It's a win for Miami Judge Miguel De La O and a loss for FACDL and attorney Dan Tibbitt who did a great job, for free, and who usually wins his appeals. No shame in taking this loss on what was an uphill battle.
On the surface it seems like an easy appeal and an easy opinion.
But then Judge Emas, writing for the majority, wades into dangerous waters. He calls Due Process a flexible concept: "The concept of due process is not rigid or static, but flexible and dynamic."
Federalist Society members pick up your pitchforks. Calling a constitutional concept "flexible" is like calling the Constitution a living and breathing document- which are liberal code words for interpreting the Constitution based on the personal opinions of liberal judges, instead of what can discerned about the intentions of the dead farmers who wrote our Constitution.
What happened to just calling balls and strikes? What one judge bends due process concepts to reach a decision in one direction, another judge can bend in another direction. Judge Emas- Appellate Yogi.
As much as we respect Judge Emas, his concept of Due Process and his decision is dangerous. We do not wish to place the concept of Due Process into the hands of judicial sculptors who will mold Constitutional protections like a lump of wet clay on a potters wheel.
The rest of the opinion reads like a Covid Mea Culpa (no blogger turns an alliterative phrase like we do). We have a pandemic (despite Governor no Mask saying we don't). Probation Violation Hearings are not like trials. They are afforded less protections. The rules of criminal procedure allow for electronic appearances, and thus appearing electronically is just like appearing in court, which means, especially during a pandemic, the right to be present in court is satisfied when Judge De la O orders you to do a PVH on Zoom. We will not take Judge Emas to task for his recitation of PVH case law. The law is horrible. Judges can and do revoke probation and sentence defendants to life or near life sentences on the flimsiest of evidence, but this was not the case to fix that.
For those criminal practitioners who are waiting smugly for jury trials to resume and then intend to drop dozens of speedy trial demands, you are warned. The 3RD DCA has little tolerance for Constitutional rights in the time of a pandemic. When your judge tolls speedies because she is overwhelmed with trials and finds the tolling to be an exceptional circumstance, good luck with your writ to the 3rd. We will give your the result now: DENIED.
Speaking of Writs, Judge Gordo concurred in the result only, finding that a writ was not the appropriate remedy. She may be right. “A writ of prohibition is an appropriate, if extraordinary, remedy that lies when a lower court is without jurisdiction or is attempting to act in excess of its jurisdiction.” Durham v. Butler, 89 So. 3d 1023, 1025 (Fla. 3d DCA 2012).
This case does not seem to be addressable on a writ of prohibition. But Judge Gordo had bigger conservative fish to fry.
Her Federalist Society roots showing, having obviously meditated before a picture of Justice Scalia, Judge Gordo took a shot at the majority opinion. It's a concurrence sure to warm the hearts of conservative Governors looking for a Supreme Court Justice:
Thus, I decline to join the majority’s analysis, particularly to the extent that it negates a defendant’s constitutional rights by balancing them with the competing interests of the temporary pandemic. “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.” Ex Parte Milligan, 71 U.S. 2, 120–21 (1866)
No balancing of flexible Constitutional concepts for Judge Gordo. Just balls and strikes please. Due Process means what the framers said it means, and it doesn't mean anything more or less in a pandemic.