3rd DCA ROUNDUP

It's that time of the week again but lets not get "hypertechnical" (this will become relevant in a bit.)

Hayes v. State stands for some well known propositions: you cannot be convicted for trafficking cocaine by possession and possession of cocaine with intent to sell. You can however be sentenced as an habitual offender for trafficking. Ouch. We guess there are never enough minimum mandatories to satisfy the prosecution and legislature.

Has anybody ever really sat down and upon reflection realized that Florida's sentencing scheme resembles a blind person's attempt to put together a puzzle in the middle of a windstorm? It's a mishmash of legislative pandering to the "get tough on crime" crowd without any recognition that sentences and minimum mandatory sentences overlap and make little if no sense. Far be it from the legislature to trust a judge to evaluate a defendant's prior record and give an appropriate sentence. Nope- better to have someone a few years out of law school in charge of that.

State v. Moreno-Gonzalez: Oh, this is a beauty. The police ask for a search warrant. The police prepare an affidavit for the warrant. The police DO NOT sign the affidavit. Held: "What's wrong with that?" Kudos to Judge Cope for his dissent in writing that "Florida follows a rule of strict construction of the statutory and constitutional provisions governing the issuance of search warrants, so the failure to sign is fatal to the warrant. "

But how does the majority dismiss Judge Cope? They call him "hypertechnical"

Yet, our dissenting colleague would do precisely what the United

States Supreme Court dictated should not be done, that is, invalidate the warrant by

interpreting the affidavit in a “hypertechnical” manner...

We suggest a little experiment for Judges Cortinas and Lagoa: try taking your paycheck to the bank when it is not signed and see what they do with it. Then let us know if a signature requirement is "hypertechnical". Or, maybe we'll just file sworn motions to dismiss that are not signed and argue that the court should consider the merits because a signature is a"hypertechnical" requirement.

How about those "failure to sign a citation" crimes? Are those just hypertechnical as well?

So now warrants don't have to be signed in Florida. Next they won't need them at all, because really, if the police have probable cause, isn't the whole warrant mishagosh just "hypertechnical" mumbo-jumbo?

But just to show you that the 3rd DCA is not a hard-hearted institution; that it's not all "hypertechnical" mumbo-jumbo, take a look at the decision in Benjamin v. State:

Facts: The trial court sentenced the defendant as violent career criminal based on a battery of police officer prior qualifying offense.

Problem: battery on a police officer is not a qualifying offense for the VCC act.

See De La Portilla v. State, 2 So.3d 1125 (Fla. 3rd DCA 2009).

Issue at hand: The defendant filed a motion with the trial court- denied. The defendant filed a second motion- which was denied as procedurally barred as a successive motion.

The Defendant appealed- the 3rd originally denied the appeal because the motion was procedurally barred because it was a successive motion.

Appellate counsel filed a motion for re-hearing...and someone finally took the time to read the file and the defendant's original complaint. You see, there's a real danger in turning clerks loose to write opinions in which the holding is "denied as procedurally barred.". Do a few thousand of those and eventually someone ends up serving 30 years on an illegal sentence. "Woops, sorry pal. How can we make it up to you?"

Lets put this in clearer terms for you. It took this defendant at least two motions before the trial court, and one trip to the 3rd where he originally lost because the 3rd just piggybacked on the trial court's second denial that the claim was successive before someone really looked and said to themselves- "hey wait a sec- this guy's serving 30 years on an illegal sentence!". Kind of sad when you think about it.

Hall of Shame: Judge Thornton here; (we may just not come to his fundraiser unless he straightens up and flies right on this issue that bothers us so much);

And Judge Miller is in the Hall again here (and we can't imagine ever attending a fundraiser for a Judge who wants to be known as "maximum").