Appellate Law, Criminal Defense, Criminal Appeals & Criminal Appellate Review and Post Conviction Relief in Florida Courts, Federal District Courts and the 11th Circuit for Criminal Attorneys, Criminal Lawyers & Appellate Lawyers
I may have used a lot of acronyms in the title, but I bet I’ve got your attention, right? It’s Wednesday, which is opinion day in Florida’s 4th DCA. Although most of the opinions in the criminal appeals were in favor of the State, I came across one that’s worth a quick note.
In Cosme v. State, 4D09-1650 and 4D09-1652, the Court reversed a sentence imposed after the defendant was found guilty of violating his probation. Although Cosme had been given the benefit of a YO sentence when he was originally sentenced, after finding him guilty of the VOP, the trial judge revoked his probation and sentenced him to concurrent life sentences on all 3 counts. In so doing, the trial judge apparently listened to the statement of the ASA, who informed the judge that she could sentence Cosme to the maximum sentence of life, “without the constraints of the criminal punishment code.” Slip op., pg. 1.
After Cosme was sentenced, the ASA prepared a scoresheet, showing that Cosme’s lowest permissible sentence was 12.25 years, and handed it to the trial judge. The judge then told the ASA to note on the scoresheet that the Guidelines weren’t applicable because Cosme was originally sentenced as a YO. The trial judge signed the scoresheet, and the case eventually came up on appeal to the 4th DCA.
Notwithstanding the fact that Cosme and his counsel failed to object, the 4th DCA nevertheless reversed because the trial judge pronounced the sentence before being provided a scoresheet, and because both the ASA and the judge stated that the guidelines were not applicable when in fact they were. Slip op., pg. 2. Although the 4th DCA acknowledged that the 6- year cap doesn’t apply to a YO sentence imposed following a substantive VOP, the Court emphasized that reversal was required in Cosme’s case because the record did not conclusively show that the same sentences would have been imposed had the trial judge considered a correct scoresheet before imposing sentence.
Of note, Cosme’s case originates in Broward County. For those of you who practice in Broward, you may want to be on the lookout for this type of sentencing issue the next time you’re representing someone who had been given a YO sentence and then gets charged with violating his or her probation. If the judge fails to consider a properly completed scoresheet before imposing sentence, you may have a good basis for appeal pursuant to Cosme.
This is one of the craziest things I have seen a Judge do in a long time. And I can say, after having been a prosecutor there, that this kind of stuff only happens in Broward County.
I saw the report on CNN HLN this morning, but NBC Miami has the video here. After Joseph Bray was arrested for domestic violence by Plantation Police, he was brought before Judge John “Jay” Hurley for his first appearance. Although bonds are normally entered at first appearance hearings, Judge Hurley deviated from the standard procedures and instead ordered Mr. Bray, in lieu of bond, to buy his wife, Sonja, a card, followed by dinner at Red Lobster and bowling. Judge Hurley thought the order was appropriate because the domestic violence arrest stemmed from the fact that Mr. Bray forgot to wish Sonja a happy birthday, Mr. Bray’s apparent lack of criminal history, and because Sonja, who is heard on tape, said she wanted Mr. Bray to come home.
I am really torn about this. On the one hand, sometimes Judges need to be free to craft sentences or orders to fit the circumstances of criminal cases. And the criminal defense lawyer in me believes that people charged with a crime should not be punished unnecessarily, especially if there are mitigating circumstances. On the other hand, as a woman, I find it unsettling that a Judge would laugh off the whole incident, and think that dinner and bowling would fix this. Ok, I know that the Judge did mention counseling on the tape also, but come on. Can a card, dinner and bowling really make up for the fact that the man’s hands were wrapped around his wife’s neck? Instead of getting cute, I tend to think that the Judge should have just ordered Mr. Bray to post bond like everyone else.
Yes, that’s right. The Attorney General of Mississippi called out-going Governor Haley Barbour Boss Hogg! (I’m probably dating myself here, but many of you might remember that weasel in the white suit from the Dukes of Hazzard show back in the day). Well, now CNN reports that the Mississippi Attorney General has vowed to chase down all the “pardoned” people and return them back to prison. Never mind the fact that the releasees may not have committed any new crimes (at least not yet). All I can say is that this is even more crazy than any of the stuff that happens in Broward County!
The criminal defense attorneys of South Florida are well aware that certain judges, none of whom will be named here, do not tolerate tardiness. Once a lawyer has been practicing long enough, he or she will just know which Judges are sticklers for promptness. I remember when I was a prosecutor in Broward, one Judge actually had her bailiff handcuff a fellow prosecutor to a chair in the courtroom after he was only a few minutes late! A case decided by the 4th DCA just before New Year’s Eve reminded me of those good ole days I spent in the Broward County courthouse . . .
In the case of Kimothy Marquez Massie v. Bradshaw, 4D11-4714, Massie made the unfortunate mistake of being a mere 22 minutes late to court. The Judge would have none of it, and immediately took Massie into custody. Three days later, the court held a bond hearing, and determined that no conditions of bond would assure that Massie would not commit future crimes, or that he would appear for future court dates. On appeal, the 4th DCA reversed, finding that the trial court erred for two reasons. First, the trial court considered a criminal charge in Dade County, even though it occurred prior to the criminal incident in Massie’s case. Second, and most importantly, the 4th DCA noted that Massie had not ever previously failed to appear or been tardy for a court appearance in his case.
While I am glad that Massie prevailed in his appeal, the morale of this story is clear: don’t be late for court!
As many criminal defense attorneys in South Florida are aware, the reality t.v. show called Police Women of Broward County began wrangling with the Broward Public Defender’s Office earlier this summer. As noted by a Miami Herald report dated July 20, 2011, all the trouble began when one of the Assistant Public Defenders sought to obtain copies of two employment contracts executed by two of the stars of the show. Apparently, the Assistant Public Defender represents several individuals who were arrested while being filmed for the reality t.v. show, and he is seeking to get copies of the contracts to determine whether the officers had any hidden conflicting interests.
After the State Attorney’s Office failed to turn over copies of the contracts to the defense as part of their discovery, the defense started asking questions. Why weren’t they produced? Where are the contracts? In response, the Broward State Attorney’s Office stated that although they have no objection to the contracts being produced, they didn’t have access to the contracts–the television production company has them.
To the surprise of many, the television production company has refused to turn the contracts over, claiming they contain sensitive competitive information. The defense has continued to press for their release, and now, the prosecution has joined the defense in an attempt to get copies of the contracts for the Police Women who made the arrests in question. The Sun Sentinel reports that the Broward State Attorney’s Office has issued subpoenas to the television production company, and that, in response, the television company has filed a motion to quash the subpoenas.
Both the State Attorney and defense now seek to discover whether the Police Women stars have any financial incentives to make arrests. Ultimately, the issue will be decided by a Judge. If the Judge determines that the contracts contain information that is relevant to the defense, then the Defendants’ rights to a fair trial will have to take precedence over the television company’s claim of trade secret information.
It’s not very often that we hear about the prosecution and defense working together to see that basic constitutional rights are being protected. It is great news for this case, but it’s too bad we don’t see more news reports like this.
Since it’s the weekend, I thought I’d post something light.
An article in the Sun Sentinel reports that Willie David Rice recently appeared in Federal court to enter a plea to the charge of possession of a firearm by a convicted felon. Apparently, Rice had been arrested during a raid on a brothel in Broward County, Florida, named the Boom Boom Room. During the plea colloquy, Judge Dimitrouleas asked Rice to state his line of work. Rice’s response? “Criminal.” The Judge said that in his 22 years on the bench, he has never heard that answer. Give that man a few points for honesty!
You may remember that about a month ago, Ryan LeVin was sentenced to house arrest in Broward County after hitting two British businessmen while driving his Porsche in Fort Lauderdale. Well, the Sun Sentinel reports that LeVin is now in custody in the State of Illinois after his parole was revoked for an Illinois offense. He is accused of violating the terms of his Illinois parole by leaving the State without permission, when he came to Florida to answer the charges of vehicular homicide. LeVin said he did not tell his probation officer that he was leaving Illinois because he wanted to post bond in Florida, and planned to return to Illinois to finish his parole there. In revoking his parole, the board was unsympathetic to LeVin’s claims. The length of his incarceration is unknown.