ELECTIONS MATTER - THIS ELECTION MATTERS - PART TWO .......

THE CAPTAIN REPORTS:

 

THREE 1000-YEAR CONCURRENT SENTENCES

WITH PAROLE

DOES NOT VIOLATE THE EIGHTH AMENDMENT. 

So says the Florida Supreme Court in an opinion issued last week. (See Franklin v. State, SC14-1442, November 8, 2018).

In 1984, "at the age of 17, Arthur O’Derrell Franklin committed a series of brutal crimes against women. In each case, the female victim testified that Franklin violently attacked her, kidnapped her, drove her to a secluded area and brutally battered, raped, and robbed her while evidencing an extraordinary cruelty and a perverse enjoyment of the suffering he was inflicting." "In each of three cases, Franklin was convicted of armed kidnapping, kidnapping, armed sexual battery, sexual battery, armed robbery, robbery, and aggravated assault."

Franklin was sentenced to three 1,000 year concurrent sentences and the Parole Commission set his presumptive parole release date  in the year 2352.  Franklin, now 51 years old, has spent his entire adult life in prison.  As a result, and pursuant to Graham v. Florida, 560 U.S. 48 (2010) and its progeny, Franklin filed a 3.850 which was denied by the trial court. The First DCA affirmed.

"In Graham, 560 U.S. at 75, the Supreme Court held that the Eighth Amendment categorically forbids a sentence of life without parole for juvenile nonhomicide offenders, and required that any life sentence for a juvenile nonhomicide offender be accompanied by "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation" before the end of the sentence and during the offender’s natural life."

In a 4-3 decision with Justice Lewis providing the surprising swing vote, the Florida Supreme Court approved the First District’s decision in Franklin and held that "Franklin’s 1000-year sentences with parole eligibility do not violate the categorical rule of Graham."  With their decision, our state supreme court was saying that, because Franklin's 1,000 year sentence was accompanied by "parole", the 17 year old (at the time he committed the crimes) Franklin had some meaningful opportunity to obtain release!

On Tuesday, November 6th, Election day, I wrote about the election contests that might interest our readers. The judicial contests in Dade and Broward and two of the constitutional amendments. But, the bigger point of the post, the title "Elections Matter", was clearly missed by more than a few voters.

As a result, it looks like we will be calling Ron DeSantis "Governor" for at least the next four years. That is unless the recount somehow manages to find some 33,700 more votes for Andrew Gillum.

So, it’s the decisions in cases like Franklin that we, as lawyers, and by extension, the clients we represent, have to look forward to over the next 20-30 years, or possibly even longer.

Why 20-30 years?  Because, unlike DeSantis, who may be our Governor for only four years, or at most, eight, the three Supreme Court justices he appoints, likely to be named in January of 2019, will be on our state’s highest court bench for decades.   The current make-up of the Court, with four left leaning justices includes three who will be retiring on January 8th: Justices Pariente, Lewis, and Quince.  With DeSantis' three appointments, the court will include six of seven justices who will all be Federalist Society dyed in the wool conservatives.

ELECTIONS MATTER.

PS: Please join me in wishing the Justice Building Blog and Horace Rumpole a Happy 13th Birthday.  It was on November 16, 2005 that Rumpole first posted.  I was invited to join the Blog a few months later.  Today's post is the 3,599th posted over the past 13 years.  Thank you Rumpole for allowing me the opportunity of contributing to your Blog. 

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

AND YOUR NEXT THREE SUPREME COURT JUSTICES WILL BE CHOSEN BY GOVERNOR ?????

THE CAPTAIN REPORTS:

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

Governor Rick Scott will not get the chance to choose the three new Florida Supreme Court Justices on his final day in office. So ruled the current Florida Supreme Court in an unsigned Order issued today.

Last Wednesday, we wrote a post entitled: "CAT 4 STORM TO HIT STATE CAPITAL, BUT IT’S NOT NAMED MICHAEL".   We described the controversy being litigated over which Governor, Rick Scott or the newly elected Governor (DeSantis or Gillum) would be the one to appoint the next three Florida Supreme Court Justices.

Today, the Florida Supreme Court issued the following Order in CASE NO.: SC18-1573, League of Women Voters, et. al. v. Rick Scott:

"The petition for writ of quo warranto against Governor Rick Scott is hereby granted. The governor who is elected in the November 2018 general election has the sole authority to fill the vacancies that will be created by the mandatory retirement of Justices Barbara J. Pariente, R. Fred Lewis, and Peggy A. Quince, provided the justices do not leave prior to the expiration of their terms at midnight between January 7 and January 8, 2019, and provided that the governor takes office immediately upon the beginning of his term. Governor Scott exceeded his authority by directing the Supreme Court Judicial Nominating Commission ("the JNC") to submit its nominations to fill these vacancies by November 10, 2018.

The sixty-day period after nominations have been certified within which the governor is required to make appointments, as set forth in article V, section 11©, of the Florida Constitution begins to run only when the governor with the authority to appoint has taken office. As the JNC is an independent body, it is not bound by Governor Scott’s deadlines.

The issue of when the JNC can certify its nominations shall be the subject of oral argument to be held at 9:00 a.m. on Thursday, November 8, 2018. A maximum of twenty minutes to the side is allowed for the argument, but counsel is expected to use only so much of that time as is necessary."

In an interesting twist, Attorney Jeffrey Leonard Burns, today filed a VERIFIED MOTION TO INTERVENE FOR LIMITED PURPOSE, OR ALTERNATIVELY FOR LEAVE TO FILE INTERVENOR PETITION.

In Burns’ Petition, he claims that the three Justices, Pariente, Lewis, and Quince, should be disqualified from this action "due to their objective economic conflict of interest" in the case. He states in his Petition that "the Retiring Justices have an economic incentive to determine that their last day of work ends at 5:00 p.m. on January 8, 2019, as opposed to January 7, 2019. ... The three Retiring Justices will each lose one day of salary ($884.94) if they deny the Petitioners' request for relief."

Meanwhile, The Florida Supreme Court’s JNC met last Thursday and agreed to an interview schedule of the 59 applicants for the three open seats. The interviews will take place on November 3^rd and 4^th here in Miami and on November 8^th and 9^th in Tampa. The JNC had planned on sending the finalists names to Governor Scott on November 10, 2018.

Here is the interview schedule:

Miami International Airport Hotel

Terminal E; Level 2 to hotel lobby (7th floor conference rooms once in hotel)

(Door #11 if arriving from outside the airport)

305-871-4100

Nov. 3 – Miami

 

9:00 a.m. Alexander Bokor

9:30 a.m. Amy Boulris

10:00 a.m. Jeffrey Burns

10:30 a.m. Howard Coates

11:00 a.m. John Couriel

11:30 a.m. Cynthia Cox
1:00 p.m. James Duncan
1:30 p.m. Manuel Farach
2:00 p.m. Jonathan Gerber
2:30 p.m. Edward Guedes
3:00 p.m. Bradley Harper
3:30 p.m. Terrance Ketchel
4:30 p.m. Mark Klingensmith
5:00 p.m. Jeffrey Kuntz
5:30 p.m. Bruce Kyle
 

Nov. 4 – Miami

9:00 a.m. Barbara Lagoa

9:30 a.m. Norma Lindsey
10:00 a.m. Robert Luck
10:30 a.m. Mark Miller
11:00 a.m. Carlos Muniz
11:30 a.m. Hayden O’Byrne
1:00 p.m. William Roby
1:30 p.m. Cymonie Rowe
2:00 p.m. Leonard Samuels
2:30 p.m. Edwin Scales
3:00 p.m. Anuraag Singhal
3:30 p.m. Elijah Smiley
4:30 p.m. Donna Greenspan Solomon
5:00 p.m. William Thomas
5:30 p.m. Daryl Trawick
 
Tampa interview location:
Airport Executive Center
2203 N. Lois Avenue
Tampa, FL
(813) 348-4963

Nov. 8 – Tampa

 

9:00 a.m. Michael Andrews
9:30 a.m. J. Andrew Atkinson
10:00 a.m. Ross Bilbrey
10:30 a.m. Hunter Carroll
11:00 a.m. Angela Cowden
11:30 a.m. James Daniel
1:00 p.m. Bryan Gowdy
1:30 p.m. Jamie Grosshans
2:00 p.m. Laurel Lee
2:30 p.m. Robert Long
3:00 p.m. Mark Mahon
3:30 p.m. Scott Makar
4:30 p.m. Michael McDaniel
5:00 p.m. Timothy Osterhaus
5:30 p.m. Thomas Ramsberger

Nov. 9 – Tampa

 

9:00 a.m. Eric Roberson
9:30 a.m. Clayton Roberts
10:00 a.m. Samuel Salario
10:30 a.m. Tatiana Salvador
11:00 a.m. Stephen Senn
11:30 a.m. Pat Siracusa
1:00 p.m. Jonathan Sjostrom
1:30 p.m. Adrian Soud
2:00 p.m. John Stargel
2:30 p.m. Anthony Tatti
3:00 p.m. Matthew Thatcher
3:30 p.m. M. Kemmerly Thomas
4:30 p.m. Waddell Wallace
5:00 p.m. Thomas Winokur

You have to feel for Judge William Thomas and Judge Daryl Trawick. They will be the last two applicants interviewed on day two. I sure hope the JNC members are taking their no-doz, (do they still sell that stuff), that day.

 

It will be very interesting to see how all this plays out.

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

　

CAT 4 STORM TO HIT STATE CAPITAL, BUT IT’S NOT NAMED MICHAEL .......

UPDATE: WE RECEIVED THIS COMMENT: 

steve bousquet said...

Rumpole:

You and your writing staff are to be commended on what I consider to be one of the best blogs I have had the occasion to read. I am the Tallahassee Bureau Chief for the Tampa Bay Times and I read many blogs. Your writer's commentary today on the firestorm brewing up here in the state capital is spot on. Keep up the good work.

Steve Bousquet
Tampa Bay Times

Wednesday, October 10, 2018 1:26:00 PM

Rumpole Responds: Dear. Mr. Bousquet:

Thank you for the nice comment. Welcome to what is generally

considered the finest legal blog in the land; nee the Universe.

The writing is superb; the opinions spot on, and we are read by all the movers and shakers of the legal community. And beyond that, we are also read by those who wear black robes to work. And if you can get beyond the hoi polloi, you will find a blog that informs, entertains, and provides football picks that are usually 100% winners (like last week). In short, we report ….you decide. (hmmm that seems familiar). No fake news we. We hope you and your community made it through the storm, although if you took an honest poll of the residents of South Florida, there isn't one person who wasn't experiencing schadenfreude at the Panhandle's misfortune. See, no other blog uses words like schadenfreude or hoi polli even though a substantial portion of our readers (see the above comment about black robes) do not know what those terms mean. 

Yr obt svt,

H Rumpole, 

Blog Proprietor.  

THE CAPTAIN REPORTS:

BREAKING NEWS:

The Florida Supreme Court JNC met today and voted to interview all 59 applicants.  The interviews will take place in Miami on November 3rd and 4th and in Tampa on November 8th and 9th.  The JNC will then meet on the evening of the 9th and into the 10th, if necessary, with the plan of sending the names of the finalists to the Governor on November 10th.


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

On Monday, January 7, 2019, a convergence of significant events will take place in Tallahassee, Florida. If you thought the effects of Hurricane Michael were going to have a major effect on the surrounding community for a long time, the Hurricane that I speak of will be one hundred times stronger and will last for one hundred years longer.

You see, on that date, Governor Rick Scott’s term concludes at the end of the day on that first Monday in January. And, at the exact same time, three members of the Florida Supreme Court will retire, including Justices Barbara Pariente, Fred Lewis, and Peggy Quince. It is also important to note that, the new Governor’s term begins on "the first Tuesday after the first Monday in January"; in this case that means on Tuesday, January 8th.***

Now, anybody that follows the decisions of the current make-up of this Supreme Court, and the one immediately before it knows what all this means. Until December 31, 2016, an overwhelming majority of the controversial decisions of the court were split 5-2; the five voting together included Pariente, Lewis, and Quince, along with Justice’s Labarga and Perry. When Justice Perry retired on the last day of 2016, Governor Scott appointed Justice Alan Lawson to replace him. For most of the past 21 months, the overwhelming majority of the controversial decisions of the court have been a 4-3 vote, with conservative Lawson joining the side of Justices Charles Canady and Ricky Polston.

So, as you can see, with the departure of Pariente, Lewis, and Quince, the three most liberal justices on the court, a win by gubernatorial candidate Ron DeSantis next month would result in a dramatic shift of the court to the right with a resulting 6-1 right wing majority. On the other hand, a win by candidate Andrew Gillum, would result in the court maintaining a razor thin 4-3 lean to the left.

Now that you understand what is at stake, understand that Governor Rick Scott, (whose successor will be elected on Tuesday, November 6, 2018), has decided that he, not the Governor-Elect, will appoint the next three justices to succeed Pariente, Lewis, and Quince.

That’s right, a lame duck Governor, who is term limited, has decided that, rather than let the voters of the great State of Florida decide, through their choice at the ballot box, whom between DeSantis and Gillum should choose the three new justices, Scott will do that for them.

*** Note that, in the recent past, Governors Jeb Bush, Charlie Crist, and Rick Scott, all took the oath of office well before the first Tuesday after the first Monday in January so as to assume gubernatorial duties immediately on the first day of their respective terms.

In order to head off this constitutional crisis of Category Four proportion, last year, the League of Women Voters filed suit against Rick Scott. The League asked the Court to issue a writ of quo warranto against Governor Rick Scott prohibiting him from "filling any judicial vacancies on Florida's appellate courts that occur due to terms expiring in January 2019." The League's basis for filing the petition was Governor Scott's December 2016 announcement of his intent to appoint the replacements for three justices of the Court.

In their opinion issued on December 14, 2017, LEAGUE OF WOMEN VOTERS OF FLORIDA, et al., Petitioners, v. RICK SCOTT, GOVERNOR, Respondent. (No. SC17-1122), the Florida Supreme Court ruled, by a vote of 6-1, that the issue presented was not ripe for consideration, and the Court dismissed the petition. The lone dissenter was Justice Lewis.  The opinion can be read here.

Fast forward to September of 2018. On September 12, 2018, at the direction of Governor Scott and his legal counsel, the Florida Supreme Court’s JNC announced that they were accepting applications to fill the three upcoming supreme court vacancies as the result of the mandatory retirement of Justices Pariente, Lewis, and Quince due to all three reaching the age of 70. The application deadline was set for October 8, 2018.

On September 20, 2018, the League of Women Voters filed their new Petition Quo Warranto against Governor Scott. League of Women Voters, et al. v. Hon. Rick Scott, et al., (SC18-1573). The Docket can be read here.
 
On September 21, the JNC met to discuss retaining legal counsel to respond to the Petition. They hired former Justice Raoul Cantero. The League of Women Voters is repped by Former Speaker of the House John Mills.

By the deadline of October 8^th, there were a total of 59 applicants for the three seats. Two of the seats are At-Large while one seat must be filled by a resident of the 3^rd DCA jurisdiction (Miami-Dade and Monroe County).

On October 11^th, the JNC will meet to discuss the 59 applicants and to consider and select applicants for interviews and further consideration to fill the three positions of Florida Supreme Court Justice.

For many voters around the State, the issues of jobs, the economy, the environment, health care, and immigration dominate the landscape. But for many in the legal community, there will be no more important decision made over the next decade than the one that involves the replacement of the three retiring justices.

As stated above, the Florida Supreme Court JNC received a total of 59 applications for the three open seats. Of those, a total of 11 are residents of the 3^rd DCA. The applicants for that seat include four judges currently on the 3^rd DCA:

Judge Barbara Lagoa
Judge Norma Lindsey
Judge Robert Luck
Judge Ed Scales

and two Circuit and one County Court Judge:

Judge William Thomas
Judge Daryl Trawick
Judge Alex Bokor

The remaining applicants include 12 DCA judges, 27 Circuit Court Judges, and 1 County Court Judge along with 12 private counsel.

We will be closely watching the current Florida Supreme Court as they review the legal briefs and then render a decision on this latest Petition for Quo Warranto filed by the League of Women’s Voters. (As of the posting of this story, the Court has not yet agreed to set the case for Oral Argument).

Anyone care to guess how they will rule this time .......

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