FACDL AND DE LA O SQUARE OFF OVER PVHS

 There are Judges who approach the REGJB pantheon of greatness. Judge Ed Cowart is the standard by which all REGJB judges are measured. In more recent times Judge Murphy was a favourite of both the state and defense for the way he ran his courtroom and his well reasoned and fair decisions. The same can be said for Judge Miguel De La O. He works hard at his job. Other judges have been known to commit felonious acts to get a copy of his well regarded case law email updates.  And now Judge De La O finds himself at the center of a standoff between the criminal defense bar, which does NOT want to proceed via ZOOM for probation violation hearings, and Judge De La O, who reads into the Supreme Court's Administrative Orders on proceeding electronically nothing- nada-zilch- zero- reasons preventing a PVH taking place via zoom. Although he didn't say it, defense attorneys want their cake (bond hearings via zoom) and to eat it as well (no PVHs via Zoom). Can't we all just get along? 

Apparently not.  If you should find yourself awake in the wee hours of any morning, unable to sleep, take a gander at the below litigation: The FACDL's motion, and Judge De La O's DENIED order. Because he is a good judge, De La O has rescheduled the hearing giving time for the defense and FACDL to take a writ to the Third.  No fear of appellate review is he.  As the old joke goes: "How do you get to the 3rd DCA? Lose a motion and take a writ." Ba dum dum. 

Here are the motion and order. The warning label states to not drive or operate large machinery after reading the motion and order. 

Zoom Hearing Objection Clarington w Facdl (1) by HR on Scribd

 

If you are still awake, here is the order.

Order Overruling Objection to Zoom Probation Violation Hearing (1) by HR on Scribd

PROBATION AND ZOOM

Probation means always having to say you're sorry. 

Some of the greatest injustices have occurred through probation violation hearings, especially when the defendant is later acquitted of the underlying charge. 

Defense attorneys are now rightfully concerned with having Judges adjudicated probation violation hearings via Zoom. With that in mind and with permission of the  FACDL Prime Minister of Defense we publish this:

As we navigate through the COVID-19 unknown, we have come across issues of first impression that we must now litigate.  One of those very issues comes in the form of Probation Violation Hearings.  One position is the Court may force these hearings to move forward via remote videoconferencing because it is not specifically excluded in the Supreme Court AOs much like jury and non-jury trials are.  FACDL-Miami member Rich Cooper’s client is being pushed by Judge Miranda, who is contemplating holding the PVH via Zoom, over the defense’s objection. 

 

That being said, we all know that an AO doesn’t obviate the Constitution.   It is the position of FACDL-Miami that, unless the defense consents (which might make sense in some cases) this is a violation of the constitutional right to counsel, right of the defendant to be physically present, and confrontation clause.  It also violates Florida Rule of Criminal Procedure 3.180.  We have filed a pleading on one case already, and FACDL statewide has also weighed in in opposition, but this is the sort of issue where one case could open the floodgates.  If you have an issue of a judge trying to set a Zoom PVH in one of your cases, and you oppose it, please reach out to Dan Tibbitt directly, at Dan@Tibbittlaw.com.

 

I want to thank several people for their quick and diligent work on this matter.  First, to Rich Cooper for having the foresight to recognize that his client’s situation has the potential to set bad precedent for the rest of us, and working with FACDL to file the objection.  Diana Johnson (Johnson and Lufrano, PA) and Jackie Perczek (Roy Black, PA) were incredibly instrumental in researching, drafting, and articulating our position and supporting arguments.  Past Presidents H. Scott Fingerhut and Jude Faccidomo have been fantastic in leading this charge.  And we couldn’t have done it without Dan Tibbitt, who when called, immediately accepted his “voluntold” position and took off running.  I should note, this was just 1 or 2 days after he volunteered to work on another Amicus brief.  This group drafted the finest (and longest) Motion for Continuance I have seen.  Thank you to Rich, Diana, Jackie, Scott, Jude, and Dan for all your hard work.

Best,

Matt