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Monday, March 16, 2015

PER CURIAM

"Traditionally it may be pointed out that a ‘per curiam’ is the opinion of the court in which the judges are all of one mind and the question involved is so clear that it is not considered necessary to elaborate it by an extended discussion."
Newmons v. Lake Worth Drainage Dist., for Use & Benefit of Martin, 87 So. 2d 49, 50 (Fla. 1956).

In Vega v. State, which was a sexual predator  incarceration hearing in which the defendant's sentence had expired but the State still sought to keep the defendant in custody, there was a trial in which the jury's verdict was that the defendant should not be held in custody for any further period. 

The judge promptly ignored the verdict and ordered the defendant into custody. 

The defendant appealed. 

Seems pretty serious. A case of first impression for sure. Ripe for a well reasoned opinion setting precedent for the State. The type of case appellate judges presumably fight each other for the right to write the opinion. 

And the 3rd DCA in Vega v. State did this: "Per curiam, affirmed." 

For those non-lawyers who read the blog, "per curiam" does not mean "we punt", or "scaredy cat", or anything other than what is stated above. 

So here is what we have- a decision of a trial court incarcerating a defendant who has served his sentence and against the verdict of the jury. 

We have the Fifth Amendment to the Constitution of the United States which says, inter alia, that no person shall be deprived of life or liberty without due process of law. 

And we have the 3rd DCA which says "per curiam, affirmed."

Puzzling. Truly puzzling. 

See You In Court. 

20 comments:

Anonymous said...

Would the Fla. Supreme Court grant cert in this case despite the PCA? Would a feeral distric court entertain a peteition for writ of habeas corpus given the recent rulings by the U.S. Supreme Court reaffirming the rights to have issues determined by juries instead of judges?

Anonymous said...

Rothenberg, Lagoa and Fernandez ... and you wonder why it was a PCA affirmed?

Anonymous said...

The fucking third! What an institution. Where do they find so many supposedly educated people who have sworn allegiance to the law yet have no integrity. Isn't there any one there with the decency to write an opinion? Folks like these is why the world has suffered so many deadly oppressions. Stalin would be proud.

Anonymous said...

https://www.youtube.com/watch?v=poL7l-Uk3I8

nice commentary on elected judges

Anonymous said...

Migna upheld!

Anonymous said...

Sorry 11:59. Can't blame the election process. All three appellate judges were appointed.

Anonymous said...

BIBI!!!

Say it ain't so?

Anonymous said...

How do we get people to respect the law and the people who enforce it when government, judges included, simply can't do the right thing?

Has Leslie Rothenberg ever given a defendant a break?

Anonymous said...

Great post. But as I understand, the US Constitution does not apply to the political process, and courts are increasingly political, unfortunately. And it goes without saying, self-regulation of the legal profession is a farce. Just look at the JQC.

Anonymous said...

The problem with "Per curiam, affirmed", it precludes an appeal. No opinion = no basis for appeal.

See Jenkins v. State of Florida, 1980, per curiam affirmed decisions have no appeal to Florida Supreme Court.

The Jenkins decision set a precedent for per curiam affirmed (PCA) decisions by Florida's courts of appeal that affirm trial court judgments without providing any reasons or justification.

Jenkins v State of Florida, 385 So.2d 1356 (1980)

Philip H. JENKINS, Petitioner,
v.
STATE of Florida, Respondent.
No. 59087.

Supreme Court of Florida.
June 26, 1980.

https://www.courtlistener.com/opinion/1742174/jenkins-v-state/

Anonymous said...

also see, 368 Stetson LR 2003

CONFRONTING A PCA: FINDING A PATH AROUND A BRICK WALL, by Steven Brannock and Sarah Weinzierl

"An appellant dreads nothing more than the receipt of a thin envelope from the district court of appeal containing an adverse per curiam affirmance (not so affectionately known to appellate lawyers as a “PCA”). After months, and perhaps years, of effort in the trial and appellate courts, the appellant is rewarded with the equivalent of “you lose” without a word of explanation. Worse yet, in most circumstances, a PCA is the end of the line for an appeal.[fn1] In Florida, with one possible exception, a PCA cannot be reviewed by the Florida Supreme Court.[fn2]"

http://www.stetson.edu/law/lawreview/media/confronting-a-pca-finding-a-path-around-a-brick-wall.pdf

the trialmaster said...

It was a good decision. This pervert would have been out on the streets and would have repeated his criminal activities.

Anonymous said...

It may have been a good decision factually, but it not a good decision legally. Let's just keep all the defendants we don't like without an explanation? Makes no sense. The judge is supposed to follow the law and apply it. How can this be a good decision?

Anonymous said...

If the legislature wanted to lock up people judge because a judge feels like it, well, then, that is a good decision.

We're talking about freedom here.

The 3rd DCA has become such a joke.

South Beach Dandy. said...

What a wonderful meal I had last night at Eleven Madison Park. Most of you cannot afford to eat there. But I can.

Kissimmee Kid said...

The idea that there is no explaination for a PCA is stupid. There is an easy way to find out why the court issued a PCA. READ THE OTHER SIDE'S BRIEF!!

Trial lawyers are such dummies.

Juniper said...

Kissimmee Kid: bite me. I've done enough trials and written enough appellate briefs to know that what an appellate court decides can have very little to do with either side's arguments. Appellate courts sometimes have their own agendas.

Kissimmee Kid said...

Jupiter,

You get one shot at a trial.

I have seen lots of crap thrown at the wall in poorly written briefs. Bad writers spewing nonsense. I've seen their arguments taken apart by good writers who cite to the record.

In the many PCA's I have seen, the reason for the PCA is set out in the Answer Brief. "Not preserved" is a common theme. Usually the reason a case gets PCA'd is because the trial lawyer didn't do his job; then, they bitch because, "they didn't write an opinion.

I bet you guys would really love it if they write, "trial counsel did not raise this before the trial court," or, "this issue was not preserved."

Anonymous said...

BSPCA

Thore Henki Holm Hansen said...

I am a Norwegian who recently received an infamous PCA from the 5th DCA in Florida, where my attorney stated it could not be appealed to the Fla. Supreme Court because it didn't offer a written opinion on the merits.
I have to question your politicians and courts comprehension of the English language. A PCA is a written opinion "Affirming" the lower court's findings on the merits of the petition, which in every respect is a written opinion, and an appeal to the Fla Supreme Court should focus simply on the findings of the lower court which they affirmed. Or is Webster's Dictionary obsolete in Florida?
Or does the relevant section of the Fla constitution specifically state that a PCA is not appealable?