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

Friday, July 19, 2013

SCHWARTZ v. MILLER

A couple of rules to live by: You don't tug on superman's cape; you don't spit into the wind; and when the 3rd DCA tells you TWICE not to sentence a defendant as a Violent Career Criminal, you better damn well listen. Unless you're judge Bronwyn Miller. The decision in  Hearns v. State,  lets all of us know what happens when you ignore the 3rd DCA and Judge Schwartz, because even in winter, the lion can roar.

In a nutshell, here's what keeps happening: Judge Bronwyn Miller keeps sentencing poor Mr Hearn  as a violent career criminal. And the 3rd DCA (and once the Supreme Court) keeps telling her she can't do it. Give her an A for tenacity, and an  F for fairness and common sense. 

"It is unnecessary to detail the depressing story of the lower court’s and the state’s failure to follow our, and the supreme court’s, repeated, express, and emphatic (1) holdings that, because one of the three offenses relied upon to establish Hearns’s status as a “violent career criminal” [VCC], as part of the substantive charge of possession of a firearm by such a person, that is battery on a law enforcement officer, did not qualify for that designation, Hearns could simply not be convicted and sentenced as one."

And here's what FN (1) is: "And we mean it this time."

For those of you scoring at home, follow the bouncing defendant/appellant as his case goes from circuit court, to the 3rd to the supreme court, and back all over again:


I) Hearns v. State 912 So. 2d 377, 379-80 (Fla. 3d DCA 2005) (“Hearns did not qualify for sentencing as a VCC.). The fun is just beginning. 


II) State v. Hearns, 961 So. 2d 211, 219 (Fla. 2007) (“[W]e approve the district court’s reversal of Respondent’s life sentence because BOLEO is not a forcible felony under section 776.08. . .”). Thus spaketh the Supremes.

III) Case goes back to Judge Miller, who just can't help herself and sentences Hearns as....A VCC.  Because one reversal is not enough. 

IV)  Hearns v. State, 54 So. 3d 500, 502 (Fla. 3d DCA 2010) (“By our mandate, we foreclosed the possibility of resentencing as a violent career criminal. We thus reverse and remand with directions that Hearns be resentenced in case number 98-34265 without any violent career criminal enhancement.”). Because we mean what we say and we say what we mean, sentencing Hearns as a VCC is just plain mean. (A little Dr. Seuss in the midst of all this craziness can be a good thing.)

So the case goes back to judge Miller for re-sentencing. And by now you should be seeing a pattern:

V) And the 2013 "judicial cojones" award goes to the Judge who just doesn't care what the 3rd DCA does....the envelope please....Bronwyn Miller- who sentences Hearns as a .....VCC! Again!

Which brings  us to this gem of an opinion:  
 Hearns v. State   (2013):
Notwithstanding this history, we are now faced with an appeal from another life sentence imposed on Hearns “for possession of a firearm by a violent career criminal” [VCC] This has got to and will stop. We will not engage in another futile endeavor to give the lower court still another opportunity to follow the law...
Rehearing is dispensed with. The mandate shall issue immediately.

So, who is betting that upon re-sentencing, Judge Miller, just for kicks, re-sentences Hearns as a .....VCC? Wouldn't that be something? Wouldn't you love to write the brief on that one? Wouldn't you want a color chart to gauge just which degree of crimson Judge Schwartz would turn upon learning that "woops, she did it again"?

But alas, this is not the movies. 

We think. 

Chutzpah  is the quality of audacity, for good or for bad. The Yiddish word derives from the Hebrew word  meaning "insolence" or "audacity

See you in court, where the real fun is. 



  

28 comments:

Anonymous said...

Can you please post a link to the opinion?

Anonymous said...

Judge Bronwyn Miller is not a renegade on the bench, so there must have been some kind of misunderstanding??? Does anyone have the inside story about how this re-sentencing went down?

Anonymous said...

And you don't mess around with Schwartz...

4813 said...

THE THRILLER WITH JUDGE MILLER!
THE DUELING ABOUT THE RULING!
THE ALTERCATION ABOUT THE CONDEMNATION!
THE ROW ABOUT BILLY MONROE!
THE MELEE ABOUT THE V-C-C!
THE DEBATE ABOUT BILL'S THIRTY-EIGHT!
THE RUCKUS IN THE HALLS OF JUSTICE!
THE CONFRONTATION ABOUT THE DESIGNATION!
THE RERUN ABOUT BILLY'S GUN!
THE CONFLICT ABOUT THE CONVICT!
THE BATTLE ROYALE WITH JUSTICE AL!

CAPTAIN said...


THE CAPTAIN REPORTS:

To 3:12 pm. .....

Read the opinion. Footnote 5 explains why Miller tried tried again.

The basis of the ruling seems to have been the fact that Hearns had been convicted of still another offense which did qualify under the law for VCC status. Because, however, that conviction was not contained in the information, its substitution for the unqualified offense—and because the charge in question is substantive, requiring the designation of the particular crimes in the charging document—would amount to the forbidden result of convicting the defendant of a crime with which he was not charged. See Pittman v. State, 22 So. 3d 859 (Fla. 3d DCA 2009).

Cap Out .....
captain4justice@gmail.com

Anonymous said...

I thought you were joking about "And we mean it this time" and "This has got to and will stop."

I thought you added it in there. But it's really in the opinion.
Ouch.

Big Fan said...

What a wonderful piece of writing Rumpole. You have real talent. i laughed out loud a few times. You're wasting your time as a lawyer.

Anonymous said...

Miller is vindictive and will seek to sentence anyone to the max if she can. There was no confusion on her part, she was just trying to outsmart the third.

Anonymous said...

Actually Hearns was not sentenced as a VCC but an HVFO which he qualified for. The real issue was whether that sentence violated the prior mandates. None of the prior opinions reduced his conviction for possession of a firearm by a VCC to possession of a firearm by a convicted felon as this opinion did. Further if anyone really wants to look at the opinion they will see the information in fact charged sufficient predicate violent felonies even without the BLEO. So, lets all rejoice that a habitual offender who is violent will get a lesser sentence.

Anonymous said...

This must have posed quite a dilemma for Brownwyn-Miller; her desire to max out the Defendant and her desire to kiss up to the 3rd. I guess maxing out won every time.

Anonymous said...

Captain, too confusing. Simplify.

Anonymous said...



AYN RAND KILLED SEARS

http://www.salon.com/2013/07/18/ayn_rand_killed_sears_partner/

Anonymous said...

Miller is one of the nicer judges - leave her alone.

Anonymous said...

Anyone remember Zelman v. Miami-Dade County, 645 So.2d 57(3d DCA 1994). Trial judges kept awarding $40 an hour for criminal defense fees at Dade County's request, despite fact Third kept ruling it was inadequate. Then Chief Judge Schwartz wrote "There will be no Zelman 4." The offending trial court judge-Leslie Rothenberg.

Fake Bronwyn Miller said...

"It is therefore the Judgement and sentence of this court Mr. Hearns, upon another remand from the 3rd DCA that you, sir, are sentenced to LIFE IN PRISON AS A VIOLENT CAREER CRIMINAL.
You have 30 days to appeal........Court is adjourned.

Oh, Ms. Court reporter. One more thing. I want this on the record for the appellate court to review. HOW DO YOU LIKE ME NOW? Ok thanks everyone. Have a good weekend."

the trialmaster said...

I just love the parents of Trayvon complaining the jury knew nothing of their son. If the jury knew that he was 1. a dope smoker2. that he had videos of underage females on his cell phone3. that he bragged on his cell about winning a 4 round fist fight and was looking forward to another.5. that he offered to share a gun with another person and was photographed with firearms. 6. that he was suspended again from high school for various reasons.7 that he had stolen jewerly and other property in his locker. This jury would have been out 5 minutes. He was a puck and his parents should have raised a better kid. If they did he may still be alive for now. This kid was headed for Raiford. Any other verdict would have been a travasty as West said.

Anonymous said...

12 noon shum for a rainy friday?
And save the drama for yo momma.

Anonymous said...

Here's how you avoid being overturned by the Third.

Miller: "Okay Hearns, you are once again sentenced as a VCC."

PD: "But Judge, the Third DCA ruled that....."

Miller: "Let me finish. Mr. Hearns, you have the right to appeal this matter within ten days to the Fourth DCA. Not the Third DCA. Thank you, next case."

You never know, maybe it will work. I'm just trying to think outside the box. I don't see anyone else coming up with any ideas.

Anonymous said...

www.wfsu.org/gavel2gavel/transcript/pdfs/95422.pdf‎

Anonymous said...

Roger that shumie. You're a go to go.

Juniper said...

In your jurisdiction can you ask to disqualify a judge for cause? In this case an obvious and demonstrated prejudice against the defendant (for whatever reason that maybe). It would be fun.

Anonymous said...

Bronwyn Miller could sentence me to life again and again and again. I see her strolling down the hallway into court and she's hot as shit.

Anonymous said...

http://www.local10.com/news/doj-observes-miamidade-corrections-department-after-critical-report/-/1717324/21077498/-/uou9xxz/-/index.html

Anonymous said...

TO: Friday, July 19, 2013 11:45:00 AM

You're pretty much on point. Sad thing is this kid thought he was tougher than he really was, and the outcome is something that happens pretty regularly. Someone thinks they're tough, pummels the weakling (and GZ was soft), and then gets the (last) shock of their life when the puss has a gun.

I think M-D Public Schools has a lot to answer for after mickeymousing the student crime records as reported by the Herald's Frances Robles in March 2012. If the cops had arrested the kid for B&E instead of some school suspension crap, the trip to juvy might have been a wakeup call, at least for his parents, who apparently had no knowledge of his criminal (non)record. Chief Hurley and schools chief Carvallho should be ashamed. Hurley was fired, Carvallho should be.

Anonymous said...

Judge Schwartz means this time that he's calling the Shumie in this case for good.

Anonymous said...

Maximum Miller strikes again!

Anonymous said...

ok, did anyone -- including Rumpie -- actually bother to read any of the other opinions? Hate to spoil an otherwise nifty soundbite but here's the judicial provenence --

Hearns I - Peter Lopez
Hearns II - the Supremes send it back down but not "back to Judge Miller." In fact ...
Hearns III - Jacqueline Scola.

It doesn't get to Miller until Hearns IV.

tsk, tsk, Rumpie .. put down the gin & tonic and actually research your bloggy-woggy.

See you on the 19th Hole . . .

Anonymous said...

The judicial definition of "chutzpah" is found in the case of Zinbrani v. Riveron 495 So.2d 1195 (Fla. 3d DCA 1986) as written by the late and great Judge James Jorgenson.

Footnote 2. [T]his expressive Yiddish word appears in modern English dictionaries as meaning “colossal effrontery” or “brazen gall” but as stated in The Joys of Yiddish by Leo Rosten, “The classic definition of ‘chutzpah’ is that quality enshrined in a man, who having killed his mother and father, throws himself upon the mercy of the court because he is an orphan.”