3rd DCA ROUNDUP - CIVIL PROCEDURE EDITION

For perhaps the first and last time, we discuss an issue of civil (yuck) procedure.

Murray v. State. For all you civil commitment mavens out there be warned: to preserve a sufficiency of evidence argument on appeal not only must you make a timely motion for a directed verdict, but to preserve the issue you must also make a post verdict motion for entry of a judgment in accordance with the motion for directed verdict. Fla. R. Civ. Proc. 1.480(b). (This is the first and last time you will see us cite to a rule of civil procedure.

Query: What should a defense attorney be allowed to argue in closing? Well for starters, anything the jury is instructed on. Duh!.

Serge Jean v. State. Judge Areces catches a reversal for limiting the closing argument of the defense attorney. If an instruction is given to the jury, counsel must be given an opportunity to address the jury on the matter. In this case in which the client was charged with escape, the defense attempted to argue the issue of lawful custody during closing argument. The court sustained an objection when the defense began to challenge whether or not the defendant was in lawful custody. However, the issue of lawful custody was explained to the jury in instructions. Counsel should be permitted to present all legitimate arguments. In so doing, the trial court must afford counsel wide latitude in presenting the closing argument. However, a trial court abuses its discretion when it fails to afford such latitude to defense counsel and, as a result, counsel is precluded from presenting his or her theory of the case to the jury.

3rd DCA ROUNDUP

If it's Thursday, (or sometime thereafter) it must be time for our weekly and weakly review of the opinions issued by that monument to justice in Kendall- the 3rd DCA.

Speaking of Justice, we start with a rousing affirmation of a drug trafficking conviction of two Defendants in Lelieve v. State, which stands for the proposition that for  3 judges appointed by Jeb Bush, there is little the state can do wrong at trial, including violating a pre-trial motion in limine, and allowing the prosecution to argue at closing evidence that was not introduced at trial. What's a little problem like arguing for guilt based on evidence that does not exist among republican judges? Not much here.  Throw in the 3rd DCAs view that the trial court properly denied  a motion to continue to allow the defense to subpoena witnesses that just re-entered the jurisdiction,  and you have all the makings of justice 3rd DCA style. 

Here's the problem with that last little issue: if the defendant had pled guilty, the court would have conducted a solemn plea colloquy assuring the defendant that in this wonderful country of ours, which has the greatest legal system known,  if the defendant wanted to subpoena witnesses the attorney for the defendant could do so, and use the power of the court to enforce those subpoenas. 

So as we see it, you can plead guilty and be assured you can subpoena witnesses, but if you go to trial and really want to do it, no dice. Hmm...

What is it about rule 3.850 motions that makes judges go nuts and forget all the case law they are given at those barren and arduous judicial retreats? 

 While not joining our wall of shame, Judge John Schlessinger gets honorable mention in Cury v. State for denying a rule  3  BEFORE the case was decided on appeal. Come on Judge, even PD interns know that the appeal must be final before the rule 3 can be filed. The appeals court straightened Judge S out, and ruled the denial was a denial without prejudice. Good luck Mr. Cury on bringing that rule 3 back before Judge Schlesinger a second time. 

Ah, but Judge Venzer does join our HALL OF SHAME for denying a rule 3 without a hearing and without attaching the portion of the record conclusively proving the defendant is not entitled to relief.  See Wiggins v. State. 

So what have we learned today?  "A rule 3 before appeal will not prevail"; (will one of our robed readers please cut and past that little ditty and email it to Judge Schlessinger in Civil court. Actually if about 10 of you do it, it will really be fun.) 

If you want to subpoena a witness for trial, you can, if you plead guilty. If you really want a trial, then try bringing the argument up somewhere other than that court right next to the FIU campus. 

UPDATE (non legal or REGB related)

The year was 1976, and this tall and gangly rookie pitcher for the Detroit Tigers burst on to the Major League Baseball scene with a complete game 2-1 win. He stalked the mound, talked to the ball, bent down and smoothed the pitcher's mound with his hand, and captured fans around the nation with his genuine love for the game and fun antics. He was Mark "The Bird" Fidrych and he died yesterday at age 54 in an accident. 

The ESPN story is here. 

This was a time and an era when superstar baseball players did not come with their own management and team of trainers. This was a time when a new star player in this most  American of   sports could and did capture  the entire attention of our country. 

Mark Fidrych was everything that was right and great about baseball. His death is a tragic loss for his family.