered to file all relevant transcripts, including the evidentiary hearing and the violation of probation hearing within ten (10) days of the date of this order. The petitioner is hereby ordered to file an amended petition setting forth any and all legal arguments going to the challenge of the conviction and sentence within five (5) days of the date of the filing the ordered transcripts. The State of Florida is ordered to file a response to the amended petition within ten (10) days thereafter. Further, a reply may be filed five (5) days thereafter. No extensions of time will be granted. This cause is hereby set for oral argument on TUESDAY, JULY 2, 2013, at 10:30 o'clock A.M. with ten (10) minutes allowed each side for presentation of oral argument. WELLS, C.J. and SHEPHERD and LAGOA, JJ., concur.


Currently the courtroom for the oral argument is sold out. However, we might be able to get our hands on two, lower level, on the aisle. $350/a seat. Send us an email if you're interested.



So we're a couple of months into the Judge Soto administration as chief judge of the 11th Judicial Circuit. Anybody notice any changes?

3rd DCA PCA PARTY!
A brief check of the 3rd DCA opinions issued today shows twenty eight (28!!!) PCA's of criminal cases. There was one written opinion in which the conviction was affirmed in all respects except a remand to correct a sentencing error as "to a nonexistent statutory section."  That's how bad it's gotten folks: even nonexistent criminal convictions are getting affirmed. 
Twenty eight PCAs. None of these defendants were entitled to even the slightest of opinions? A few words here; an apodictic there?  Appellate lawyers know that the practical effect of a PCA is that there can be no appeal to the Florida Supreme Court. So what's going on here? Nobody is filing meritorious appeals worthy of even brief discussion, or....are our 3rd DCA judges making some tactical decisions about their legal decision? 

We heard you:
Over the last few weekends readers complained about the anonymous posts by various (?) individuals bragging about their sexual exploits. The general tenor of the comments were that that attorneys, usually older men, were having liaisons and assignations  with employees, or interns or attorneys, usually younger women. We heard your complaints and will no longer post such comments absent exceptional circumstances. Thanks for reading. 

See You In Court. 

30 comments:

Anonymous said...

Seems like Rumpolious has succumbed to the political correctness censorship mindset.

Anonymous said...

Hey Rumpole,
Have you read the briefs on appeal? Do you have any reason to believe that the appeals were meritorious? Unless or until you have read the briefs and responses, you really should not criticize the Third for PCA's. If the issues raised on appeal were stupid, then the 3rd is well within its rights to PCA the conviction.

Anonymous said...

Rump- saw an article circa 1955 and later an obit 1961 on Metropolitan court judge Walter Korbell. Korbell was outspoken (according to the article) for demanding the prosecution turn over all favorable exculpatory evidence in an era way before Brady v. Maryland. His unofficial nickname was "ding dong" which apparently he got while serving in the Marines in WWII where he fought in several battles as a Captain, including Guadalcanal.

The Obit lists that Korbell was survived by "his long time friend and roommate and hunting and fishing buddy" Kenilworth Fraiser. So apparently ol Korbell was in the closet for his life. Those were the times unfortunately. The article says that the gentlemen lived on a farm in south dade and raised strawberries and chickens and that Kenilworth's strawberry/rhubarb pie was much prized among the courthouse regulars at Flagler street (there was no Justice Buidling back then.) Korbell was known for only wearing black, silk bow ties, and starting every Saturday with a shot of bourbon, and finishing every work day with an iced martini. He was also an amateur and expert ornithologist and often consulted by the Audubon society on sightings of unusual species in the Everglades.
Anyway, a fascinating read about someone I never had heard about.

Rumpole said...

You could well be correct. Still, 28 of 29 cases PCA'd. 28 cases with absolutely nothing to speak about? It bothers me.

Anonymous said...

Rumpole

Thank you for paying attention to your readers, Lets concentrate in matters such as the one in your Blog today Per Curiam Affirmed. Yes 28 is like a huge number, a huge number no even to express any opinion. What can be done? Who checks on them?

Anonymous said...

Well, the first thing that could be done is for lawyers who feel that way to express themselves on the topic. The number of criminal PCAs in the Third is very high. If there is an insufficient number of judges on the Court to allow the Court to write opinions, then the Bar should get behind an effort to increase the number of judgeships on that Court. What should be considered is an amendment to the Appellate Rules that would require in all criminal PCA decisions that the panel certify that no issue presented in the case could reasonably be said to conflict with a decision of a sister district court or the Supreme Court of Florida. The opinions need not be long, just with sufficient facts to identify the issues and be able to determine whether the decision conflcts with another decision which would give rise to the ability to seek cert to the Supreme Court.
The district courts of appeal are courts of final appeal, but there is cert review available, which is effectively precluded by a PCA decision. Joe Klock

Anonymous said...

Two words Rumpole: hibernation, seven.

Heat Fan

Anonymous said...

Rumpole,

I am one reader who objected to your publication of the pusbucket chronicles. Thank you for listening and responding as you have. Very classy.

Anonymous said...

Rumpole: kudos for not making this website a pathetic version of penthouse forum.

Anonymous said...

Judge Soto has her work cut out for her. On Flagler Street, the level of ineptitude among the circuit court judges is at an all time high, with the influx of these little girl judges who are, for lack of a better word, just plain stupid. I could name names but those of us who practice there are well aware of the bottom feeders, the worthless flotsum, who are the laughing stock of the courthouse. The problem for Judge Soto is that there is no place to send these morons. How debasing this must be to the other, competent judges that remain, though few and far between. Competent people need to run against these dweebs who are coming up for re-election.

Anonymous said...

Clearly, the pettifogger erotic adventures were fictional in nature. Just think about why they were. It shouldn't take you long to come with several reasons.

The worst indictment of them is that they were boring.

Anonymous said...

Prior PCA study:

http://www.flcourts.org/gen_public/pubs/bin/pca-report.pdf

Anonymous said...

Sometimes I think we are better off with a bunch of P.C.A.s in criminal cases when you consider the alternative--more published bad law as precedent. At least we can still try to get a break on discretionary rulings in the trial courts.

Anonymous said...

More important than the two days in jail is the issue of whether Judge Miranda ADJUDICATED Mr. Michaels in comptempt. If the JUDGMENT of contempt states he is adjudicated, that is an automatic 30 day suspension form the practice of law by the Florida Bar.

Somehow I think the HB action is more to avoid an adjudication than jail. If I were Judge Miranda, and I have been, then I would have long ago adjudicated him guilty of direct criminal contempt, dotted my i's and crossed my t's and let him be suspended. A few suspensions and maybe his behavior, not his zealous representation, would change.

Judges tolerate too much from this guy. Sometimes a line has to be drawn in the sand, popular or not. It is about the dignity of the court, not the personal feelings of the judge. I, for one, applaud Judge Miranda's actions and the courgage she has shown.

Anonymous said...

Free Alex Michaels! Free Mary Jane!

Anonymous said...

With all due respect, Joe, I have to say that your assessment that more judges are needed is accurate, but the idea that will result in more opinions is not. It is unconscienable that Alan Schwartz spends more time out at the 3rd DCA than most of the active members of the court. It is just as unconscienable that he writes more opinions than others, including some that are issued under another judge's name. The truth be told he should be permanently retired. His arrogance and Napoleonic complex need to excised from that court.

But PCA's are issued to avoid any further review of their decisions. The Florida Constitution forbids the seeking of review by the Florida Supreme Court of PCA decisions. So, the thought that the judges would now leave themselves open to further review, or the justices' rath over additional petitions for cert to review, and deny from lack of time to give full consideration, is not likely.

More judges will at least result in quicker decisions and less delay on other matters.

Anonymous said...

No word on the big PD win in the FL SCt?

D S sez said...

Big KUDOS to P.D. Carlos Martinez & the 11th Circuit P.D.O. in a HUGE Win in the FLA SUPREME Court on the Caseload litigation.

In the End it is a Win for the Clients.

BRAVO

"Unabridged American Minority" said...

12:29,

Do you feel as passionatley about asa's who constantly circumvent the discovery process refusing to turn over brady? Why aren't "fair and impartial" judges apt to discipline those in blatant violation ?

BTDT,

Um, did you see the incident that transpired last night in Mirimar in which masked men dressed in "police swat gear" with "bullet proof vest" that say "police" across the back, beat the crap out of the owner after knocking the door and shouting police. (turn away from fox news and check it out.)

BTDT, debating you is like shooting fish in a barrel. P.S. I'm hope your an asa because lord knows you'd get Pooh Bear convicted for eating honey, and sleep well.

Juniper said...

@10:46 - what he/she/lawyer said.

In my district in CA the court of appeal files an opinion on everything. I'm not sure its so valuable. All I know for certain is that the law may more closely resemble silly putty than I every imagined.

Anonymous said...

Cops Go Undercover at High School to Bust Special-Needs Kid for Pot: Why Are Police So Desperate to Throw Kids in Jail?

http://www.alternet.org/cops-go-undercover-high-school-bust-special-needs-kid-pot-why-are-police-so-desperate-throw-kids?page=0%2C1&paging=off

The Real Fake Cueto said...

It is I his Judicial Excellency,

I tell you the 3rd D.C.A. is nothing they got the idea from me. I've been ruling Per Curiam Affirmed every since I his excellency became a judge.

Follow me on twitter Judge Nebuchadnezzar: @prickjudge

And remember My rulings are sovereign.

Anonymous said...

LOL UIM.............you are funny. Sometimes I really wish I could believe you weren't someone punking us.

BTDT

Anonymous said...

Somebody posted using my name the other day, but it was a really good and articulate post so I don't mind. Jason grey

Anonymous said...

It is not just the PCA's that are being abused. Do a Westlaw search on the number of reversals for new trial at the 3rd DCA this year. There might be 3-4 cases this year.

They nearly never reverse because of prosecutorial misconduct in closing argument. Must be that the circuit bench and SAO are perfect. Maybe someday things will change.

One final note, when Judge Alan Schwartz was Chief Judge, things were different. Judge Schwartz would stand up to the SAO, or anyone else.

Juan Ramirez, Jr. said...

If you think the Third District writes PCAs for such a questionable reason as to avoid Supreme Court review, you should check out Marshall v. State, 45 So. 3d 470 (Fla. 3d DCA 2010), in which the en banc court divided 6 to 4, with a concurrence and a dissent, in a developing area of the law (Crawford v. Washington). Of course, I would never suggest my former colleagues would resort to such a questionable practice. I am sure the panel had good reasons for not writing.

Anonymous said...

Good job Juan. Now if they would only get to work on matters that are before them, maybe we would not criticize them so much.

Anonymous said...

While PCA opinions are short, if you actually read them you will learn the following: of the 29 criminal PCAs, six of them are Anders briefs (if you don't know what an Anders brief is, you should stop reading this blog and start reading the South Florida Lawyers blog); 17 of the criminal PCAs are denials of post conviction relief, 15 of which are pro se. Of the six remaining PCAs, 2 are plenary appeals from adult felony court and four are from juvenile court.

Rumpole said...

That is an excellent point. I will do a follow up post and use your comment. Thanks.

Anonymous said...

It is time to rip the covers off PCA's, per curiam affirmed. I am trying to get PCA's declared unconstitutional as they don't adequately protect federal constitutional rights. Please see mmason.freeshell.org/chase for more details.