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.
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.