3D DCA PICKS ARE IN

We have two ways to announce your two new 3d DCA Judges. 

1) We can go this way:
OH MY LORD-O 
Your two new Judges are Lobree and Gordo

OR 

We can play off the upcoming NFL draft tonight and do this:

With the First Pick in the 2019 3d DCA judicial draft, the governor selects...
Fleur Lobree, (R) Dade State attorneys Office. 

With the second pick in the 2019 3d DCA judicial draft, the governor selects....

Monica Gordo, (R) Circuit court. 

Which is better? 

NOW THIS IS AN "ORDER TO SHOW CAUSE" WORTH READING .....

THE CAPTAIN REPORTS:

THIS GUY HAS COJONES .......

Attorney Bruce Jacobs has a lot of balls, and they may become Schweddy Balls, (SNL Season 24, Episode 9, December 12, 1998; starring Alec Baldwin long before he starred as Donald Trump), if the 3^rd DCA has anything to say about it.

Jacobs has been an attorney for 21 years, beginning his career as a Miami Dade prosecutor in 1997. He now heads a foreclosure defense firm here in Miami and as he boldly says on his web page, "he has dedicated his practice to helping David fight Goliath." If you tune into 880-AM on your radio dial on Wednesday evenings from 5-6 PM you can catch his radio show called "Debt Warriors".

Jacobs has a reputation for not backing down to anybody, and that includes the judges on the Third District Court of Appeal.

Last week, the 3^rd DCA issued an opinion in the case of Aquasol Condominium v HSBC Bank, 3D17-352. Jacobs represents the Appellant Aquasol. You can read the full opinion by going here:

The Opinion by the 3^rd was actually an ORDER TO SHOW CAUSE ordering attorney Jacobs to show cause why the court should not impose sanctions for filing a motion and briefs that violate the Florida Rules of Appellate Procedure and Rules Regulating the Florida Bar.

I won’t go into the background of the case as this is a criminal blog, but the language the opinion cited that is attributed to Mr. Jacobs is definitely worth the read.

In Jacobs Motion For Rehearing and Rehearing en Banc, Jacobs says:

"Most disturbing, the opinion sends the wolves after Aquasol’s counsel personally by commending the trial court’s ‘patience’ for not holding him in contempt of court. Truthfully, no court should dare make the front page of the paper for jailing an attorney for asking about a false document in evidence. This Court’s opinion intentionally emboldens judges to abuse their contempt powers."

"This Court’s insistence on ignoring established Florida Supreme Court law to benefit bad corporate citizens is certain to cause chaos."

"Fla. Stat. § 673.3011 controls enforcement of negotiable instruments, not mortgages. Ownership controls the right to enforce the mortgage. This Court is acting illegally by instructing the law is otherwise."

Jacobs eventually reaches the CONCLUSION portion of his Motion, which the 3^rd describes as "a desultory diatribe", where Jacobs says, among other things:

"I have faith that this David v. Goliath battle will end justly. I deeply reject that I should be held in contempt for standing up for homeowners against a corrupt foreclosure system. This is not Russia or North Korea."

"My ancestors on my mother’s side trace back to the tribe of Kohanim, the priests of the temple in Jerusalem. My father’s ancestors trace back to the tribe of Levi, who assisted the priests of the temple in Jerusalem. My ancestors were the first refugees. They have stood up to injustice and abuse throughout history."

Moving on from Jacobs "painful childhood, his wife and children, the nature of his law practice, and how he became a "student of the [foreclosure] crisis", Jacobs goes on to say in his Motion:

"I refuse to accept the idea that you cannot win when you are right. This is a biblical, spiritual journey for me. I have faith I will be protected because I am acting so clearly within the law and this Honorable Court is not."

"..... This foreclosure crisis was such an interesting phenomenon. Courts kept covering up for Banks that were intentionally doing it wrong."

"Banks have all the resources to do it right but made business decisions to do it fraudulently. It’s as if they knew the Courts would always let them get away with it. Some out of fear as elected officials. Some out of indifference. Some out of belief that banks and bad corporate citizens got them to their position and they are on that team. The banks should always win. I call those judges traitors to the constitution."

" ..... The judges decide the rule of law, and whether any rule of law exists. Maybe the rule of law only applies to the rest of us."

"This Court is sworn to protect and defend the constitution of the United States of America, not the foreclosure fraud of Bank of America or HSBC."

"Why would anyone sworn to protect and defend the constitution stay silent while domestic enemies destroy our democracy from within? Is this really the world Americans should live in where those in power do not do what is right?"

Jacobs closes with these two doozies:

"I’m fighting the modern-day monopoly. I am calling all the patriots who swore the oath to protect and defend the Constitution to join me. Any court that protects the monopoly over the rule of law is a traitor to the constitution and should be tried for treason."

"This Court should not ignore Florida Supreme Court precedent and the actual facts of the dispute to reach a pre-determined result of blow the dogwhistle for judges to attack Aquasol’s counsel with contempt and jail for doing his job."  (All emphasis is that of the Court’s).

Jacobs response to the Order to Show Cause is due by tomorrow.

Give Jacobs credit for standing up for the little guy and for fighting the good fight for something he believes in so strongly. Sounds like what many of our criminal defense attorneys in the Public Defender’s Office, Regional Counsel, and the private bar are doing on a daily basis. But maybe they are arguing their positions just a wee bit differently.

Have a great weekend.

CAPTAIN OUT .......
Captain4Justice@gmail.com

GOVERNOR SCOTT NAMES NEWEST 3RD DCA JUDGE .....

THE CAPTAIN REPORTS:

BREAKING NEWS .......

YOUR NEWEST 3rd DCA Judge is:

JUDGE NORMA LINDSEY

Judge Lindsey fills the vacancy created by the resignation of Judge Linda Wells.  Judge Lindsey began her career in private practice in 1993 with the law firm of Hornsby, Sacher.  She worked for a number of law firms from 1993 through 2005.  In 2005 she became a County Court Judge.  She served on the County Court for six years until Governor Scott appointed her to the Circuit Court in December of 2011.  She has served on the Circuit Court for the past five and one half years, having replaced Judge Ivan Fernandez.  She now joins Fernandez on the 3rd DCA.  Lindsey was chosen over five other finalists:

Judge Monica Gordo, Judge Bronwyn C. Miller, Oren Rosenthal, Esq., Judge Daryl E. Trawick, Judge Angelica Zayas

This appointment now opens up another seat on the Circuit Court in Miami-Dade County for Governor Scott.

ON THE GOVERNOR'S DESK .......

Governor Scott has two open seats to fill, one in the Circuit Court, and one in the County Court, with six named finalists for each on his desk.  The decision on these two seats is not expected until sometime in mid July:

CIRCUIT COURT (as mentioned in the post below):
This appointment replaces Judge Robert Luck.

Judge Andrea Ricker Wolfson
Judge Lourdes Simon
Judge Spencer Multack
Judge Ivonne Cuesta
Judge Tanya Brinkley
Ayana Harris

COUNTY COURT:
This appointment replaces Judge Victoria del Pino.

Ramiro Areces
GM Karl S.H. Brown
Julie Harris Nelson
Elijah Levitt
Joseph Mansfield
GM Gordon Murray, Sr.

ON THE JNC'S DESK .....

The Eleventh Circuit JNC has received applications from 25 attorneys to replace Judge Jason Dimitris.  The interview schedule and who will be interviewed has not yet been determined.

CAPTAIN OUT .....
Captain4Justice@gmail.com

YOUR TIME IS UP

Query: 
Having argued at appellate courts at all levels, why doesn't the Third District Court of Appeals have an electronic timer like other courts? 

Battle of the Coral Sea- 75 years ago this week. 
Last week the Australian Prime Minister visited the United States and met with POTUS 45. There were many comments about the 75th anniversary of the battle of the Coral Sea which occurred this week. The battle concluded on May 8 with the sinking of the US Carrier Lexington. 

The Battle of the Coral Sea was many things. It was the first major naval engagement of carriers. The first major naval engagement where opposing navies didn't actually see each other during the engagement. Coral Sea was fought strictly with carriers launching naval aviators and attack planes. The Battle of the Coral Sea was also the first major naval engagement between the United States and Japan, coming five months after the disaster at Pearl Harbor. 

The Battle of Coral Sea was many things, but it was NOT the turning point of the Pacific campaign in WWII, although many commentators have recently and mistakenly taken to calling it that.

The turning point in the war would come a month later on June 4 at the Battle of Midway, upon which we will expertly expound more at that time. 

The Battle of Coral Sea was for both sides- at best- a draw. The US struck first, sinking the Japanese light carrier Shoho. The next day the Japanese located and 
sunk the older and slow US carrier Lexington. The US then severely damaged the Japanese carrier Shokaku and in return the Japanese damaged the carrier Yorktown. Both sides then retreated, although the Japanese invasion of Port Moresby, which would have threatened Australia, was defeated. 

The long term strategic effects of the battle favored the United States.  Fleet Admiral Yamamoto was spoiling for a large scale naval battle so as to sink the remaining US carriers which escaped damage at Pearl Harbor.   To that end, Yamamoto created an invasion fleet for the US island Midway hoping to draw out what he believed would be the remaining two US carriers- Enterprise and Hornet. But the Yorktown limped back to Pearl and was turned around in three days (with damages that were thought to require a month of repairs). The Yorktown made a surprise and significant appearance at the Battle Of Midway and contributed to the resounding defeat of the Japanese Navy and loss of four carriers. 

Midway was the turning point in the Pacific War and to a small extent the outcome of the battle of the Coral Sea contributed to that outcome by disguising the presence of the Yorktown and also giving the US naval aviators and Navy the confidence that they could defeat a much more experienced and larger Japanese Navy. 

The battle of Midway was when time ran out on the Imperial Japanese Navy, and when their time ran out- like the litigators at the 3rd DCA- they didn't know it either. 

From Occupied America, Fight the Power!

JUDICIAL APPOINTMENTS: 3RD DCA & CIRCUIT COURT

THE CAPTAIN REPORTS:

SO, YOU WANT TO BE A JUDGE .....

ON THE CIRCUIT COURT:

There were a total of 15 applicants to replace Judge Victoria Brennan on the Circuit Court.  Of those, 11 are scheduled for interviews on February 14, 2017.  They are:

9:30 a.m. Raul A. Cuervo
9:50 a.m. Jason Dimitris
10:10 a.m. Spencer J. Multack
11:10 a.m. Milena Abreu
11:30 a.m. Andrea Ricker Wolfson
11:50 a.m. Lourdes Simon
12:10 p.m. Norman Christopher Powell
1:30 p.m. Luis Perez-Medina
1:50 p.m. Joseph J. Mansfield
2:10 p.m. Ariel Rodriguez
2:30 p.m. Ayana Harris

Ramiro Christen Areces, Marilyn Blumberg, Carlos Alberto Lopez, Jr., and Michele A. Vargas were all bypassed for personal interviews.

ON THE 3rd DCA:

Governor Scott will be naming Judge Frank Shepherd's replacement, likely by next Friday, February 10, 2017.  The six finalists include:

John A. Greco
Judge Norma S. Lindsey
Fleur J. Lobree
Judge Robert J. Luck
Judge Bronwyn C. Miller
Oren Rosenthal

SCOTUS:

And then there was the perfectly scripted roll out of Trump's SCOTUS nominee to replace Justice Scalia, all done in prime-time on National TV.  DOM covers it here: and Bloomberg covers the story on how the White House kept it all a secret 


CAPTAIN OUT .....
Captain4Justice@gmail.com

SO, YOU WANT TO BE A JUDGE - Florida Supreme Court - 3rd DCA - Circuit Court .....

THE CAPTAIN REPORTS:

SO, YOU WANT TO BE A FLORIDA SUPREME COURT JUSTICE .....?

As a result of the retirement of Justice James Perry, who has announced his retirement effective December 30, 2016, the Florida Supreme Court’s JNC interviewed 11 candidates and nominated three to Governor Rick Scott. The judge must reside within the jurisdiction of the 5^th DCA.

The three finalists are:

Wendy Berger, a 5th District Court of Appeal judge

C. Alan Lawson, chief judge of the 5th District Court of Appeal in Daytona Beach

Daniel J. Gerber, of the Orlando office of the law firm Rumberger, Kirk and Caldwell

All three candidates were heavily promoted by The Federalist Society. Promises from many of those interviewed went something like this: 'I promise to maintain my conservative principles; to not legislate from the bench; to bring to the bench a core set of conservative principles; I admire Justice Canady for his judicial philosophy and for his frequent dissenting opinions; I am an originalist', etc etc etc. All of the finalists were praised by Federalist Society's Florida Co-chair Jason Gonzalez as being "imminently qualified and hav[ing] demonstrated a textualist judicial philosophy similar to that of the late Justice Antonin Scalia".

SO, YOU WANT TO BE A 3^RD DCA JUDGE ..... ?

Also in the news, with the retirement of Judge Frank Shepherd from the 3^rd DCA, the JNC accepted applications from four sitting judges and seven lawyers who have applied for the open spot on Florida's Third District Court of Appeal.

Those that have applied include:

Miami-Dade Circuit Judges Norma Lindsey, Robert Luck and Bronwyn Miller and Broward Circuit Judge Carlos Rodriguez.

The other applicants are:

• Assistant U.S. attorney Jonathan Colan
• Michael Dono, Hamilton, Miller & Birthisel, Miami
• Miami Deputy City Attorney John Greco
• Susan Scrivani Lerner, public defender, Miami
• Former Miami-Dade County & Circuit Court Judge Fleur Lobree, now with the Miami-Dade State Attorney's Office
• William McCaughan, K&L Gates, Miami
• Assistant Miami-Dade County attorney Oren Rosenthal


The Governor also will be naming a new Miami-Dade Circuit Judge before the end of December to replace Judge Stan Blake.  Finalists include: Jason E. Dimitris; Ayana N. Harris; Spencer Jet Multack; Victoria del Pino; Lourdes Simon; and Andrea Ricker Wolfson.

CAPTAIN OUT .....
Captain4Justice@gmail.com

GET OUT THE PEN AND WRITE

The Third DCA released sixteen decisions in criminal cases on Wednesday. Fourteen were PCA Affirmed. Of the two decisions, one was in a pro se post conviction case affirming a denial without prejudice for the petitioner to properly file the motion, and the second was in a first degree murder case where one of the two burglary convictions were vacated, but the murder conviction affirmed.

Query: Shouldn't criminal defendants be entitled to a short opinion? There seems to be a PCA epidemic lately.

NB: PCAs (Per Curiam Affirmed, literally "Feh! Are you kidding me? Affirmed." ) are for all intents and purposes impossible to appeal further.

Check out DOM's blog, where he reports on the 11th circuit and Judge Rosenbaum writing dissents about the moon and green cheese. At least they're getting opinions in federal court.

See you in court.

RED LIGHT CAMERAS - THIRD DCA SPEAKS .....

THE CAPTAIN REPORTS:

RED LIGHT, GREEN LIGHT ..... IT'S A GREEN LIGHT FOR THE COUNTY IF YOU RESIDE IN MIAMI-DADE, FOR RED LIGHT TICKETS .....

So, for now, if you see this:

 

Then, you can expect to see this:

 

That's because, today, the Third District Court of Appeal, finally issued their long awaited opinion ruling on Judge Leifman's Order that dismissed a red light citation.  The case was heard before Judges Wells, Emas, and Logue, with Logue writing the opinion, that can be found here. (go to page 29 of the 36 page opinion to read the three certified questions).

In their opinion ruling against the driver and for the City of Aventura they "distinguish City of Hollywood v. Arem, 154 So. 3d 359 (Fla. 4th DCA 2014), in which the Fourth District dismissed a traffic citation on the grounds that a city’s process of using red light cameras gave unfettered discretion to a vendor."

But, "because of the broad public and institutional interest in red light cameras", they certified three issues to the Florida Supreme Court as having great public importance.  Judge Wells did not agree that the matter was of great public importance but she did agree to certify the case as being in conflict with the 4th DCA.

h/t DBR and they cover the story here.

CAPTAIN OUT .....
Captain4Justice@gmail.com

PER CURIAM

"Traditionally it may be pointed out that a ‘per curiam’ is the opinion of the court in which the judges are all of one mind and the question involved is so clear that it is not considered necessary to elaborate it by an extended discussion."

Newmons v. Lake Worth Drainage Dist., for Use & Benefit of Martin, 87 So. 2d 49, 50 (Fla. 1956).

In Vega v. State, which was a sexual predator  incarceration hearing in which the defendant's sentence had expired but the State still sought to keep the defendant in custody, there was a trial in which the jury's verdict was that the defendant should not be held in custody for any further period. 

The judge promptly ignored the verdict and ordered the defendant into custody. 

The defendant appealed. 

Seems pretty serious. A case of first impression for sure. Ripe for a well reasoned opinion setting precedent for the State. The type of case appellate judges presumably fight each other for the right to write the opinion. 

And the 3rd DCA in Vega v. State did this: "Per curiam, affirmed." 

here. 

For those non-lawyers who read the blog, "per curiam" does not mean "we punt", or "scaredy cat", or anything other than what is stated above. 

So here is what we have- a decision of a trial court incarcerating a defendant who has served his sentence and against the verdict of the jury. 

We have the Fifth Amendment to the Constitution of the United States which says, inter alia, that no person shall be deprived of life or liberty without due process of law. 

And we have the 3rd DCA which says "per curiam, affirmed."

Puzzling. Truly puzzling. 

See You In Court. 

...WITH A LITTLE HELP FROM MY FRIENDS

This will be a short post, as pending trials and brief deadlines are all breaking with alarming frequency. 

ORAL ARGUMENT:
We've been pondering the 3rd DCA's recent announcement that they will not be liberally granting oral argument. And here's what we've concluded: it's a dangerous trend because it undermines the public's confidence in the judiciary. 
When you attend and participate in oral argument, even when it goes poorly, litigants see that the panel has read the briefs and is well versed in the facts of the case. Now an increasing number of litigants will just receive a decision in the (e)mail which will invariably lead to grumbling that the court didn't really read the briefs and relied upon clerks in reaching their decision. Appellate courts are dependent in part upon the respect the public has for the institution. Less oral arguments will lead to more criticism, which will lead to less respect. The 3rd DCA is walking down a road full of potholes. In our opinion, they would be well advised to reconsider. Not because we believe the dedicated judges will not fulfill their responsibility, but because we are one lone voice in a wilderness that can become very cold and wild quickly. Just a thought. 

ORAL FIXATIONS:
Last week came the news via a DBR article that REGJB semi-regular Jeff Feiler is hatching a scheme to sell medical marijuana franchises. Hmm....having a residence in Colorado does not an expert in medical marijuana make. Nor does having a grill and chop-meat at home qualify a person to compete with McDonalds. IF medical marijuana is approved in Florida, and IF Florida travels down the path to legalizing marijuana, then the field MAY become lucrative. And if it does, then first in does not equate to the inside path to economic success. Just ask AOL and CompuServe and see where their profits  rank vis a vis Google for instance. 

Medical Marijuana outlets are a BIG gamble. We don't see the upside as large enough to erase the risk of losing your entire investment. The bankruptcy courts are full of lawyers who thought they could compete in other businesses.  Doctors don't know beans about running restaurants. Pilots don't know how to drill for oil. Google doesn't run a hedge fund. 

Stick to what you know, otherwise the "highs" won't ever outweigh the lows. 

See You In Court, doing what we know, and doing it very very well. 

HAVE YOUR SAY

Have your say at the 3rd DCA; maybe yea, maybe nay:
Appellate Maven Roy Wasson sent out this FACDL wide email:

 Chief Judge Shepherd at  meeting this morning clarified the
way the new policy limiting oral arguments will be handled.  When the request for OA comes in, the clerk will continue to set all cases for argument.  About 30 days before the scheduled argument date, the panel will
review the briefs to determine if argument will be useful.  The attorneys handling cases that are not selected for argument will then receive a notice of cancellation of argument.  The cases will still be listed on the online calendar on the date the argument was originally scheduled, with a notation
"Argument Cancelled By Court."  That will enable counsel to see who is on the panel starting the week before the original OA date.

New Oral Argument policy: What say you? Yea or Nay? 

CAMPAIGN FUN:

 Wannabe Captain said...

Captain is not doing his job, so I will.

JUDICIAL CAMPAIGN REPORTS
As the judicial season begins, this is the way things stand today:

COUNTY COURT
Only 1 contested race (so far):

$ amounts are totals of candidate loans and contributions

Rachel Glorioso Dooley $12,390.00
Jacqueline Schwartz $231,031.00

CIRCUIT COURT
$ amounts shown are contributions/candidate loans

Group 16
Cobitz, Thomas Aquinas 2,725.00/10,000.00
Diaz de la Portilla, Renier 0.00/0.00
Millan, Stephen T. 1,500.00/0.00

Group 27
Gomez, Mary C. 5,690.00/0.00
Milian, Alberto 35,488.00/100,000.00
Perkins, Joseph David No Report

Group 58
Rodriguez-Fonts, Oscar 34,169.00/0.00
Ruiz, Mavel 6,687.00/0.00
Zilber, Martin 80,400.00/100,000.00

Fun Fact: Did you know judicial candidates use campaign funds to get their hair and makeup done? Jackie Schwartz spent over $150 of campaign funds getting dolled up for a fundraiser on 11/15. Funny story though, her fundraiser wasn't until Nov 21st. Ha ha ha. That Jackie. She's hilarious...

THE CAPTAIN REPORTS:

THIRD DISTRICT COURT OF APPEAL ......

And your newest Judge on the 3rd DCA is EDWIN A. SCALES.

This was not the first time that Scales was a finalist for an open seat on the 3rd.  Scales is 47 years old and he has been a member of The Florida Bar since 1991.  He has a practice that concentrates on commercial and appellate litigation with an office in Key West, Florida and he has also been Of Counsel to Gray Robinson for the past ten years. 

He is also General Counsel for the Florida Citrus Commission, Vice-Chair of the Florida Keys Community College Board, and Vice Chair of the Florida Commission on Ethics.

He has been a member of the Florida Bar Board of Governors since 2005, and he also serves on the Communication, Legislation, Media & Communications Law, and Program Evaluation Committees.

Scales is also a Florida Supreme Court certified Mediator.

Scales served from 2000-2005 on the Federal JNC, and in 2009, he was appointed by Gov. Crist to the JNC for the 16th Judicial Circuit.  He was reappointed by Gov. Scott and continues to serve on that Commission.  He also served from 2001-2005 on the Key West City Commission.

Scales is a "Double-Gator" having attended both undergrad and law school at the University of Florida.  Governor Bob Martinez appointed Scales, at the age of 21, as the Student Representative to the State Board of Regents.  He also served as Student Body President at UF.

Scales was chosen from a list of six finalists that included Judge Jorge Cueto, John Greco, Judge Fleur Lobree, Judge Jose Rodriguez, and Eduardo Sanchez.

Congratulations and good luck to Judges Scales.

CAPTAIN OUT .....
captain4justice@gmail.com

3RD DCA PCA'S TAKE TWO. (HEAT LOSE...HEAT GET BEAT.)

An excellent analysis of the recent spate of 3rd DCA PCAs caused us to re-think our prior criticism of the FIU/Kendall-Courthouse ensconced judges: 

 Anonymous said... While PCA opinions are short, if you actually read them you will learn the following: of the 29 criminal PCAs, six of them are Anders briefs (if you don't know what an Anders brief is, you should stop reading this blog and start reading the South Florida Lawyers blog); 17 of the criminal PCAs are denials of post conviction relief, 15 of which are pro se. Of the six remaining PCAs, 2 are plenary appeals from adult felony court and four are from juvenile court. Friday, May 24, 2013 3:13:00 PM 


Leaping to the defense of his former colleagues was the former CJ of the 3rd DCA:

 Juan Ramirez, Jr. said... If you think the Third District writes PCAs for such a questionable reason as to avoid Supreme Court review, you should check out Marshall v. State, 45 So. 3d 470 (Fla. 3d DCA 2010), in which the en banc court divided 6 to 4, with a concurrence and a dissent, in a developing area of the law (Crawford v. Washington). Of course, I would never suggest my former colleagues would resort to such a questionable practice. I am sure the panel had good reasons for not writing. Friday, May 24, 2013 8:17:00 AM 

 For those of you that do not know, Judge Ramirez left the bench for a much more honourable profession: blogger. His blog is here.

IF YOU CAN'T STAND THE HEAT....GO WATCH EM GET BEAT:
The Heat got beat, which makes our weekend complete. 
We watched  the Heat get Beat Friday night from a very nice box, far removed from the white shirted hoi-polloi -many of whom read this blog and have loved their precious Heat with every ounce of their being ever since the geographically challenged Lebron spit on Cleveland and decided to take his "talents" to South Beach (we just chuckle every time we imagine that carpetbagging phony finding out that the Arena was not on SOBE). 

The Heat's home court advantage disappeared as LBJ's two late turnovers (choke..choke) sealed his spoiled team's fate. 

And all you Heat fans, who are so devoted to this team (so you tell us repeatedly), can you explain to us why everyone was bolting for the exits with about 3 seconds left and your team only down by three? It's not because Miami Heat fans are bandwagon jumping front running phonies is it? 

With a hat-tip to @davidovalle305 who is enjoying the long weekend (and his non-paid furlough from the Herald) in Jamaica, here is an excellent description from an eyewitness to a shooting:

A long holiday weekend marks "di" start of summer. Have fun and "me" see you Tuesday, ready for trial. 

PER CURIAM, AFFIRMED

FREE ALEX MICHAELS UPDATE:
The 3rd DCA was a bit busier yesterday than we realized. This is their latest order:
That portion of this Court's order dated May 17, 2013, which grants the petition for habeas corpus, is vacated as improvidently entered. However, the stay shall remain in force and effect pending further order of this Court. The cause is remanded to the trial court for a determination whether to require the posting of a supersedeas bond. This Court retains jurisdiction over the matter which is treated as a petition for writ of habeas corpus. The petitioner is hereby ordered to file all relevant transcripts, including the evidentiary hearing and the violation of probation hearing within ten (10) days of the date of this order. The petitioner is hereby ordered to file an amended petition setting forth any and all legal arguments going to the challenge of the conviction and sentence within five (5) days of the date of the filing the ordered transcripts. The State of Florida is ordered to file a response to the amended petition within ten (10) days thereafter. Further, a reply may be filed five (5) days thereafter. No extensions of time will be granted. This cause is hereby set for oral argument on TUESDAY, JULY 2, 2013, at 10:30 o'clock A.M. with ten (10) minutes allowed each side for presentation of oral argument. WELLS, C.J. and SHEPHERD and LAGOA, JJ., concur.


Currently the courtroom for the oral argument is sold out. However, we might be able to get our hands on two, lower level, on the aisle. $350/a seat. Send us an email if you're interested.



So we're a couple of months into the Judge Soto administration as chief judge of the 11th Judicial Circuit. Anybody notice any changes?

3rd DCA PCA PARTY!
A brief check of the 3rd DCA opinions issued today shows twenty eight (28!!!) PCA's of criminal cases. There was one written opinion in which the conviction was affirmed in all respects except a remand to correct a sentencing error as "to a nonexistent statutory section."  That's how bad it's gotten folks: even nonexistent criminal convictions are getting affirmed. 
Twenty eight PCAs. None of these defendants were entitled to even the slightest of opinions? A few words here; an apodictic there?  Appellate lawyers know that the practical effect of a PCA is that there can be no appeal to the Florida Supreme Court. So what's going on here? Nobody is filing meritorious appeals worthy of even brief discussion, or....are our 3rd DCA judges making some tactical decisions about their legal decision? 

We heard you:
Over the last few weekends readers complained about the anonymous posts by various (?) individuals bragging about their sexual exploits. The general tenor of the comments were that that attorneys, usually older men, were having liaisons and assignations  with employees, or interns or attorneys, usually younger women. We heard your complaints and will no longer post such comments absent exceptional circumstances. Thanks for reading. 

See You In Court. 

3RD DCA LUNCHEON

Third District Court of Appeal

Historical Society, Inc.

cordially invites you to attend its

Biennial Luncheon With The Judges

A “Members Only” Event with the Judges of

The Third District Court of Appeal

Featuring “Reflections on Serving as Chief Judge”

by The Honorable Juan Ramirez

May 13, 2011 at 12:00 noon

Hyatt Regency Coral Gables at The Alhambra,

50 Alhambra Plaza

There will be no on-site registration. Registration Closes May 4. (Rumpole notes: If you are late you may be asked to explain yourself in lieu of sanctions!)

Please access the Historical Society’s Membership Enrollment Form here

Please access the Historical Society’s Luncheon Registration Form here.

Rumpole notes: Always happy to help our friends at the 3rd DCA.

3RD DCA FINALISTS

As blog posters have repeatedly mentioned, your three finalists for the 3rd DCA are Judge Kevin Emas, Judge Ivan Fernandez and Ed Scales.

Thoughts and comments?

Mr Markus and Rumpole both won their picks yesterday bringing their season totals to 5-3-1 for the Fed and 7-2 for Rumpole. Otherwise it was a down day for us, as we went 1-2 for a season total of 19-14-1 and taking 350 from our season total of 1660 leave us with 1250 to play with.

One final note from election day: The good people of Oklahoma voted last Tuesday to ban state courts from relying on Sharia (Islamic ) Law.

Rumpole notes: Now there are dozens of appellate briefs that will have to be re-written. and thank goodness the people of Oklahoma can still rely on their courts to use Soviet Law, Chinese Law, National Socialist Law, New Zealand Law, or any other law those idiots didn't put in the law.

This was obviously a straw man used to bring conservative voters to the polls in Oklahoma. They should be ashamed of themselves. Now back to our brief before the 3rd and how do you cite to Ayatollah Khomeini? Is is capitalized and underlined?

Leyritz DUI Trial: Here's the Sun Sentinel's Tonya Alanez on the Broward DUI Manslaughter trial. The prosecution has made several mistakes, and the trial has been the talk of the courthouse in Broward.

We are truly puzzled by an occurrence in the trial and perhaps our readers can help: Judge Marc Gold had previously ruled pretrial that the decedent's level of intoxication was irrelevant. It's a ruling we disagreed with, but so be it. How then- and we are serious about this- does Bogenschutz ask those questions during cross examination? As an officer of the court is he not required to abide by the pre-trial rulings? Now as it turns out the prosecution completely dropped the ball by not objecting, and the testimony came in. But what gave Bogenschutz the right to ask the question? Was it asked so as to preserve error? Or was he required to do that pre-trial? It has really been bothering us because it has worked out well for the defense and we're pretty sure we would not have done it.

See You In Court.

3RD DCA ROUNDUP-WOOPS HE DID IT AGAIN EDITION.

You know him, you love him (literary license) you can't live without reading ANOTHER one of his cases reversed on appeal.

Roosevelt v State: This was a Civil Commitment trial wherein the prosecution sought to have the defendant committed for an indeterminate length of time as a sexual predator. Judge Peter Adrien presiding.

From the decision:

For the reasons stated below, the judgment is reversed and the cause remanded for a new trial.

First, the State was allowed to cross-examine the expert concerning her testimony in a child custody case in the mid-1990’s in the State of Washington where the judge found the expert’s testimony not credible. The expert had been appointed as a guardian ad litem in a contested custody case involving four children. She opined that the children should go to the mother. The judge found the expert’s testimony not credible because the court determined that the expert had ignored testimony that the mother had physically abused the children.

The State contended that this was permissible because a party “may attack the credibility of a witness by . . . (2) Showing that the witness is biased.” § 90.608(2), Fla. Stat. (2008). We are unable to see any plausible argument that service as a court appointed guardian ad litem for four children approximately thirteen years previously demonstrates bias on the part of the expert in a Jimmy Ryce Act proceeding tried in 2008.

Second, the State was allowed to question the expert concerning $18,000 she paid in back payroll taxes to the IRS in the late 1980’s in relation to a for-profit hospital she and a business partner operated. There was a lawsuit between the partners. The trial court found her testimony not credible regarding a portion of the payroll taxes that had not been paid. This IRS-related cross-examination consumed three pages of transcript. The State argued that this cross-examination was a permissible inquiry into bias. We disagree. Again, this evidence concerned a purely collateral matter and admitting the evidence was error.

For the reasons stated, the judgment is reversed and the cause remanded for a new trial.

Rumpole opines: Judges need to read the evidence code and understand it and keep current on case law about rules of evidence. Judges are entrusted to be the gatekeepers of what a jury sees and bases their decision on.

THIRD DCA ROUNDUP-BONUS SUPREME COURT CASE EDITION.

Because after all, this is a legal blog and not a nutrition blog. You wanted a legal discussion? You got it.

Just Do the right thing Reemberto.....

In McDonald v. State, the defendant was convicted and sentenced as a GORT (trivia Q- which classic SCFI movie from the 50's has a robot named Gort? Bonus Q- what are the words in that movie that must be told to Gort to save the earth? Hint. Ask Klatu. )

He filed a rule 3.850 challenging his eligibility as a GORT offender and the state confessed error. The case was remanded and the defendant was sentenced without the GORT sanctions. Fast forward to his release and he is told he must register as a repeat offender which he clearly was not. He filed a motion before Judge Diaz and inexplicably, it was denied. Not any more.

There were six criminal opinions released on July 14. Five of them are one line affirmed opinions with a cite. McDonald was the only written opinion of substance. Must be a lot of Judges on summer sabbatical on the campus of FIU.

BONUS FLORIDA SUPREME COURT DECISION:

QUERY: Does the reading of Miranda warnings by a police officer during an otherwise consensual encounter turn that encounter into a seizure under the 4th Amendment?

The 2nd DCA said "yes", the 4th DCA said "no" , (the 3rd DCA questioned the viability of the 4th amendment anymore and chastised the officer for reading Miranda rights when a confession is clearly covered these days under the "inevitable discovery once they beat him long enough" rule.) and the Florida Supreme Court said........

In Caldwell v. State, that reading Miranda warnings does NOT turn a friendly chat with Officer Fluffy into a seizure under the 4th Amendment.

We note from the outset the divergent positions taken by the two opinions certified to be in conflict. For its part, the Fourth District seems to have concluded that as a per se matter, an officer‟s reading of Miranda warnings during an otherwise consensual encounter will always result in a Fourth Amendment seizure. See Raysor, 795 So. 2d at 1072. By contrast, the Second District has reasoned that because the warnings are intended to be a protective measure, Miranda warnings given during a consensual encounter may contribute to a seizure finding within the totality-of-the-circumstances framework. See Caldwell, 985 So. 2d at 605. Thus, we are presented with two questions of law. First, does the reading of Miranda warnings result in a per se seizure under the Fourth Amendment? Second, if the first question is answered in the negative, what impact do the warnings have within the totality-of-the- circumstances/reasonable person analysis set out in Mendenhall?...

In Popple v. State, 626 So. 2d 185 (Fla. 1993), this Court identified three levels of police-citizen encounters. The first level, a “consensual encounter,” involves minimal police contact and does not invoke constitutional safeguards. During a consensual encounter, an individual is free to leave at any time and may choose to ignore the officer‟s requests and go about his business. Popple, 626 So. 2d at 186. The second level is an “investigatory stop,” during which an officer “may reasonably detain a citizen temporarily if the officer has reasonable suspicion that a person has committed, is committing, or is about to commit a crime.” ...

The issue we must resolve in this case is whether Officer Crisco‟s actions transformed what began as a first-level consensual encounter into a second-level investigatory stop. See Popple, 626 So. 2d at 186....

We emphasize that Miranda warnings are not required in any police encounter in which the suspect is not placed under arrest or otherwise in custody under Ramirez. See McCarty, 468 U.S. at 440 (noting “the absence of any suggestion in our opinions that Terry stops are subject to the dictates of Miranda”)...

We first address whether Miranda warnings, as a per se matter, will always

transform a consensual encounter into a seizure under the Fourth Amendment...

As we noted in G.M., “[t]he United States Supreme Court has consistently maintained that per se rules are inappropriate in Fourth Amendment analyses of whether a „seizure‟ has occurred.” 19 So. 3d at 978...

In accordance with the cases discussed above, we hold that to the extent the Fourth District determined that the mistaken administration of Miranda warnings results in a seizure as a matter of law, its conclusion was error. The proper test is whether, based on the totality of the circumstances, a reasonable person would feel

free to end the encounter and depart. While an individual act on the part of an officer may constitute a show of authority that contributes to a seizure finding, we again reject the notion that any single factor, taken alone, will be conclusive in every case in which it appears

Having rejected the Fourth District‟s conclusion that Miranda warnings will always result in a seizure during an on-the-street police encounter, we must determine to what extent, if any, Miranda warnings increase the coercive nature of such an encounter...

Miranda warnings are a formality of arrest and are required only at the time of an arrest or prior to custodial interrogation. Further, the warnings are associated in the public mind with the spectacle of an individual being placed under arrest. Therefore, it is not unreasonable to conclude that an individual who is given Miranda warnings during what begins as a consensual encounter may interpret those warnings as a restraint on his or her freedom....

Based on our above discussion, we believe that the reading of Miranda warnings during a consensual police encounter might add to the coercive nature of that encounter under at least some circumstances. ...

Further, we hold that Miranda warnings do not result in a seizure as a matter of law. While we do not discount that possibility that Miranda warnings may increase the coercive atmosphere of a

police-citizen encounter outside the context of a custodial interrogation, we find that the warnings did not result in a seizure in this case.

Rumpole says: We're going to form the Lawyers for Per Se Rules club. Who's in?

3rd DCA ROUNDUP-KEEPING COOL EDITION

UPDATE: SOBERING UP. Word reaches us that apparently our favourite federal blogger went on a bit of a bender over the 4th of July long weekend. Too many Tequilla shots over too short a time span and the next thing you know he's wrecked his blog with nauseous blue wallpaper and hidden naked nymphs frolicking about. Well he's apparently sobered up because the blog has been changed back to a semi-normal look befitting the respectable trial lawyer that he is. So we encourage all of our readers to click the link on the left and visit the Federal Blog and enjoy its new look.

<----VOTE IN OUR NEW POLL ON THE NEW LOOK OF THE FEDERAL BLOG.

It's hot. You're tired. Your client is cranky. The AC isn't keeping up with the heat and the pool feels like a warm bath. Welcome to Miami in July.

However, at the bunker they called The Third things are humming along.

Before we begin, some guy with a blog really doesn't like the ASA we call "Special K."

Apparently earlier this week some case got nolle prossed and everyone is up in arms over it, even here at the civil blog. You figure it out. We have better things to do.

WHO'S THE HARDEST WORKING PD?

WHICH JUDGE JUST GOT SPANKED FOR COPYING FROM THE STATE AND GET'S HIS OWN WING IN THE RUMPOLE HALL OF SHAME?

WHAT'S RUMPOLE'S FOURTH RULE OF LAW?

Read below, and find out.

The hardest workin PD in Miami is at it again! Yup, you know him, you love him, you can't enter Judge Thorton's courtroom without seeing him in action. We speak of none other than JAY KOLSKY, Esq, SUPER PD !!!!!

Unfortunately for Jay, he's just going to have to keep working harder than the rest, because in State v. Bowens, the court reversed Judge Thornton's order allowing Jay to withdraw from cases because of his burdensome case load.

Here's the deal- Silent Charlie and his crew are trying to get the 3rd and the Supremes to say that an excessive caseload in and of itself is sufficient for the PDs to decline representation and if already appointed, to withdraw.

In the legendary words of Oliver Wendell Holmes: Ain't gonna happen. No appellate court is going to draw a line in the sand and say any amount of cases over that number equals a conflict. What the 3rd required in the previous case (now on cert before the Florida Supreme Court) and in this case is an individualized showing on a case by case basis:

On May 13, 2009, before the present case was filed, this Court reversed a trial court order permitting PD11 to decline representation in all future third-degree felony cases by reason of PD11’s excessive caseload. See State v. Public Defender, Eleventh Judicial Circuit, 12 So. 3d 798 (Fla. 3d DCA 2009), review granted, No. SC09-1181 (Fla. May 19, 2010). We held then, and continue to hold, that while a trial court must determine whether counsel is sufficiently competent, this determination must occur on a case-by-case basis. Id. at 802.

COME ON JUDGE MILLER- BE A JUDGE.

Here's the thing about Judges we don't understand. They spend all this time trying to get elected or appointed, and then when they get on the bench they don't want to do the scut work. It's "Tee-times" "and who's getting the check at Joes?" that they all worry about.

Rumpole's Fourth Rule of Law: When you rely on someone else to do the dirty work, it only makes matters worse.

The appellant appeals from the trial court’s order striking his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850 as facially insufficient. The order, taken verbatim from the State’s response, strikes the appellant’s motion without prejudice for failure to meet the requirements of Florida Rule of Criminal Procedure 3.851(e)(2)(C).

Here's a judicial practice tip: when you deny someone's motion, you need to cite THE CORRECT STATUTE!

Miller gets himself reversed, and we think publicly humiliated by cutting and pasting (or just old fashioned copying off of someone else's paper) from the State's response. No one bothered to read the statute. It's called fact checking. After he typed his order, did he bother to review it and double check the statute before signing it? NOPE.

And for that Judge David Miller, you get your own wing in RUMPOLE'S HALL OF SHAME. It's the "not checking your work and copying from the State" wing, and hopefully it will not get over crowded.

See you in court, where because of our lovely robed readers, there's never a dearth of things to chuckle about.