November 22 Opinions from the Fourth
Categories: Gardiner, OConnor, WilliamsElijah, KaplanStanton
Blurbs do not contain PCAs or opinions dealing with post-conviction matters.
Prepared by Don Cannarozzi
Barton v. State, Williams case. Another case reversed where the Defendant was charged with aggravated battery and there was some evidence he acted in self-defense. Error to give an improper self-defense instruction that included the crime charged in the forcible felony section of the instruction. The court may read that portion of the instruction only if the Defendant was engaged in a felony other than the one for which he was charged.
McCall v. State, Gardiner case. The opinion states that the defendant was arrested after he was found sleeping in an unlocked car. It does not say for what he was arrested; however, after the arrest, the cops found a gun in the car and the state eventually charged McCall with possession of a firearm by a convicted felon. Gardiner granted two motions in limine: First, there would be no mention that the car was reported stolen; and second, that there be no mention that the serial number on the gun had been obliterated. During trial, and contrary to Gardiner’s first ruling, a witness testified that the car was stolen, and the BSO firearms expert testified about the serial numbers. As for an explanation as to the expert’s testimony, the state told Gardiner that it forgot to tell the witness about the court’s ruling. Gardiner denied all motions for mistrial. Case reversed. The testimony about the car and the gun was evidence of uncharged collateral crimes. The jury could have concluded that McCall was guilty of several other crimes other than the possession charge, particularly grand theft of the car.
Santiago v. State, O’Connor case. Cops observe a car in a parking lot flash its lights, prompting another car to approach. The driver of one car gets out, approaches the other car. The cop testifies that he did not know what, if anything changed hands; however, the cop believed that he witnessed a hand-to-hand drug deal. Notably, the dispatch tape revealed the cop saying: "I don’t know if that’s a hand-to-hand or what the story is." Also, different from almost every other case of this sort, the cop testified that this was not a high drug area. With nothing more, the cops only had a bare suspicion, not a founded suspicion of criminal activity. O’Connor was wrong in denying the motion to suppress.
Walsh v. State, Stanton Kaplan case. Case affirmed where Judge Kaplan would only allow Walsh to reserve his right to appeal Kaplan’s denial of a motion to dismiss if he pled open. After granting a continuance, the Defendant announced that it arrived at a plea bargain with the state. Unfortunately the bargain mentioned nothing about an appeal. Without the reservation, Walsh’s attempt to appeal Judge Kaplan’s ruling was dismissed for lack of jurisdiction.
has any PD or private atty ever won a motion to suppress with O'connor?
what a fine feeling to have been vindicated by the 4th! I was the atty who tried that McCall case in front of Gardiner & G'dam was I frustrated having those mistrial motions denied!
So, now, instead of just having declared a mistrial, and then having a retrial ... NOW our judicial system was taxed additionally by having an entire appeal and its attendant costs expended, followed by a new trial.
An aside: too bad Judge Gardiner is so hot or I'd be even more disappointed.
sean conway
Nice work SC. Don, thanks for these updates.
yes, Don, thanks for the update - might've never known a case I tried & lost was subsequently reversed.
Great work Sean (as usual). As an aside, I have a friend who is close to Judge Gardiner. Would you like me to ask him to ask her whether she likes you?
By: Elizabeth Browning
Thank goodness for case law updates! Good work Mr. Conway. I'm sure your re-trial will be a "hot" one. Why they never tell the trial attorney who preserved the record is beyond me. However, love. TRUUUUUUUUUUU LOVE. Is far greater than any vindication from an appellate attorney or the 4th DCA. I would think you would be excited to retry this!
Here is an old poem of mine you can perhaps work into a renewed motion in limine. Sadly, I have lost my Sonnets: Fairweather Firearm and Ode to a Serial Number.
I would suggest my revamped poetry for your ORE TENUS portion of your motion in front of Her Honor. It dovetails perfectly with guns, felons, and scratched serial numbers. I would also reccommend a rose and some Barry White in the background.
After arguing the serial number issues and whatnot, get on one knee Sean, and sing the following on this most joyous of records to be. The Flock Of Seagulls hairstyle is totally in your favor and JAAB better spring for this transcript as a model on how to win a case, preserve a record, and for romance in general.
-------
Oh Her Honor, Judge Gardiner,
How do I love thee? Let me count the ways.
I love thee to the depth and breadth and height
My soul can reach, when feeling out of sight
For the ends of being and ideal grace.
I love thee to the level of every day's
Most quiet need, by sun and candle-light.
I love thee freely, as men strive for right.
I love thee purely, as they turn from praise.
I love thee with the passion put to use
In my old griefs, and with my childhood's faith.
I love thee with a love I seemed to lose
With my lost saints. I love thee with the breath,
Smiles, tears, of all my life; and, if God choose,
I shall but love thee better after death.
The verdict I love begins with NOT.
And, needless to say, I think you're hot.
---
Bill Gelin will be selling tickets for the "Smitten Attorney Trial" to fund his PAC. Nancy Grace is set to moderate this joyous occasion for Court TV and is actually going to presume Sean's client really guilty, rather than very guilty. Sadly, JAAB cannot host this event becasue it is a not for profit organization and has not officially taken a stance on the overtures Sean made. Fortunately, Bill has a friend for you. The judges love him and I'm certain will heed his reccomendations.
Good luck on both fronts Sean.
So Sweeet, the way she bats her eyes when she says "30 years florida state prison". ooh baby...
"Why they never tell the trial attorney who preserved the record is beyond me"
I know, Don's past updates from when I was a pd always noted who the atty was. But the DCA opinions only note the name of the appellate atty.
sconway
Fair-weather Firearm
Fair-weather Firearm, why doth thee intrude?
I’ve told you tis over, yet jealousy led to your brood.
My heart beats for one, and she bears no scratched numbers.
It was fun while it lasted, but you caused trial blunders.
We are star-crossed lovers with no future in sight.
At the re-trial, with sorrow, I fondly bid you goodnight.
For my true love beckons and I have a life to save.
We must move on Firearm. Please be brave.
I’ve confessed my love and come out from my cave.
Two mockingbirds must sing.
Please, don’t do the same thing.
It is you and me not.
As for my client, guilty he is not.
I sing to all, Her Honor is HOT
Goodbye Fair-weather firearm. Our affair is done.
The only overtures you can make is you are simply a gun..
E. Browining
looks like somebody's got a LOT of time on their hands ...
practice hurting a bit lately?
Oh Firearm, how dull it is to pause, to make an end, / To rust unburnished, not to shine in use!