This week's opinions from the 4th affirming or reversing cases from this circuit.
Categories: Backman, Gardiner, Aleman, Seidman, gold, Gates, Cases, Weinstein
Harris v. State: Seidman case. The issue in this case was whether a CI should be disclosed. Because the defense did not make a colorable showing of an entrapment defense and the request for disclosure rested on nothing more than speculation, case was affirmed.
Henao v. State: Weinstein case. Case affirmed. The appellate court found no harmful error in giving the principal instruction.
Castro v. State: Gardiner case. A jury found the Defendant guilty of solicitation to commit first degree murder and conspiracy to commit first degree murder. No error to not instruct on lessers of solicitation and conspiracy to commit second degree murder. Also, no double jeopardy violation to be convicted of both crimes.
Rutherford v. State: Gates case. Rutherford was convicted of perjury for filing a false bar complaint against her employer. There was sufficient evidence to convict Rutherford because her complaint stated that she "knew for a fact" that her attorney had forged a signature on a document. At trial, testimony showed that although there was circumstantial evidence tending to suggest there was a forged signature, there was no why Rutherford could have known for a fact that the signature was forged. If Rutherford had alleged that she "suspected’ or "believed" that the signature was forged, there would be no perjury. Testimony also showed that the attorney in fact did not forge any signature.
Shepard v. State: Aleman case. Although section 948.06(5) states that the defense must prove by clear and convincing evidence that he or she did not have the ability to costs of supervision or restitution, the appellate court found that the state still has the burden to prove inability to pay before a willful violation can be found. Case is reversed on that ground and affirmed for a finding of willful violation on other grounds.
Ragin v. State: Backman case. Case reversed where Backman sentenced Defendant as a PRR for the crime of burglary of an occupied conveyance. Because this crime is not enumerated in the statute and because it did not qualify as a crime of violence, a sentence as a PRR is impermissible.
Fricano v. State: Gates case. Defendant is in a cab at 2:00 am and the cop pulls the cab over for a traffic violation. Fricano gets out of the cab and cop orders him back inside and asks to see his ID. Cop sees Fricano bend into the cab and crush a crack rock; a pipe was found on the seat. Fricano, as a passenger in a car stopped for a traffic ticket, had a right to leave. When the cop ordered him back into the car, this was an illegal detention because there was no founded suspicion of criminal activity. Motion to suppress should have been granted, case reversed.
Stenns v. State: Gold case: Stenns is parked in an alley and Cops pull behind Stenns car, preventing him from leaving. This amounted to a detention, not a consensual encounter, and the drugs later found as a result of the illegal detention should have been suppressed. Case reversed.
This is the kind of information Jaab should be providing and not attacks.
To the dinstinguished poster "Anonymous":
You make an ad-hominem attack on the organization as a whole, yet fail completely to heed your own advice. You criticize JAAB and do not discuss the case law. I, however, will.
I am surprised mostly by the Gold case. Not by the 4th's decision, but that Gold failed to grant it initially. I am curious to see how it was argued at the trial level and compare it to the appleate claims. I would have guessed that if the facts were as they were presented on the site, Judge Gold would have come to a different decision initially. Can't judge a judge or an opinion of other judges by their covers.
Aleman case: Harmless error. Error nevertheless. Ironic case name. Shepard. I'm glad this was not the sole basis of the violation. It is a good reminder of one of the burdens the defense must meet on a VOP for failure to pay. It is also a roadmap and helpful for VOP's general.
Seidman: Affirmed. Why is he leaving DV court anyways? One might not agree with his bonds or demeanor, however, I believe, he believes he is following the law. So does the 4th. See Generally, Critical Legal Realism.
Weinstein: Affirmed. Joke that this was appealed. He gave an instruction. His honor is a Mench on the Bench.
Gardiner: Affirmed. I mean, this is not rocket science here. Judge is totally right. Ummm... Blockburger (sp?). I think I learned that somewhere during 2L.
Gates: Affirmed. "I knew for a fact" was the lynchpin on a perjury charge. If that statement doesn't rise to the level of perjury, I don't know what does. Perjury is hard to prove, but, the State kind of had a awesome statement.
Backman: Reversed. His honor, in Roman's experience, gives a great and fair trial. Without reading the opinion, I wonder if expressio unius est exclusio alterius came into play and if the Rule of Lenity did as well. He tries his best to follow the law in trial and that counts a lot. ROC court judges are bound to deal with repeat (insert word here) and have very little discretion on a lot of issues. Plus as a citizen of Broward, I'd rather not have PRR folk living near me, although I'll take their money to defend them and try towin. If you have had a trial with Judge Backman, I think a lot would agree that the trial is fair, challenging, and thought provoking. His analysis is never flippant, intimidating to some perhaps, but he always tries his best. Win some, lose some. I'm sure the defendant was an altruistic individual who often donated his earnings to the Humane Society.
The Other Gates Case; Reversed. I have to agree with the 4th here. Like Maroni is a legal scholar! But, the initial stop occurs prior to the sight of the crack. Wong Sun baby. Wonder what facts said with regard to drivers conduct prior to police order to return to car.
Ok, that's my spin although I have not researched the briefs or seen the cases. Basically, I am relying on the great Cliff's notes post.
Yes, they are Cliff notes. I remember trying to take a high school English lit. test not reading the book and just relying on the Cliff notes. I got an "F". I am glad someome reads these things.
Backman does give a fair trial. I am surpised at a few reversals from that courtroom over the past few months. Really bad rulings on Backman's part.
Gutless Wonders on the Bench: Gates, for example. On November 19th, 2004 it was proven to Judge Gates that the City of Hollywood Police Department has altered evidence in a criminal prosecution against Donald Baker for assault on a law enforcement officer. Baker was convicted on perjury and altered evidence and sentenced to serve 5 years. The 4th DCA affirmed "without prejudice to the Defendant to raise his issues in the trial court pursuant to Criminal Procedure Rule 3.850. In October of 2006, Defendant filed his Rule 3.850 Motion and approximately 30 days later, Judge Gates entered an order directing the state to respond within SIXTY days. 91 days later, the state filed a motion for continuance; 2 days later, Judge Gates granted the motion. The state then checked out the court file, and filed yet another motion for continuance. Enough was enough, and Baker petitioned the 4th DCA for a Writ of Mandamus to force Judge Gates to stop favoring the City for its corruption, and the state attorney, for unreasonably delaying the case. The 4th DCA gave the State 20 days to respond. The Attorney General made numerous attempts to contact Satz; but, Satz refused to accept their calls or to return the Attorney General's calls. On the 20th day, the Attorney General filed its motion for continuance advising the court that the State Attorney had refused to accept their calls or to return their calls. (This is understandable on the part of Satz, because on the day before the Baker trial, his ASA ordered the City of Hollywood police department to re-alter the video evidence and excise the evidence of alteration. Satz will have to answer for that corruption). Mr. Finkelstein's assistants, Madeleine Torres and Larry Schweiker refused to defend the Defendant and to bring forth video experts who had proved to their satisfaction, earlier, that the video tapes had been altered and fabricated. At trial, the state, through its witness, Det. Forest (forgot his last name), the head of IA, testified that an arrested person does not have the right to defend himself against the attacks upon him by police officers; the arrestee must only curl in a fetal position and accept the kicks, smashing of the face against a concrete floor, and whatever other injury the police officer wishes to inflict. The PD did not ask for the standard jury instruction on this issue and left the IA officer's testimony uncontroverted. Perjury was the game of the day at trial, and on recess, one of the witnesses, officer Frances Hoeflinger, jumped down off of the witness stand and began doing push ups on the courtroom floor. The ASA, Brad Edwards, told the Defendant later that he thought he had a crazy person on the stand. Baker asserts that the officer is on steroids. Defendant is clearly innocent; Judge Gates knows it, yet, he persists in refusing to set a hearing on Baker's 3.850 motion. He does not want to be politically incorrect of exposing the city for its corruption.
The Attorney General has advised the 4th DCA that it (the AG) will file a response to Defendant's Rule 3.850 motion and has promised the 4th DCA that this case will be resolved within 15 days after Judge Gates returns from recess on May 30th. Apparently, the AG has ousted the State Attorney from further participation and intends to file appropriate responses in the Circuit Court (Judge Gates). So, this 'do the right thing for the cops judge will have to get off the pot. 8 months have passed since the filing of the Motion and, still, Gates does nothing. When we sweep the courthouse of incompetence at the next election, I will be campaigning for whoever runs against Judge Gates. Whoever it may be, they could not be as bad as Gates. I am hopeful that the Attorney General will bring this matter to the attention of the judicial qualifications committee. Maybe we can get rid of one bad judge that way.
The City alleges that a true copy of the original of the video was produced to defense experts hired by the defendant's stepfather and later appointed by the court. The experts say that the City did not provide a true copy of the original and of the four differing versions put out by the City, none are an identical copy of any of the other versions. Therefore, the experts concluded that there is at least one more version of the video of the beating of Baker; that would be the original. To view the differing versions of the video, as well as stop-frame pictures, go to the link attached to this comments. (S.N.: The head IA officer's name is Forrest Jeffries). Oh, let me give you the conclusions of Jeffries as to what he considered an admission of guilt by Baker. Baker told me that he thought the officer was going to smash him in the face and he parried the punch by touching the officer. That, in my opinion, establishes the guilt of the defendant. Of course, defense counsel did not object to the opinion testimony of Jeffries and did not request a jury instruction on self-defense. Is the entirety of the 17th Judicial Circuit incompetent, or something? The only judges that have backbone and integrity is Judge Herring and Judge Victor Tobin. I am somewhat prejudiced in this regard, because I was Judge Tobin's paralegal for five years before he took the bench.
As further evidence of incompetency, I am doing research on a case, now, where a person is serving 3 years for perjury; he was never informed against, he was never afforded counsel; he did not have a trial and was represented at sentencing by an attorney who, at that time, was suspended from the practice of law.
I think that what needs to be done is to excise some egotistical professors from Nova S.E.U., and bring in some attorneys/professors, who have a genuine knowledge of law.
Am I being too harsh? Look at the history of proceedings in this circuit. Look at what is being attempted to insert a successor to Dale Ross. Thanks to Vic Tobin, we may have fairness
As I told you and everyone else--this is not incompetence, but knowing, willful, deliberate unlawful action to sabotage the very 3.850 process itself by Broward and 4th DCA judges (in collusion, duplicity and conspiracy with proescutors who all took oaths to do otherwise) to prevent it from ever meaningfully taking place. My JQC complaint is still on file of my mandamus panel of KLein, Shahood, Taylor and them CJ Warner refusing to issue mandamus to compel Gardiner to timely rule on a 3.850 thereby preventing and obstruction the law, the rule and violating the Canons of ethics by undermining confidence in the judiciary which is exactly what you are complaining about. In so doing and Brooke Kennerly of the JQC assisted aided and abetted these judges in violating the law by refusing to even investigate the problem and its consequences of which you are also complaining. It clearly shows the willingness of judges and proesecutors from Broward and the AGs office to prevent you and your client's lawful and constitutional access the courts and the state's lawful appellate processes, and proves that the "state system is ineffective and futile" invoking federal habeas corpus under 28 USC 2254(b) and extensive case law and waives exhaustion of any further state remedies. By failing to get your client relief, you do him an ineffective disservice, and with my case and many others included shows that it is "beyond accident, mistake or inadvertance" especiall when the very state judges opining the case law that states it is a violation of Rule 3.850 as well as R. Jud. Admin. 2.050(f) arbitrarily with reckless disregard for the law and the rights for the defendants, refuse to equally apply the law as written and decided. Remember, the duty of the AG is to seek the truth, guarantee to fundamental fairness of the proceeding and law as well as defend the lawless action of its own perpetraitors--a direct conflict of interest and contrary to the interest of justice. To say these people don't have a genuine knowledge of the law is absurt--they have intimate knowledge--espedcially when it's stuck right in their faces in a pleading or petition--they are chooooooosing to disregard and break it, and then abuse the PCA without opinion, even on fundamental errors, to further prevent grounds for a further appeal, including any opinion as to why the law as written and decided does not apply equally to you or your client.
As I told you and everyone else--this is not incompetence, but knowing, willful, deliberate unlawful action to sabotage the very 3.850 process itself by Broward and 4th DCA judges (in collusion, duplicity and conspiracy with proescutors who all took oaths to do otherwise) to prevent it from ever meaningfully taking place. My JQC complaint is still on file of my mandamus panel of KLein, Shahood, Taylor and them CJ Warner refusing to issue mandamus to compel Gardiner to timely rule on a 3.850 thereby preventing and obstruction the law, the rule and violating the Canons of ethics by undermining confidence in the judiciary which is exactly what you are complaining about. In so doing and Brooke Kennerly of the JQC assisted aided and abetted these judges in violating the law by refusing to even investigate the problem and its consequences of which you are also complaining. It clearly shows the willingness of judges and proesecutors from Broward and the AGs office to prevent you and your client's lawful and constitutional access the courts and the state's lawful appellate processes, and proves that the "state system is ineffective and futile" invoking federal habeas corpus under 28 USC 2254(b) and extensive case law and waives exhaustion of any further state remedies. By failing to get your client relief, you do him an ineffective disservice, and with my case and many others included shows that it is "beyond accident, mistake or inadvertance" especiall when the very state judges opining the case law that states it is a violation of Rule 3.850 as well as R. Jud. Admin. 2.050(f) arbitrarily with reckless disregard for the law and the rights for the defendants, refuse to equally apply the law as written and decided. Remember, the duty of the AG is to seek the truth, guarantee to fundamental fairness of the proceeding and law as well as defend the lawless action of its own perpetraitors--a direct conflict of interest and contrary to the interest of justice. To say these people don't have a genuine knowledge of the law is absurt--they have intimate knowledge--espedcially when it's stuck right in their faces in a pleading or petition--they are chooooooosing to disregard and break it, and then abuse the PCA without opinion, even on fundamental errors, to further prevent grounds for a further appeal, including any opinion as to why the law as written and decided does not apply equally to you or your client.
sorry for the double post--caused by a foul-up in the posting process
yeah, cause by you and mcnamera being nutjobs. Figure it out the wrongs have happened nothing anyone can do on here to change history. Not our fault you people associate yourselfs with criminals
The caveman on the Geico commercial sums up this comment: "WHAT!"
The way that I have approached this issue is that under Rule 3.850, a petition for writ of habeas corpus is precluded. Therefore, 3.850, in order to not be a suspension of the Great Writ, must be as efficacious as the writ, itself. Not only have I asked the 4th DCA to issue a writ of mandamus, I have asked the court to refer this matter to the Supreme Court for consideration of imposing time constraints on the judiciary when dealing with such motions. I will post a copy of my petition for writ of mandamus on the TerroristsInBlue web page where you can read the avenues of approach. Too, you may be able to provide some pointers where such petitions might be improved.
Copy and paste this link into your browser; it will take you to a copy of the mandamus action filed. There are also still-frames fully proving that the police attacked Baker, and not the other way around. These stills were taken from the videos attached to that Mandamus action. Get back to me. Here is the link: http://groups.msn.com/terrorisminblue/documents.msnw?fc_a=0&fc_p=%2FMandamus%20Action
Your son is a criminal, deal with it and move on.
sniff? sniff--I smell the flatulence spewing from that cowardly, threatening anonymous stalker from the dark, dank cesspool of the 17th judicial circuit who can't defend or disprove, only complain about exposers--and not smart enough to know how stupid he or she is--especially since Rule 3.850 and habeas corpus were designed to change history.
But he/she already knows everybody except him/her for the ignorant, stupid,cowardly fraud he/she is.
Perhaps your son will one day meet a Hollywood Police officer and end up on the wrong end of a jack-booted thug in a blue uniform. Howard Finkelstein found himself there; there is no reason to believe that any citizen cannot end up in the hospital because of the drug-induced terror of a Hollywood Cop. I only respond to your comment, because you are so uninformed. Proof of that fact is the way you talk out your ass.
John McNamara
Us "nut-jobs," have managed to force a hearing on Baker's Rule 3.850 Motion; the Public Defender's Office has advised that they are prepared to admit error in the defense of Baker, and they have asked the State Attorney to join with them in stipulating to a new trial. Of course, the SA has not, as yet, responded. A hearing is set for August 24th, at 8:30 AM. If speaking the truth and outing corruption makes us "nut Jobs," then, I admit guilt. On the other hand, watch your local news when the Baker case is finally disposed of. Meanwhile, take another look at the evidence:
http://groups.msn.com/terrorisminblue
John McNamara
Us "nut-jobs," have managed to force a hearing on Baker's Rule 3.850 Motion; the Public Defender's Office has advised that they are prepared to admit error in the defense of Baker, and they have asked the State Attorney to join with them in stipulating to a new trial. Of course, the SA has not, as yet, responded. A hearing is set for August 24th, at 8:30 AM. If speaking the truth and outing corruption makes us "nut Jobs," then, I admit guilt. On the other hand, watch your local news when the Baker case is finally disposed of. Meanwhile, take another look at the evidence:
http://groups.msn.com/terrorisminblue
John McNamara