3RD DCA ROUNDUP 2010 EDITION & ROSCOE PARRISH NOT GUILTY

UPDATE: Judge Langer writes in regarding the decision we summarized below:

Lester Langer said...

The Jass or Jasp program is not a state run program. Therefore it is not a DJJ program but is run by the county and the State Attorney's office. As I judge I can suggest, beg and try to convince a party to accept a diversion offer but I cannot impose it as part of a DJJ sentence. I do not beleive that is legally permissible when I made my ruling. I also do not think I could just dismiss the case because the State chose to go forward. If the 3rd DCA is now telling us, Juvenile Judges it is now state law that it is permissible to sentence a child to diversion, I think that is great. It now gives juvenile judges another option in our tool box which I did not think existed before this decision. This was not a trial tax or anything like that. I tried to the best of my ability to get the case resolved in the child's best interest. The facts based on the testimony showed she committed a battery. I sentenced her according to the law of the state as I understood it. Now it appears the 3DCA is telling all judges that we can sentence someone to diversion at least in juvenile cases. Bravo.

Lester Langer

Rumpole responds: Bravo to you Judge Langer!! This is why this blog works and is valuable. An important issue was raised, and we have now heard from the Judge involved. His response is reasonable and his embracement of diversion for Juveniles is applauded. His explanation re: the trial tax is reasonable and we accept it. Judge Langer has never been known as anything other than a reasonable and committed jurist dedicated to the Juvenile Division.

Here's our first 3rd DCA roundup for 2010: But first a word from the Colonel Of Court Court on the acquittal at trial today of NFL star Roscoe Parrish:

The Colonel: All right soldiers, take a knee and gather round.

The scene was Courtroom 5-1 as two (countem- 2) DUI Chiefs faced off against Broward defense attorney Adam Swickle and Dade lawyer Frank Garviria who successfully defended former UM start and current Buffalo Bills standout Rosco Parrish in a DUI case before Judge Miranda.

The February 17 ,2009 stop occurred on the McCarthur causeway and had all the usual Miami Beach DUI suspects/cops piling on for overtime. Officer K. Cosner was the arresting officer, and we have intelligence reports that he folded under a long and difficult cross examination by Swickle. Parrish was found not guilty of the DUI charge and unfortunately for him there is now nothing preventing him from returning to the hapless Bills.

Dismissed! And remember, there's gold in them there misdemeanors.

Thank you Colonel. First up is the TRIAL TAX, Juvenile version.

In TR v. State, TR was found guilty of battery by swinging her lunchbox into a fellow student in response to an imprudent remark. (Have we really come to this now? Circuit Judges siting on juvenile cases involving battery by a lunchbox over a bus stop scuffle? No wonder why people think lawyers are out of control.) Anyway, the battery having been proven, Judge Langer proceeded to sentencing and refused to impose something called "Jass" which is we guess is a diversion program, because as the state argued, she went to trial and lost.

This is what is known as the trial tax, and it strikes at the very heart of our justice system. If defendants went to trial secure in the knowledge that if they lost they would only be punished for their conduct and not for having the temerity of actually forcing the system to work, then our system would be a hell of a lot more fairer. Too many lawyers talk clients out of trials because of the possible penalties a judge could impose for going to trial.

Back to Judge Langer and Lunch boxes. TR appealed on the issue of the sentence and Judge Shepherd admirably wrote against the trial tax: Juveniles have a constitutional right not to be unfairly penalized for the assertion of innocence and demand for trial. A.S. v. State, 667 So. 2d 994, 995-96 (Fla. 3d DCA 1996) (“‘The law is clear that any judicially imposed penalty which needlessly discourages assertion of the Fifth Amendment right not to plead guilty and deters the exercise of the Sixth Amendment right to demand a jury trial is patently unconstitutional.’”)

Robinson v. State: Judge Leonard Glick catches a reversal in retirement over imposing consecutive 30 yr sentences AND sentencing the defendant as a habitual offender. The Florida Supreme Court has long held a trial court is not authorized to enhance both the defendant’s sentences as a habitual offender and make each of the enhanced sentences consecutive when they arise out of the same criminal episode.

What is a single criminal episode? Glad you asked: Generally, the courts have considered whether separate victims are involved, whether the crimes occurred in separate locations, and whether there has been a temporal break between the incidents.

That's all for now. This Commonwealth is abuzz over the results of the election yesterday, but we can report this: this was mostly about jobs and the economy and not health care as Massachusetts already has universal health care for its citizens (something Republican Governor Mitt Romney signed into law.)

See You in court.