Sept 14 FLW Highlights
RESTITUTION: State v. Castro, 32 Fla. L. Weekly D2107 (Fla. 3d DCA Sept. 14, 2007). The defendant is an employee at a CVS pharmacy and he gets caught stealing men’s cologne. Castro pleas to a third-degree theft charge, and agrees to pay restitution in lieu of the state upping the charge to second-degree theft. The state needed some time to contact Mr. Farley, the person who would provide the proper documentation. After returning to court, the state indicated that it called Mr. Farley and left a message but he failed to respond. The court then sentenced Castro to probation without restitution because Farley “didn’t care.” The court held that there was no clear and convincing reason to not order restitution. It further held that “the victim’s wishes concerning restitution are not relevant.” The case was remanded to hold an evidentiary hearing and if the trial court decides not to award restitution, it must provide detailed reasons on the record for the denial.
DENIAL OF COUNSEL: O’Neal v. State, 32 Fla. L. Weekly D2112 (Fla. 4th DCA Sept. 14, 2007). Backman case. Charged with delivery of cocaine, O’Neal asks Backman to replace his court-appointed counsel. Instead of conducting a Faretta hearing, Backman discharges O’Neal’s counsel and O’Neal was left to represent himself. On appeal, the state made the ludicrous argument that because O’Neal represented himself in a sentencing hearing in an earlier case, he was familiar with the criminal justice system and could represent himself. All this is well and good, but he NEVER asked to go pro-se. Case obviously reversed.
IMPROPER CLOSING ARGUMENT: Wilson v. State, 32 Fla. L. Weekly D2112 (Fla. 4th DCA Sept. 14, 2007). The defense is ID. In closing, Wilson argued that the “victim is not a bad person. And if you find not guilty, you’re not saying he’s a bad person, he’s confused and it’s not his fault.” The prosecutor responded to this argument: “that’s part of the Defense is that you cheapen the victim, you cheapen the crime. . .if you don’t care about the victim, you don’t think he deserves protection under the law, then you find them not guilty.” The court found this argument improper; however, the case was affirmed because the error was harmless.
CHEMICAL CASTRATION – DOUBLE JEOPARDY: Tran v. State, 32 Fla. L. Weekly D2119 (Fla. 4th DCA Sept. 14, 2007). The castration statute requires that before ordering chemical castration, the court must hear evidence that the defendant is a candidate for the treatment and must also decide how long the castration drug must be administered. In this case, the court ordered castration if it is determined that Tran was a good candidate. Four months after the plea, an expert testified that Tran was an acceptable candidate and the court ordered that the castration drug be administered for five years after Tran’s release from prison. Because the mandates of the statute were not met at the sentencing hearing, imposition of the chemical castration four months after the sentencing hearing violated double jeopardy. A court cannot order castration and “reserve” the issues of whether the defendant is a candidate and how long the drug should be administered.
YOUTHFUL OFFENDER: State v. Blackburn, 32 Fla. L. Weekly D2126 (Fla. 4th DCA Sept. 14, 2007). Lebow case. The statute requiring an adjudication of guilt for a person convicted of battery on a person over the age of 65 is trumped by the YO statute that allows a court to adjudicate or withhold adjudication of guilt on any offense sentenced under the YO statute.
DISORDERLY CONDUCT – CONSECUTIVE HABITUAL SENTENCES: Smith v. State, 32 Fla. L. Weekly D2128 (Fla. 2d DCA Sept. 14, 2007). Smith goes into a bank to get a small business loan. When the manager tells him that he has to actually have a small business to get such a loan, Smith starts cursing at the manager and accuses him of stealing his pen. Cops are called and when they arrive and tell Smith to leave or get arrested, he has some choice words for them also. Cops go to arrest him on his bike, and he hits the two cops. DOC conviction is reversed. Even though a crowd gathered to see what was going on, this is not enough to support a DOC conviction. There has to be proof that Smith’s words actually incited people to gather, not that they were just curious about what was happening. Also, consecutive habitual sentences for two batteries on the law enforcement officers are reversed because the two felonies were part of one criminal episode.
DIRECT CRIMINAL CONTEMPT: Woods v. State, 32 Fla. L. Weekly D2132 (Fla. 2d DCA Sept. 14, 2007). At a video magistrate appearance, Woods gets a bit frustrated, and as he was leaving the video room Woods says “shit” out of apparent frustration. This case has two important holding: First, Woods was entitled to counsel. Prior cases have held that a defendant does not have a constitutional right to counsel in a direct criminal setting. This case cites a “lowly rule of criminal procedure,” 3.010, that states that the Florida Rules of Criminal Procedure apply in all criminal proceedings in Florida state courts “including proceedings involving direct and indirect criminal contempt.” Because rule 3.111(b) requires counsel for indigent persons in all prosecutions for offenses punishable by incarceration, the trial court was required to appoint counsel before finding Woods in contempt. (I have a feeling the State will be attempting to review this holding in the Florida Supreme Court.) Also, just uttering “shit” does not constitute contempt unless there is an imminent, not merely a likely, threat to t the administration of justice. Under the facts of this case, saying “shit” while leaving after having a frustrating conversation with the judge did not constitute criminal contempt.
Don - I appreciate the updates, but damn!!! This posting format is very difficult to read. Any shot of going back to the bold print and space between cases?
Thanks.
Former APD
Thanks for fixing.
Don,
Glad to see you back with the updates. So much for "the last FL Law Weekly Update" post.
We appreciate it as always!
From Justice Building Blog
http://www.justicebuilding.blogspot.com/
I have been informed by the Justice Administrative Commission (JAC) that you may experience delays in the payment of your outstanding bills for the next three months. As you are aware, the new 90 day billing rules took effect at the end of August. As a result of that rule, the JAC was swamped with over 4,000 bills arriving at their offices in one day, (in an attempt to beat the new deadline). They believe that it will take them up to three months to catch up on their payments. Once they are caught up, they should be able to return to their regular payment schedule of paying your bills within two weeks.
On a separate note, for the first time since taking over the CAC system in 2004, the JAC has discovered a small group of attorneys that have been billing more than 24 hours in a day. None of the attorneys involved are on the Criminal Registry in Miami-Dade County. (Unfortunately, those involved include a few attorneys from the Civil Dependency Registry in our County.) Please make every effort to keep clear, concise and accurate records if you plan on filing any long form bills. The Screening Committee will not hesitate to take action against any attorney on the Criminal Registry who is found to have submitted any fraudulently billings.
Thank you.
Rick Freedman
FACDL-Miami
http://sdfla.blogspot.com/
Judge Jordan and Jack Thompson
It's hard to keep up with all the Jack Thompson filings in the Judge Jordan case. The latest is that he tried to get Jordan off the case so that he could name him as a defendant. No go -- from Game Politics:
In an order issued late yesterday, Judge Jordan wrote:
In my opinion, the content of the numerous filings submitted by Mr. Thompson
indicate that he has difficulty separating the legal issues in this case from
broader social issues on which he has strongly-held beliefs. Mr. Thompson
unfortunately appears to believe that every act taken against him, and any
judicial ruling adverse to him, are part of a vast conspiracy designed to
silence him and destroy him.
Judge Jordan has scheduled a hearing for October 9th at 9:30 AM on motions by the defendants (the Florida Bar and Judge Dava Tunis, the referee in Thompson’s Bar disciplinary trial) to dismiss the case.
The judge will also hear from Thompson on a motion regarding the “show cause” order issued from the bench following Thompson’s inclusion of gay porn in a docket filing.
And if you can't get enough of this craziness, here's what happened in Thompson's other lawsuit in front of Judge Huck.
Whew.
Game Politics:
http://gamepolitics.com/2007/10/04/judge-in-jack-thompson-case-wont-bow-out-hearing-set-for-oct-9th/
I wonder if Bill is billing the JAC for his walkabouts.
cool! Now I can say "Shit" after Feiner acts like a supreme dickhead & get away with it - as long as I'm walking away and "do not impede admin of justice"
Yeahhh! Fuck! Fuck! Shit! Feiner's a dick!!!
I don't know if I would do that Cartman. At some point you may lose your filter and inadvently disclose you touched weiners with your cousin or pee the bed.
And the system of political patronage winds down much to the continued crying game of its participants.