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Wednesday, September 02, 2015

AFTER ALL THESE YEARS

UPDATE WARREN SCHWARTZ: 
We've heard that long time REGJB fixture Warren Schwartz had some unexpected surgery today, but that he is doing fine and resting comfortably. We are sure all of our readers join in wishing him a speedy recovery. 

Longtime and careful readers of the blog remember that years ago, in simpler times, we used to summarize the opinions of the 3rd DCA, until it became too tedious to read "per curiam , affirmed."  (literally, "we laughed at your lame argument"). 

The majority of the other decisions were remanding summary denials of rule 3.850 motions for a hearing on the merits. Thus is came as a bitter surprise that after few adult beverage drinks this evening, we went to the 3rd DCA website, and the very first opinion we saw, held the following in Maxwell v. State: 

The State concedes, and we agree, that counsel’s failure to communicate the 10-year plea offer to Maxwell constituted error. “A defendant is entitled to an evidentiary hearing on a motion for post-conviction relief unless: (1) the motion,
files, and records in the case conclusively show that the defendant is entitled to no relief; or (2) the motion or particular claims are legally insufficient. Lee v. State,
789 So. 2d 1176, 1177 (Fla. 3d DCA 2001). “Where the record does not conclusively refute post-conviction claims of ineffective assistance of counsel, the defendant is entitled to an evidentiary hearing on those claims.” Id.

...


The trial court thus erroneously concluded that Maxwell failed to state a colorable claim for relief. We therefore reverse the denial of relief as to ground four for trial counsel’s failure to timely convey the State’s plea offer, and remand
the case for the trial court to either attach those portions of the record that conclusively refute Maxwell’s claim or to hold an evidentiary hearing. The denial of relief as to all other grounds raised is affirmed.

Query: If the "state conceded" the point on appeal that a failure to communicate a plea offer required an evidentiary hearing, where was the state when the trial court was summarily denying the petition? 

Enough is enough. We call on the 3rd DCA judges to do the following: 

1) Buy four dozen boxes of dunkin donut holes. 
2) Buy a corresponding number of coffees. 
3) Hold a three hour course on a Saturday at the Justice Building wherein each judge will be required to approach the blackboard and write the following twenty times: "I will grant an evidentiary hearing in all rule 3 petitions where the petitioner raises an issue of fact and law." 

How many hundreds of times do we need to read this type of opinion until the lesson sinks in. 

BTW - the current judicial practice of having the prosecution write the order summarily denying the rule 3.850 motion seems very suspect in our opinion.  Does Justice Scalia do that? How about judges on 11th Circuit, or even our judges in the southern district of Florida? No. None of them are too busy to do their own readin-and ritin.

2 comments:

Anonymous said...

Glad to hear Warren is doing well after surgery. Not glad to see the deluge of frantic, breathless e-mails about it blasted over the FACDL listserv. This is a personal matter. It's great that you show everyone how much you care, but if you want to know something, pick up a phone and call someone.

Anonymous said...

How will they ever find time to hold such a course when all the Circuit Judges are giving lectures as "Masters of Trial"?