EN BANC

On Thursday the 3rd DCA will hear the appeal of  former FBI agent John Connelly en banc (literally "we the many are upset at those the few"). 

Background:  John Connelly was an FBI agent in Boston. 
For most of the 1970's, 1980's and 1990's the FBI was chasing the boss of Boston- Whitely Bulger and his Winter Hill Gang. 
During that time, it was alleged that Connelly became a member of Bulger's crime organization. Connelly was known,  in Boston lingo,  as "a worka". 

Bulger had his fingers in everything, including Jai Alai in South Florida. On orders from Bulger, Connelly and Steve "The Rifleman" Flemmi killed CPA John Callahan and Jai Alia owner Roger Wheeler. ("The Rifleman": Is that the best nickname for a hired killer or what?)

If you want to read the definitive book on Whitey Bulger, read "Whitey Bulger" By Boston Herald reporters Kevin Cullen and Shelley Murphy. 

In 2005 Connelly was tried in Miami and convicted. And that's when the problems started.  Connelly was convicted for second degree murder and the statute of limitations may have run on that charge.  Judge Stan Blake denied the motion for discharge post verdict, but then PD Appellate lawyer extraordinaire  Manny Alvarez joined the fight, never a good sign for a faltering prosecution. 

The 3rd DCA found the case so troubling that  Manny Alvarez had to file a writ of mandamus with the Florida Supreme Court to get them to issue a ruling.  The supreme court did just that, ordering the 3rd to issue an opinion. In May 2014, the 3rd ruled 2-1 in favor of Connelly.   Shepherd and Suarez for the majority (24 page decision). Rothenberg, dissenting (47 page dissent). 

We grant Connolly’s motion for rehearing, vacate the conviction and sentence in Case Number 01-8287D, and remand with instructions to discharge him because the trial
court impermissibly relied on an uncharged firearm to enhance the only crime for which he was convicted. Without the fundamentally erroneous reclassification, Connolly’s conviction for second-degree murder as a lesser included offense of

first-degree murder was barred by the applicable statute of limitation.

Reflect on that bit of spectacular lawyering for a moment. Alvarez, has, to use specialized legal vernacular, kicked some ass in this case. 

The state moved for an en banc hearing, and that rare procedure will take place this Thursday. All the seats at the 3rd are sold out, but you can watch it on the internet. 

Here's where it gets fun. Alvarez filed a writ of habeas corpus which is now in the Florida Supreme Court.  Alvarez wants his client out on bond, since the 3rd's original opinion didn't just reverse the conviction, but they ordered Connelly discharged. 

Last week the Florida Supreme Court issued an order requiring the prosecution AND THE 3RD DCA to file a response to the writ. 
Take a moment. Reflect on that. Yes, you read it correctly. The Florida Supreme Court has required the 3rd DCA to file a response to the PDs petition for a writ of Habeas Corpus. 

Petitioner has filed a petition for writ of habeas corpus. Respondent is requested to serve a response to the above-referenced petition. Further, because this Court has determined that it would be helpful to the resolution of this case to have the benefit of a response from the lower tribunal, the Third District Court of Appeal is requested to file a response as well. See Fla. R. App. P. 9.100(e)(3).

So who writes the brief for the 3rd DCA? If we were assigning it, we'd have Emas do it. He's the brightest of the bunch. 

Great job by Manny Alvarez. Is someone nominating him for the FACDL's Rodney Thaxton Against All Odds Award? 

See you in court.