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Thursday, January 07, 2016

3RD DCA ROUNDUP

Charlemagne ,Charles The Great, Charles I, laid the foundation for the thrones of England and Germany. He is a historical figure of some renown, and his name leads our first 3rd DCA roundup of the year in.....

Charlemagne v. State.  which stands for the unfortunate legal position that a 10-20-life- min man must be consecutive to any other min man. Ouch. 
At the same time, we find the trial court had a mandatory obligation under section 775.087(2)(d) of the Florida Statutes (2014), to impose the minimum mandatory sentences consecutively in this case. See, Morgan v. State, 137 So. 3d 1075 (Fla. 3d DCA 2014) (stating that section 775.087(2) requires “any mandatory minimum term required by section 775.087(2)―whether the defendant fires a gun or only carries or displays it―shall be imposed consecutively to any other term imposed for any other felony

State v. Oliu. (This is the case we screwed up by misidentifying the judge involved for which we have apologized. )
This was before the 3rd on a writ of prohibition. The defendant in the case is/was a Sweetwater police officer (Motto: "the department that once employed a serial killer.") *
The Judge in the case was once in private practice and represented the defendant in an un-related case.  This simplifies the trial judge's involvement with the defendant and the entire Sweetwater police department. Suffice to say, the trial judge was intimately involved with the problems of this officer, and the entire Sweetwater PD. 

The State filed a motion to disqualify. Seem like a no-brainer. But alas, timing is everything in life and as we all know (well, most of us know this, but not the prosecution in this case)   Florida Rule of Judicial Administration (AKA The Rules No One Reads) 2.330 requires that a motion to disqualify be filed within a reasonable time "not to exceed ten days" after discovery of the facts supporting the grounds for the motion. Disclosures about the Judge were made in July. The state got around to filing the motion in September. Bureaucracy in "action" or "inaction" as it were. 
WRIT OF PROHIBITION DENIED. 
HOWEVER....
In an subtle nudge to the trial judge, which requires the discerning reader to carefully peruse the opinion several times before seeing the true artistry of legal opinion writing, the 3rd noted that there was nothing...absolutely nothing that prevented the trial judge from sua sponte (literally "after eating spumoni ice cream" ) disqualifying himself. 

Yes, without violating the biblical prohibitions against Onanism, a trial judge can engage in self reflection and grant a motion to disqualify without being asked; i.e., he can do it all by himself, and as the 3rd points out sometimes that's the safest way. 

Note the artistry in how this is phrased: 
"Although we have denied the petition, we note that rule 2.330(i) permits a judge to enter an order of disqualification on his own initiative. Fla. R. Jud. Adm. 2.330(i) (“Judge’s Initiative. Nothing in this rule limits the judge’s authority to enter an order of disqualification on the judge’s own initiative.”)

The only thing the 3rd DCA left out was "hint hint" but then, they are professional legal writers, and we are a merely a hack. 

* Manuel Pardo was a Sweetwater officer and a serial killer and was executed for his crimes in 2012. He was prosecuted, as we recall, by the late ASA David Waksman. 

See You In Court. 

10 comments:

Anonymous said...

Rump - you've criticized the wrong party again. The Dade SAO is not prosecuting Oliu - first paragraph of 3dca opinion shows it is a Statewide Prosecution case.

Anonymous said...

Please we are the silent majority. Your guest bloggers are the worst. The worst, Make me vomit. Please stop. it's cruel and unusual how bad writers they are.

Anonymous said...

Couldn't disagree more. In ten years Rump I can only remember you apologizing for three posts. One by you reference a judge and health post and the two recent posts by your two guest bloggers. If you have posted 3006 posts as of last week as you said, that's a pretty good batting percentage. You and your team should keep up the good work. Keep those posts coming.

The Professor said...

OK I'm the guy that screwed up, unintentionally, but I screwed up. But 4:19, whether it be the SAO or the Statewide Prosecutor, it is still "the State". It still says the "State of Florida vs." So lay off Rumple, he is doing the right thing.

Anonymous said...

Ok lets ease up a bit. Just came back from a delightful meal at a pop-up restaurant run by these dudes at marina Blue - it was at an empty warehouse at downtown, and with that 18 year old cuban chef Juan carlos just off the boat.

I had wild boar belly- think pork belly but 100X richer and more flavorful. It was braised in bone broth and what he calls a foie gras sauce with wild blueberries. Amazing. My hot gf had local line caught snapper encrusted with planatin and grouper roe. There was a cream of corn compote, a broccoli rabe souffle, and of course, mojitos.

For dessert we both had the homemade coconut ice cream with fried pineapple chucks. The place opened at 530 and the last diners were seated when we were leaving at 830. I love these pop-up places. So cool. Cost 99/person anything on the menu, unlimited drinks.

Anonymous said...

If this original post (now edited w/o commentary) had simply said the State, or as it now reads, the prosecution in this case, I wouldn't have commented. But the SWP is not the Dade SAO, just like the Court is J. Milian, not J. Johnson. Sarcasm and criticism should not be misdirected Prof., or should we call you Gilligan?

Anonymous said...

7:05 - "porch monkey" is a vicious racial slur. Rumpole -- publishing that comment warrants another apology.

Rumpole said...

I just googled it. You are right. Sorry. Removing it.

The Professor said...

9:23 pm - I again ask, where in Rumpole's post doe he refer to the SAO. He referred only to "the State"? Thanks for shout out, Ginger.

Anonymous said...

let me just opine that The Ren, shumie, calling the shumie and the like are this blog's version of "baba booey" somewhat annoying, but a valid tag line nonetheless.

Just sayin...