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State of Florida v. Ransom Louis Collins
SC05-108
FINAL CASE OF THE MORNING
AND OF THE WEEK, IS STATE OF
FLORIDA VERSUS RANSOM
COLLINS.,,
>> GOOD MORNING A BUY NAME
RONALD NAPOLITANO ASSISTANT
ATTORNEY GENERAL, I
REPRESENT THE NAERT THIS
CASE THE STATE OF FLORIDA.
GIVING A BRIEF HISTORY OF
THE CASE, THE DEFENDANT WAS
CONVICTED OF ARMED ROBBERY,
AND AT THE TIME HE ENTERED
HIS PLEA AN OPEN PLEA NO
NEGOTIATION, WHAT THE
APPROPRIATE SENTENCE WOULD
BE.
THE DEFENSE COUNSEL STATED
THAT THE DEFENDANT WAS A HAB
ITSUAL FELONY OFFENDER.
>> COUNSEL, LET ME GET RIGHT
TO THE ISSUE HERE, BECAUSE
IT HAS BEEN STIPULATED THAT
THE EVIDENCE WAS INSUF,
BELOW, INSUFFICIENT.
>> THAT IS CORRECT.
>> SO THE ISSUE HERE IS
WHETHER WHEN THE STATE
PRESENTS INSUFFICIENT
EVIDENCE AND AT SENTENCING
IT GETS A SECOND BITE AT THE
APPLE.
>> NOT EXACTLY, BECAUSE WHAT
HAPPENED WAS THE COURT
OVERRULED THE OBJECTION, HAD
THE COURT SUSTAINED THE
OBJECTION, THE STATE VERY
WELL COULD HAVE HAD OTHER
EVIDENCE TO PRESENT AT THAT
HEARING, TO ESTABLISH THOSE
SEQUENTIAL CONVICTIONS.
>> THEY WOULD HAVE HAD TO,
BECAUSE THE OBCORRECTION WAS
SUSTAINED, BUT LEAST THE
STATE HAD NOTICE WHEN IT WAS
OBJECTION THE STATE HAD
NOTICE, THAT THERE WAS AN
ISSUE.
THE QUESTION IS ON APPEAL,
WHEN THE DCA WAS SAID WAS
INSUFFICIENT EVIDENCE I
REALIZE IT IS NOT A DOUBLE
JEOPARDY ISSUE WAS BECAUSE
IT WASN'T IN THE GUILT PHASE
BUT WHAT IN WHAT OTHER AREA
OF LAW WHEN A COURT REVERSES
SOMETHING, ON APPEAL,
BECAUSE OF INSUFFICIENT
EVIDENCE, DOES THE COURT
THEN GIVE THE LITIGANT
ANOTHER CHANCE TO PROVIDE
THE EVIDENCE?
IN SEVERAL CASES, SEEMS TO
ME CIVIL CASES SEEMS NO
DOUBLE JEOPARDY ISSUE, AND
YET WHEN A CASE COME UP ON
APPEAL, AND THE PLAINTIFF
DID NOT PROVE HIS CASE,
BECAUSE HE PREVENTED PRESENT
INSUFFICIENT EVIDENCE,
SHOULD HAVE BEEN DIRECTED
VERDICT, WE DON'T ZBI BACK
AND TRY IT AGAIN.
GOOD LUCK.
>> BECAUSE WE ARE NOT
DEALING WITH GUILT OR
INNOCENCE, OR WHETHER THE
PERSON IS LIABLE OR NOT
LIABLE WE'RE TALKING ABOUT
SENTENCE THEING ISSUES HERE
AND SENTENCING THIS COURT
HAS HELD IN THE UNITED
STATES SUPREME COURT HAS
HELD THERE IS NO FINALITY OR
CONSTITUTIONAL FINALITY, TO
SENTENCING QUESTIONS.
IF THE CASE IS REIF A
SENTENCE IS -- ON APPEAL,
THREE OF THE DISTRICT COURTS
HAVE SAID THE STATE CAN
AGAIN SEEK TO ESTABLISH --
>> I HAVE READ ALL THE CASES
THEY DON'T SAY WHY THEY ARE
VERY CONCLUSARY IN --
>> -- FOR A SECOND DISTRICT
COURT OF APPEALS SAY WHY.
>> SO WHAT'S THE GRACE
SHOULD WE ALLOW THE STATE TO
GO BACK AND TRY AGAIN AND
WHAT HAPPENS IF IT FAILS THE
SECOND TIME, DOES IT GET A
THIRD AND FOURTH BITE AT THE
APEL.
>> NO THE STATE DOESN'T GET
A THIRD AND FOURTH TRY BUT
THE PROBLEM HERE AND WE HAVE
FOCUSING ON PARTICULARLY, ON
THIS PARTICULAR CASE, IS
THAT THE COURT THE TRIAL
COURT OVERRULED THE OBJECTION.
HAD THE COURT TRIAL COURT
SUSTAINED THE OBJECTION, THE
STATE WOULD HAVE HAD THE
OPPORTUNITY THEN AND THERE
TO REMEDY THE SITUATION.
>> WELL THE STATE IS FULLY
AWARE THAT THE DEFENDANT MAY
HAVE THE RIGHT TO APPEAL.
THE TRIAL COURT RULING.
AND THAT THE TRIAL COURT MAY
OVERTURN IF THE DEFENDANT
TURNS OUT TO BE CORRECT GO.
BACK TO JUSTICE QUIN FERRO'
QUESTION IF YOU WOULD HE HE
BROADLY ASKED THAT IN TERMS
OF EXTENDING TO IT CIVIL
PROCEEDINGS, AS WELL AS
CRIMINAL.
NOW, IT IS TRUE FOR THAT
DOUBLE JEOPARDY PURPOSES
WHATEVER BUT IMAGINE A
SITUATION FOR INSTANCE WHERE,
THERE IS -- A FACTOR
CIRCUMSTANCES, THAT ALLOWS A
JUDGE TO AGGRAVATE A
SENTENCE.
MAYBE IT IS POSSESSION OF A
WEAPON, OR WHATEVER.
AND THE STATE DOESN'T PROVE
THAT UP.
BUT THE JUDGE GOES AHEAD AND
AFWRO GAITS IT ANYWAY NOW ON
APPEAL THERE IS A RULING
THAT -- THAT WAS ERROR
EVIDENCE TO THE STATE WAS
INSUFFICIENT IN TERMS OF
AGGRAVATING IT BY PROVING
THE WEAPON OR WHATEVER IT
WAS.
AND --
>> BUT IN THE FACTUAL
SITUATION, YOU ARE GIVING ME,
WAS THERE AN OBJECTION.
AT THE TIME.
LET'S DEAL DIRECTLY WHAT YOU
ARE SAYING IS THAT ANY TIME
THE TRIAL COURT, ERRONEOUSLY
ALLOWS THE ADMISSION OF SOME
PROOF BY THE STATE THE STATE
IN OTHER WORDS THAT IS THE
RULE THAT SHOULD COME OUT OF
THIS CASE.
THAT IF THE JUDGE ERRONEOUSLY
ALLOWS THE STATE TO PRESENT
EVIDENCE IT SHOULDN'T HAVE
BEEN ALLOWED TO PRESENT,
THAT IN THAT CASE, THE STATE
DOES GET A SECOND BITE AT
THE APPLE BUT IN OTHER CASES
NO.
IS THAT THE RULE THAT YOU
ARE ASKING US TO ARTICULATE.
>> NO.
>> WELL, I'M HAVING TROUBLE,
BECAUSE -- REPETITIONED
SEVERAL TIMES -- ENTITLED TO
THE SECOND BITE IS BECAUSE
THE TRIAL JUDGE OVERRULED
THE OBJECTION TO THE STATE'S
EVIDENCE.
SO IT IS THAT THE RULE YOU
ARE ARGUING FOR OR NOT?
>> WHAT I'M IS IS THAT IF
THE COURT HAD SUSTAINED THE
OBJECTION AT THAT HEARING,
LIKE -- RIGHT THEN AND THERE,
THE STATE COULD HAVE GONE
CONTINUED TO GO FORWARD, AND
PRODUCE SUFFICIENT EVIDENCE,
WHETHER IT WOULD HAVE OR
NOT, I DON'T KNOW.
BUT I WILL I WOULD LIKE TO
POINT OUT CERTAIN FACTS IN
THIS CASE.
THE QUESTION OF COURSE IS
SEQUENTIAL CONVICTIONS.
STATE -- THE -- WAS OBJECTED
IS THAT ORDERS PROBATION,
NOW, RICHARD -- HAS
SPECIFICALLY HELD EVNL --
STAYS REGARDLESS OF WHETHER
THERE IS A WITHHOLD OF
ADJUDICATION, OR NOT,
PROBATION OR COMMUNITY
CONTROL CONSTITUTES A PRIOR
CONVICTION SO YOU HAVE THE
GATES OF THE ORDERS OF
PROBATION.
IN TWO CASES.
BUT IN THE OTHER CASES WHAT
YOU HAVE ARE RECOVATIONS YOU
HAVE -- SENTENCES REVOCATIONS
OF PROBATION SO -- WAS
ORIGINALLY PUT PLACED ON
PROBATION.
ALL OF THE CASES YOU HAVE
FINGERPRINTS.
AND THE FINGERPRINT CARDS OR
THE PRINTS USED TO ESTABLISH
THOSE -- THE ORDER OF
PROBATION AND JUDGMENTS AND
SENTENCES REALLY ARE
FINGERPRINT CARDS THAT ARE
ATTACHED TO THE LAST PAGE OF
JUDGMENTS.
AND IF YOU LOOK AT THE
RECORD, IN THIS CASE, FOR
INSTANCE, IN THE FIRST CASE
RELIED UPON THE STATE 851047,
THE PROBATION WAS REVOKED
AND HE WAS SENTENCED TO
IMPRISONMENT ON OCTOBER 28th
BUT THE QUESTION IS WHEN WAS
HE ORIGINALLY PLACED ON
PROBATION.
>> BUT ALL OF THAT MR. --
>> EXCUSE ME, MR. NAPOLITANO.
>> I'M SORRY.
>> ALL OF THAT IS FINE, WHAT
THE STATE HAD.
BUT OBVIOUSLY -- BELIEVE THE
STATE DID NOT HAVE SOMETHING
-- PROVED UP THE WHOLE
SENTENCE; CORRECT?
>> AND SO -- ARE YOU ASKING --
>> WHAT YOU ARE ASKING US,
THEN, IS THAT IF THE STATE
COMES TO A SENTENCING
HEARING, NOT PREPARED TO
PROVE WHAT THE SENTENCE
SHOULD BE AND IT IS REVERSED
ON APPEAL.
AND THE STATE GETS ANOTHER
OPPORTUNITY TO COME TO A
SENTENCING HEARING, AND
PROVE UP WHAT THEY DIDN'T
PROVE UP BEFORE.
IT I MEAN ISN'T THAT IN
ESSENCE WHAT WOULD HAPPEN?
WHAT -- WHERE WOULD YOU DRAW
THE LINE?
AT ANY TIME THE STATE DID
NOT PROVE UP ITS CASE AND
THE DEFENDANT GOT A REVERSAL
OF THE SENTENCEING THE STATE
GETS REPROVE --
>> ACCORDING TO FOURTH
DISTRICT COURT OF APPEAL
TIME YOU HAVE A REVERSAL OF
A COHN SENTENCE IN QUESTION
YOU HAVE A DE NOVO HEARING
IF YOU WANT TO LOOK AT IT AS
DE NOVO HEARING WE ARE BACK
TO SQUARE ONE AND ANYTHING
CAN HAPPEN AT THE AT THE --
>> SO YOU ARE SAYING THAT
ANY TIME A DEFENDANT GETS --
OF SENTENCING HE HAS TO BE --
>> -- BRING IN THE PROOF
THAT THEY DID NOT HAVE
BEFORE?
>> -- YES, I WOULD SUBMIT
THAT WHY DO YOU NEED DE NOVO
HEARING IF YOU JUST.
>> SORRY.
>> IF YOU STRIKE THE
HABITUAL --
>> I'M SORRY EXCUSE ME?
SAY THAT AGAIN?
>> IF THE ISSUE IS THEY ARE
FINDING AS THE EVIDENCE WAS
INSUFFICIENT, THEN, AREN'T
WE JUST TALKING ABOUT
STRIKING THAT FINDING FROM
THE SENTENCING, AND HAVING
THE SENTENCE ON THEWISE
APPROVEED?
>> WELL, THAT COULDN'T
HAPPEN IN THIS CASE, BECAUSE
HE WAS SENTENCED TO 20 YEARS
IN -- IMPRISONMENT AS
HABITUAL FELONY OFFENDFER
THE HABITUAL FELONY OFFENDER
DESIGNATION WAS REMOVED THE
MAXIMUM SENTENCE HE COULD
GET WOULD BE 15 YEARSED FOR
SECOND DEGREE FELONY UNARMED
ROBBERY.
WHY IF -- NEEDS TO HAVE THAT
SENTENCE REDUCED.
OKAY.
WHY SHOULD THE STATE GET THE
ADDITIONAL BENEFIT OF GOING
BACK ON THE HABITUAL OFFENDER
SENTENCING ISSUE?
--
>> OVERRULING THE OBJECTION.
OF THATING HERE WE'RE NOT
TALKING ABOUT A SECOND BITE
WE ARE TALKING ABOUT THE
ORIGINAL HEARING THE FIRST
BITE SO TO SPEAK.
>> SO THAT IS THE THREAD YOU
FEEL DISTINGUISHS THIS CASE
FROM SECOND BITES.
>> WHAT WOULD BE THE POINT
OF A DEFENDANT?
EVEN -- RAISING A SENTENCING
ISSUE, IF -- HE ALWAYS CAN
GO BACK AND REDO IT?
>> THEN HOW DO YOU
CHARACTERIZE THE DIFFERENCE
BETWEEN WHEN THERE IS AN
OBJECTION AND WHEN THERE IS
NOT AN OBJECT SPLUN.
>> MY QUESTION --
>> I'M SORRY.
>> YOU ASKED THE QUESTION.
-- WHAT WOULD BE THE WHY
WOULD A DEFENDANT APPEAL HIS
SENTENCE AND THEN THE STATE
THEN GO BACK AND STILL DO IT
GIVEN THE SAME THING,
BECAUSE THE STATE GETS AN
OPPORTUNITY TO PROVE WHAT
THEY DIDN'T PROVE BEFORE?
>> I'M HAVING A REAL PROBLEM
UNDERSTANDING THAT KIND OF
SITUATION WE WOULD BE
SANCTIONING REALLY ISN'T ANY
REAL SANCTION FOR THE STATE,
IF THE DEFENDANT APPEALS THE
SENTENCE.
>> THE THE PROBLEM IS YOU
WANT TO GET A LEGAL SENTENCE.
ON REMAPD WHY SHOULDN'T THE
STATE HAVE AN OPPORTUNITY TO
PRESENT THE EVIDENCE TO
AFFECT THE SAME SENTENCE
THAT WAS ORIGINALLY IMPOSEED?
>> BUT WHAT WE ARE TALKING
ABOUT --
>> THE QUESTION IS IS THAT
AFTER AN APPEAL HAS BEEN
PERFECTED AND A COURT HAS
FOUND THAT THERE IS
INSUFFICIENT EVIDENCE, WHY,
WHY SHOULD THEY BE GIVEN A
SEND CHANCE?
NOT YOUR QUESTION BACK TO
HER.
COULD YOU PLEASE ADDRESS THE
QUESTION THAT JUSTICE HAS
POSE.
>> I CAN'T ADDRESS IT.
UNLESS WE ARE LOOKING AT THE
SPECIFIC SITUATION ON THIS
CASE.
THE SPECIFIC SITUATION IN
THIS CASE IS THAT THE STATE
DID NOT HAVE THE -- HAD THE
OBJECTION BEEN SUSTAINED THE
STATE WOULD HAVE HAD THE
OPPORTUNITY RIGHT THEN AND
THERE TO CORRECT THE
SITUATION.
>> THAT IS RESPONSE TO THAT.
>> I UNDERSTAND A LONG LIST
OF CASE LAW THAT SAYS A NEW
SENTENCING IS A DE NOVO
PROCEEDING, I HAVEN'T FOUND
ANY CASES AND MAYBE CAN YOU
CITE TO ME ONE, WHY IT WAS
REVERSED BECAUSE OF
INSUFFICIENT EVIDENCE, AND
THEN THE STATE IS ABLE TO
INTRODUCE THAT ON THAT SAME
ISSUE WHERE IT DIDN'T
INTRODUCE IT BEFORE.
>> THERE ARE NUMEROUS CASES
WHETHER -- WHERE THE
SENTENCE HAS BEEN FOR
INSTANCE IN POST CONVICTION
ACTIONS 3800 APPEALS.
>> I'M TALKING ABOUT WHERE
EVIDENCE WAS DETERMINED ON
APPEAL.
TO BE INSUFFICIENT NOT POST
CONVICTION PROCEEDING FOR
INEFFECTIVE ASSISTANCE
ANYTHING LIKE THAT WHERE IT
HAS BEEN DETERMINED TO BE
INSUFFICIENT YOU GO BACK FOR
A NEW SENTENCING, AND THEN
THE STATE IS ABLE TO PREVENT
PRESENT NEW EVIDENCE ON THAT
ISSUE THAT WAS INSUFFICIENT
IN THE FIRST SENTENCING.
>> WELL IN A 3800 MOTION.
WHEN YOU ARE ATTACKING THE
LEGALITY OF A HABITUAL
FELONY OFFENDER SENTENCE YOU
A-- YOU ARE ATTACKING THE
LEGALITY OF THE QUESTION OF
PROOF THE STATE DID NOT
ESTABLISH THE -- SEQUENTIAL
CONVICTIONS, IN 3800 SAME
OBJECTION IS MADE.
ON REMAND THE STATE AND ALL
DISTRICT COURTS AGREE THE
STATE GETS ANOTHER
OPPORTUNITY TO ESTABLISH.
>> LET ME ASK YOU THIS, AS
FAR AS WHETHER THIS IS A
DISTINCTION WHETHER IT IS
MEANINGFUL.
THIS IS ONE OF THESE PACE --
CASES WHERE THE ISSUE IS
CONVICTIONS OCCUR ON THE
SAME DAY OR WERE THEY
SEPARATE DAYS?
>> YES.
>> AND THAT WAS THE OBJECTION
THAT THE DEFENDANT MADE.
>> YES.
>> ALL RIGHT.
>> WHAT WAS JUST CLARIFY
WHAT WAS THE STATE'S
RESPONSE?
WAS THAT IT AS MATTER OF LAW
THAT SENTENCE FIVE THEM ON
THE SAME DAY WERE -- WOULD
MEET THE STATUTE?
>> THE STATE'S POSITION WAS
THAT YOU HAD DIFFERENT
SENTENCES FROM DIFFERENT
CASES.
>> SO THEY WERE ACTUALLY
ARGUING AS MATTER OF LAW
THAT EVEN THOUGH THEY
OCCURRED ON THE SAME DAY.
>> THE SENTENCEING OCCURRED-THE
SAME DAY.
>> SAME DAY THAT THEY YOU
COULD QUALIFY AS SEPARATE
OFFENSES.
CORRECT.
>> BECAUSE THERE WERE
SEPARATE CASES.
>> AND THE JUDGE ACCEPTED
THAT ARGUMENT, ON AS ON THE
LAW.
>> THE COURT ACCEPTED THAT
ARGUMENT AND ALSO THE FACT --
>> WELL, THE REASON I'M
ASKING THIS, THIS IS A
FRIENDLY QUESTION.
IS BECAUSE WE'VE BEEN
JUSTICE SPEAKING ABOUT
INSUFFICIENT EVIDENCE I'M
WONDERING HERE WHERE THE
ISSUE IS THAT LEGALLY, THE
JUDGE WAS INCORRECT MY
QUESTION OUTLOUD IS TO YOURS
IS WHY SHOULDN'T THE STATE
BE ALLOWED TO GO BACK AND
ESTABLISH OTHER QUALIFYING
FELONIES?
I'M NOT SURE I SEE THE
DISTINCTION BETWEEN WHERE
THE ARGUMENT IS RAISED AND
NOT RAISED.
IF THE JUDGE BOUGHT THE IDEA
THAT IT IS A MATTER OF
MATTER OF LAW THAT THESE ARE
SUFFICIENT.
SO I DON'T KNOW IF WE HAVE
ANOTHER CASE WHERE
SUFFICIENCY OF THE EVIDENCE
WASN'T A MATTER OF LAW BUT
FACTUALLY INSUFFICIENT
WHETHER THAT IS DISTINCTION
WOULD YOU POSIT THAT THAT
COULD BE A DISTINCTION
BETWEEN --
>> YES.
>> ERRORS IN LAW AND ERRORS
IN FACT OR INSUFFICIENCY IN
LAW AND INSUFFICIENCY IN
FACT.
>> THE COURT WAS A -- COURT
BASING THE DECISION ON HE
RON --US ASSUMPTION OF LAW
DID THE STATE ARGUE FOR
THESE PURPOSES, THAT A THAT
SENTENCING ON THE STA SAME
DATE IN DIFFERENT
PROCEEDINGS WAS SUF TO
COMPLY WITH THE STATUTE?
>> DID YOU HAVE ARGUMENT
>> I BELIEVE THAT CAME UP AT
THE SENTENCING HEARING.
>> WE GO BACK TO THE POINT.
IT IS A FACTUAL MATTER
BECAUSE YOU CONCEDED AT THE
COURT OF APPEAL LEVEL THAT
THE DOCUMENTS PRESENTED TO
THE TRIAL COURT FAILED
PRECLUDE THE POSSIBILITY
THAT ALL OF COLLINS' PRIOR
FELONY OFFENSES WERE
ORIGINALLY SENTENCED ON THE
SAME DATE.
>> CORRECT.
YOU DIDN'T ARGUE THAT WELL
IT COULD BE ON THE SAME DATE
BUT A DIFFERENT PROCEEDING
THAT WOULD COMPLY WITH THE
STATUTE.
>> WELL THAT'S TRUE I DIDN'T
MAKE IS THAT POINT.
>> SO THEN I'M CONFUSED SO
WHAT WAS THE STATE'S
ARGUMENT BEFORE THE TRIAL
JUDGE?
AS TO WHY WERE THOSE
QUALIFYING FELONIES?
>> BECAUSE THEY WERE ALL --
THE CONVICTIONS WERE BASED
UPON SEPARATE CASES.
>> BUT YOU NOW --
>> OFFENSES FROM --
DIFFERENT CASES ON THE SAME
DAY.
>> SO THE STATE WAS UNDER A
MISAPPREHENSION AS TO THE
LAW.
>> YES.
>> JUSTICE --
>> -- PLEASE ANSWER
CONCISELY YOU ARE IN
REBUTTAL.
>> WHY DOESN'T CAMERON
VERSUS STATE OUT OF -- AND
02 ANSWER THE QUESTIONS SOME
OF THE OTHER JUSTICES ARE
ASKING IN THAT CASE THE
DEFENSE COUNSEL OBJECTED TO
HABITUALIZATION CONTENDING
NO EVIDENCE TO ESTABLISH SA
PARTICULAR RELEASE DATE?
ON APPEAL THE STATE CONCEDED
THAT THE PROSECUTORS
UNSUBESTABLISHATED COMMENTS
WERE NOT ENOUGH AND THEN
THEY HELD THAT ON
RESENTENCING THE STATE WOULD
BE ENTITLED TO PRESENT THE
PROOF.
>> I'M NOT SURE I UNDERSTAND
YOUR QUESTION.
>>.
>> THE CAMERON CASE
SPECIFICALLY SUPPORTS MY
POINT OF VIEW ON THIS MATTER.
>> I THOUGHT WHAT USE TIS
CAN TERO WAS ASKING IS THERE
CASE LAW SUPPORTING YOUR
POSITION ISN'T CAMERON
ANSWERING THE QUESTION HE IS
ASKING OR AM I CONFUSED.
>> I SAID IN A IN BRIEF FROM
THE VERY BEGINNING THE THREE
DISTROITH COURTS OF APPEAL
HAVE ALL RULED THE FIRST THE
FOURTH,, AND THE FIFTH HAVE
ALL RULED THAT EVEN WHEN
OBJECTION WAS MADE STATE HAS
THE OPPORTUNITY ON REMAND TO
PROVE UP THE FACTUAL MATTERS
AGAIN.
>> YOU'RE INTO YOUR REBUTTAL
SUBSTANTIALLY.
>> THANK YOU.,,
>> PULL THAT MICROPHONE FUN
TO.
>> GOOD MORNING MY NAME IS
TOSHA COHEN HERE GR BARTZ TO
REPRESENT MR. ALCOHOL
COLLINS WE'VE GOTEN INTO
WHAT I BELIEVE THE CORE OF
THE CASE THAT IS REMEDY IS
IN DISPUTE THE SECOND
DISTRICT COURT OF APPEAL
BELIEVES WE SHOULD STAKE
THIS BACK TO THE TRIAL LEVEL,
AND IMPOSE A GUIDELINE
SENTENCE, NOT GIVE THEM A
MULLIGAN SHOT OR A DO-OVER
BUT TAKE IT BACK.
>> LET ME ASK YOU THIS.
>> YES?
>> DO YOU AGREE WITH YOUR
OPPONENT'S STATEMENT THAT IF
THE TRIAL COURT HAD
SUSTAINED THE OBJECTION THAT
THAT THE POINT THE STATE
WOULD HAVE BEEN ABLE TO
CORRECT OFFER WHATEVER WAS
NECESSARY IF IT HAD IT TO
CORRECT THE SFLOB WELL, I
ADMIRE THE CREATIVITY OF
THAT SOLUTION, I DON'T
BELIEVE IT IS CONSISTENT
WITH ON THE YEARS OF LAW.
>> WHY NOT?
IF THE JUDGE OVERRULED
OBJECTION IN ON THE -- OTHER
YAIRS FOR FINDING NOT
SUFFICIENT EVIDENCE IN OTHER
YAIRS SUCH AS MOTION TO
SUPPRESS AND THEY RULE THAT
THERE WASN'T ENOUGH THE
STATE WANTS TO GET CHANCE
THEN TO GO GO BACK JUST
BECAUSE THE RULE OF THE
COURT WAS WRONG AT THAT
POINT, OR IF THE JUDGE ROVE
-- OVERTROULD JUDGMENT OF
ACQUITTAL DOESN'T MEAN
EVIDENCE WAS SUFFICIENT
DOESN'T MEAN STATE GETS TO
GO BACK.
>> DO YOU HAVE A SENTENCEING
CASE THAT SAYS THAT THAT AT
THE TRIAL LEVEL, FORGET
ABOUT WHERE ON APPEAL, AT
THE TRIAL LEVEL, IF THE
COURT SUSTAINS THE DEFENSE
OBJECTION, TO HABITUAL
SENTENCE, ON THE BASIS THAT
THE STATE HASN'T LAID THE
PREDICATE FOR IT, THAT THE
THAT IS IT, NO CHANCE IT IS
-- THE -- CAN'T REOPEN THE
MATTER IT IS JUST DONE?
>> OTHER THAN THE LAW IN
THIS CASE I HAVEN'T SEEN
ANYTHING SPECIFIC
>> LET ME FOLLOW UP JIS TIS
WELTS WHAT IF AT THE TIME
THE JUDGE MAKES THAT RULING
THE STATE SAYS UNHONOR WE
CONTINUE THE SENTENCING
HEARING FOR ANOTHER DATE
THERE ARE PLENTY OF CASES
WHERE YOU HAVE, JUDGMENTS
FROM OUT OF STATE, AND GETS
VERY DIFFICULT TO GET
CERTIFIED COPIES OF THE
JUDGMENTS WHATEVER AND LET'S
SAY THEY HAVE A COPY OF WHAT
WASN'T CERTIFIED THERE IS AN
OBJECTION SO, IT WAS
INSUFFICIENT, AND THE
DEFENDANT MAKES THIS OBJECTION
THE COURT OVERRULES IT
COULDN'T THE STATE SAY YOUR
HONOR, WE POSTPONE HEARING
TO ALLOW ME TO --
>> ABSOLUTELY THE STATE
COULD HAVE ASKED TO POSTPONE
PART OF THE SENTENCING TO
GET THE PROPER PAPERWORK.
BUT THE FACT THAT THE COURT
MADE AN INCORRECT JUDGMENT
ON THE SUFFICIENT SEE, DOES
NOT A RELIEVE THE STATE OF
BUVD PROOF.
>> I HAVE A PROBLEM THEN
BETWEEN THE SITUATION, WHERE
A TRIAL COURT OVERRULES AN
OBJECTION THAT A DEFENDANT
MAKES, AND ONE WHERE NO
OBJECTION IS MADE.
YOU I PRESUME THAT YOU AGREE
THAT WE WHERE NOBODY
EJECTION IS MADE THERE AN
CAN BE RESENTENCING.
>> I WON'T PROMISE THAT I
WILL NEVER COME BEFORE YOU
-- BUT --
>> BUT I WON'T PROMISE THAT
BECAUSE I'M NOT POSITIVE
WILL THERE SHOULD BE
DISTINCTION.
>> THAT IS WHAT WE ARE
SITTING HERE WITH THAT
DISTINCTION THAT IS WHAT I'M
HAVING TROUBLE WITH THERE IS
NOT A DOUBLE JEOPARDY ISSUE
YOU AGREE WITH THAT.
>> RIGHT IS SOMETHING THAT
SOMEWHAT TO DOUBLE JEB DEE
ISSUE THOUGH BECAUSE WE ARE
TALK WHAT I CALL -- WILL OF
JUSTICE WHERE OF THE STATE
UNLIMIT REED SOURCES COMING
AND BEING ABLE TO DO THIS
OVER AND OVER AGAIN.
>> I APPRECIATE THIS ALL
THESE ANALOGIES, TO
MULLIGANS AND EVERYTHING, I
JUST WANT TO STICK THOUGH
WITH THE FACT THAT WHAT WE
DO WHEN THERE ARE SENTENCING
ERRORS, OR ERRORS DURING THE
SENTENCING PROCEEDINGS,
YOU'VE GOT A CASE LIKE
MURRAY VERSUS STATE OUT OF
THIS COURT, WHERE THE
DEFENDANT ARGUED THAT HE
COULD NOT BE RENDERED COULD
NOT BE SENTENCE THE -- AS
HABITUAL OFFENDER BECAUSE
THE TRIAL COURT FAILED TO
MAKE SPECIFIC FINDINGS THAT
MURRAY'S KATE CONVICT HAD
NOT BEEN PARDONED OR SET
ASIDE IT WAS REMANDED, WE
WENT AHEAD AND SAID THAT WE
DISTINGUISHED BETWEEN CASES
WHERE YOU ARE NOT GOING TO
GIVE THE TRIAL COURT SORT OF
A CHANCE TO FIGURE OUT OTHER
DEPARTURE REASONS, VERSUS
THE SITUATION WHERE YOU CAN
GO BACK AND THE STATE CAN
ESTABLISH THIS OR THE TRIAL
JUDGE CAN MAKE THESE
ADDITIONAL FINDINGS, IF THE
JUDGE HASN'T AND WE DO THIS
A LOT REALLY, IN DEATH
SENTENCE WHERE WE GIVE THE
JUDGE SOMETHING WENT WRONG
AND WE SEND IT BACK FOR THE
JUDGE TO MAKE ADDITIONAL
FINDINGS.
SO I DON'T SEE THIS AS BEING
ALL THAT UNIQUE, SITUATION,
SO HELP ME WITH THAT.
I MEAN WHERE IS THE HARM TO
THE DEFENDANT FANTED IS ONLY
ONE MORE BITE NOW MAYBE
THREE, FOUR, FIVE BITES YOU
MIGHT SAY THAT THIS -- SORT
OF HANGING OUT THERE.
>> WELL, THE PROBLEM IS THAT
WE DO HAVE A POTENTIAL FOR
HAVING THOSE MULTIPLE BITES
YOU HAD A SITUATION THE
DEFENDANT-CAN BE WORN DOWN
HAVING TO GO BACK OVER AND
OVER AGAIN WHERE THE STATE
IS TRYING TO JUSTIFY THIS
ORIGINAL SENTENCE THEY RUN,
ON LOWER ON MONEY AND
PERSONNEL, AND TIME.
>> BUT THAT IS NOT WHAT WE
HAVE HERE.
>> NOT YET NOT YET WE DON'T
BUT WE MAY SEE HIM AGAIN.
>> PERHAPS WE OUGHT TO HAVE
COME OUT WITH A POLICY
STATEMENT, WHICH SAYS THAT
YOU DON'T GET BUT TO DO THIS
BUT ONCE.
AS THE FOURTH AND THE FIFTH,
AND THESE OTHER DISTRICT
COURTS HAVE DONE, BUT I'M
TROUBLED WITH THE FACT BY
THE FACT THAT IN AN AREA
THAT IS SO TECHNICAL, AS WE
HAVE SEEN SENTENCING GROW,
THAT ALL OF THE SUDDEN, IF A
YOU CAN -- WE -- WEAVE INTO
TRIAL COURT MAKING AN ERROR
WHICH YOU -- AND GOING
FORWARD THEN IN THE
APPELLATE COURT REVERSES
THAT, THAT THAT IS A
WINDFALL FOR THE DEFENDANT
AND I DON'T THINK THAT IS
WHAT WE OUGHT TO BE DOING I
THINK WE OUGHT TO TRY TO GET
IT RIGHT.
>> I WOULD AGREE THAT WE
SHOULD TRY TO GET THIS RIGHT,
HOWEVER, I BELIEVE THAT IN A
SITUATION WITH -- ON THE
BURDEN OF PROOF THERE IS
BASICALLY A PRESUMPTION HERE
THAT ENHANCEMENT IS NOT
APPROPRIATE, THE STATE HAD
TO TAG BURDEN OF PROOF IN
THIS SITUATION TO SHOW THAT
ENHANCEMENT IS APPROPRIATE
HERE.
THE STATE DID NOT MEET ITS
BURDEN OF PROOF.
>> LET'S GO IN THIS CASE
DIDN'T THE DEFENDANT CONCEDE
HE WAS AN HABITUAL OFFENDER.
>> I DIDN'T THINK HE
ACTUALLY DID.
>> DEFENSE COUNSEL NEVER
CONCEDED AT THE BEGINNING OF
THE BLAE THAT IN ACCEPTING
THE PLEA IN THIS CASE THAT
HE WAS AN HABITUAL OFFENDER.
>> I THINK THEY BELIEVED
THEY WERE FACING THAT HE
COULD BE FACING THOSE
SANCTIONS THAT COULD HAVE
OCCURRED DURING THE PLEA
HEARING BUT MR. COLLINS FOR
HIS PART I DON'T BELIEVE HE
EVER CONCEDED THAT HE IS A
HABITUAL PHONEDER.
>> THE SECOND QUESTION, WE
TALKED ABOUT THIS MULTIPLE
BITES THE RULE OF LAW THAT
YOUR O PONTENTS SUGGESTED
HAS BEEN THE RULE IN THE
FIRST FURTHER AND FIFTH FOR
QUITE A WHILE IS THERE ANY
EVIDENCE OF THIS HAPPENING
OF THE MULTIPLE BITES WHERE
THE STATE IS GOING BACK
MULTIPLE TIMES IN ANY
PARTICULAR CASE THAT YOU ARE
AWARE OF?
>> I HAVEN'T SEEN ANY CASE
LAW THAT GOES WITH IT BUT
THAT MAY JUST MEAN THAT
DEFENDANT UNDERSTAND THE
SITUATION SEES THE WHOEPLESSNESS
OF GOING BACK TO THE OVER
AND OVER AGAIN WHEN ALL THEY
ARE GOING TO DO IS GIVE THE
STATE ANOTHER CHANCE.
>> YOUR OPPONENT USED THE
3800 ANALOGY, AND WHY ISN'T
THAT A FAIR ANALOGY?
>> THAT IS THAT INSTEAD OF
COMING UP ON APPEAL, THAT A
-3 800 HAS BEEN FILED EVEN
IN THIS CASE, AND THEY
CAUGHT THE MISTAKE THERE.
>> AND, UNDER OUR 3 800 LAW,
ISN'T THERE REALLY IN EFFECT
A NEW SENTENCING HEARING
WHICH ALL THAT IN OTHER
WORDS, THE FLAW -- WAS
CAUGHT IN THAT CASE BY THE
DEFENDANT ASERTH IT IN A
POST CONVICTION 3 800, BUT
THERE IS A BRAND NEW HEARING
STRAIGHTEN IT ALL OUT AFTER
THAT ISN'T THAT WHAT HAPPENS
IN 3 800 MATTERS.
>> THE 3 800 IS KIND OF A
STRANGE CRITTER BECAUSE IT
DOES TAKE IT BACK TO THE
TRIAL LEVEL DURING THE
APPEAL DOES GIVE IT MORE AN
OPPORTUNITY, THAT BEING SAID
I DON'T KNOW THIS WOULDN'T
APPLY IN THAT SITUATION AS
WELL.
WHERE YOU HAVE A BURDEN OF
PROOF NOT BEING MET, THIS
GOES BEYOND THE JUST
SENTENCING TECHNICALITY
WHERE A PIECE OF PAPER
WASN'T FILED, THE BURDEN OF
PROOF BY THE STATE WAS NEVER
MET, AND THEY NEVER IMPROVED
UP ENHANCEMENTS IF LOOK AT I
TALK ABOUT A LITTLE BIT IN
MY BRIEF, THE SITUATION,
WHERE THE PREPUNISHMENT CODE
CASES WHERE WE HAVE
DEPARTURES THAT IS VERY
SIMILAR TO WHAT WE SEE HERE
AND AGAIN, ANOTHER SITUATION
WHERE WE HAVE A DEFENDANT,
WHO COULD PROBABLY COME UP
OVER AND OVER AGAIN ON THE
SAME CASE.
>> LET ME ASK YOU THIS, IN
THE GUILT DETERMINATION, WE
HAVE DOUBLE JEOPARDY CLAUSE
THAT PROHIBITS THE RETRIAL
BECAUSE IT WOULD TWICE PUT
THE DEFENDANT IN JEOPARDY.
HOWEVER, IN THE SENTENCEING
THE U.S. SUPREME COURT HAS
ALREADY SAID DOUBLE JEOPARDY
DOESN'T APPLY.
SO WHAT IS THE
JURISPRUDENTIAL HOOK THAT WE
WOULD USE GRANT YOU RELIEF
WHAT STATUTE WHAT RULE WHAT
CONSTITUTIONAL PROVISION OR
DO WE JUST SAY NO MULLIGANS?
DON'T WE HAVE TO HAVE SOME
KIND OF LEGAL JUSTIFICATION
FOR HOLDING IN YOUR FAVOR.
>> I THINK ALTHOUGH THE IDEA
OF DOUBLE JEOPARDY DOES NOT
SPECIFICALLY APPLY IN THIS
CASE THAT THERE ARE SOME
UNDER MINIMUMINGS THAT ARE
APPROPRIATE BECAUSE WE DO
HAVE THE POTENTIAL FOR THE
REPETITION, AND IF YOU LOOK
AT THE CASE THEY STACK ABOUT
THAT THEY SAID, WE BELIEVE
THAT BETTER POLICY REQUIRES
THE TRIAL COURT TO
ARTICULATE ALL OF THE
REASONS FOR DEPARTURE IN THE
ORIGINAL ORDER TO HOLD
OBSERVERWISE MAY NEDLESSLY
SUBJECT THE DEFENDANT TOWN
WARRANT EVIDENCE FORTS TO
JUSTIFY ORIGINAL SENTENCE,
AND ALSO MIGHT LEAD TO
OBSERVE RESULTS -- ABSURD
RESULTS ONE COULD ENVISION
NUMEROUS AS ONE BY ONE
REASONS OBJECTED ON MULTIPLE
APPEALS.
>> BUT THEN WE HAVE THE CASE
OF LET ME MAKE SURE I HAVE
IT RIGHT, MURRAY WHICH I
REFERRED TO.
>> RIGHT.
>> WE HAVE JUSTICE'S
CONCURRENCE WHERE SHE SAYS
THE ASH DRESSES SKULL, WAS
THE DANG OF DEVELOPING AFTER
THE FACT REASONS FOR DEURE
SENTENCES SUCH A DANGER DOES
NOT EXIST HERE, THIS CASE
DOES NOT INVOLVE A DEPARTURE
SENTENCE MURRAY WAS
SENTENCED AS HABITUAL
OFFENDER SO WE HAD IN THESE
DEPARTURE SENTENCE CASES,
VALID POLICY REASONS, FOR
NOT ALLOWING THE
RESENTENCING.
DO YOU AGREE THAT IS A
DISTINCTION THAT THERE THAT
THAT TYPE OF ABUSE COULDN'T
EXIST IN THIS SITUATION?
>> THAT WHAT WHAT SKULL OR
SHUL WAS REFERRING TO DO YOU
AGREE WITH THAT.
>> IN A WAY I UNDERSTAND
WHAT YOU ARE SAYING BUT I
BELIEVE THERE IS THE SAME
SORT OF PROBLEM COULD POP UP
BECAUSE THE STATE IS ARGUING
FOR DE NOVO HEARINGS THEY
COULD ACTUALLY FILE FOR PRR,
OR ANYTHING BECAUSE WE ARE
STARTING FROM SCRATCH ON
THIS.
>> WELL NOW WE HAVE A
DIFFERENT ARGUMENT ABOUT
WHAT ELSE HAPPEN ON
RESENTENCING THAT MAY BE
ANOTHER ISSUE WHICH IS THEY
CAN'T GO FOR ANYTHING MORE
THAN THEY WENT FOR
ORIGINALLY BUT I DIDN'T
UNDERSTAND YOU WERE ARGUING
FOR THAT KIND OF RESTRICTION,
AND I SO LET'S STICK WITH
THIS CASE, IN THIS CASE, YOU
SEE AND I DISTINCTION
BETWEEN THE FACT THAT STATE
BELIEVED AT LEAST AS AT THE
TIME, ASSUMING VALIDLY THAT
YOU COULD HAVE FIVE SEPARATE
CONVICTIONS FROM DIFFERENT
CASES ON THE SAME DAY, AND
IT COULD QUALIFY SOMEONE FOR
HABITUAL OFFENDER STATUS
THAT THAT IS WHAT WAS OCCURING
THAT THEY HAD THE
CONVICTIONS THERE, BUT IT
WAS IN THE JUDGE AND THE
STATE BELIEVE THAT IT THAT
THOSE WOULD LEGALLY QUALIFY.
>> CORRECT?
>> CAN YOU TELL ME WHEN
WOULD YOU DRAW DISTINCTION
WITH SOMETHING THAT WAS FACT
INADEQUATE IN OTHER WORDS,
THIS IS GOING TO TRY TO
ESTABLISH THAT THERE IS A
QUALIFYING FELONY IT COMES
FROM CALIFORNIA EVERYONE
BRINGS WITNESSES AND YOU
BRING WITNESSES, AND THEY
JUST DON'T MAKE THEIR CASE
THAT IT WAS QUALIFYING
FELONY AND YOU OBJECT ON
THAT BASIS, AND THEN THE
APPELLATE COURT SAYS YOU ARE
RO RIGHT THERE WAS FACTUALLY
INSUFFICIENT, DO YOU THINK
THERE SHOULD BE ANY
DIFFERENCE AND I REALIZE
AGAIN THIS DOESN'T HELP YOUR
CASE BUT BETWEEN A SOMETHING
THAT IS FACTUALLY INSTUFF
AND SOMETHING THAT WAS DELLY
INSUF, THAT THE JUDGE
THOUGHT WAS LEGALLY
SUFFICIENT AT THE TIME?
>> I BELIEVE THERE IS SOME
DISTINCTION ONE OF THOSE
AREAS WOULD BE IN AREA OF
FINALITY WHETHER THERE IS
EXPECTATION OF FINALITY I
BELIEVE IN CASES THAT ARE
ISSUES OF A LOBBYING THE
STATE OR THE DEFENSE ASKING
TO CHANGE A LOT THAT THERE
IS NOT AN EXPECTATION OF
FINALITY, AND THAT IS CASES
LIKE TROT WHERE YOU HAVE,
DEFENDANT BASICALLY TRYING
TO CHANGE THE LAW, AND GO
BACK IN, AND THE COURT SAID
NO FINALITY BECAUSE THIS AN
ISSUE OF -- OF LAW, AND NOT
ISSUE OF FACT, AND --
>> YOU MEAN SO IN THIS CASE,
IF THE THERE HAD BEEN LAW
FROM BOTH DISTRICTS SAYING
ONE YOU COULD HAVE IN ONE
DAY FIVE DIFFERENT FELONIES
AS LONG AS THEY WERE IN
DIFFERENT CASES, AND IN
ANOTHER COURT HAD SAID THE
OPPOSITE, AND THEN IT CAME
UP TO OUR COURT AND WE SAID
NO, YOU CAN'T HAVE IT.
THEN YOU ALLOW RESENTENCEING?
>> I THINK THAT AS THE LAW
STANDS RIGHT NOW IF IT IS AN
ISSUE OF PURE LAW, THAT
THERE WOULD BE A DE NOVO
REVIEW.
>> WHY ISN'T THIS WHY ISN'T
WHAT HAPPENED HERE EVEN
THOUGH IT WAS FOUND
INSUFFICIENT WASN'T THE
JUDGE MAKING A DECISION PURE
LAW.
>> NO BELIEVE IN THE JUDGE
WAS LOOKING AT THE FACTS I
BELIEVE THIS CASE IS PURELY
A TOOKUAL ISSUE THE JUDGE
MAY YIS UNDERSTAND CERTAIN
AREAS OF THE LAW WHEN HE HE
APPLIED TO FACTS THE LAW
UNDER SECOND DISTRICT COURT
OF APPEAL NEVER CHANGED ON
THIS ISSUE THERE WAS NO
CONFUSION OF THE LAW IN THIS
ISSUE THE WERE A AS PURE
MATTER WHEN OR NOT WHETHER
OR NOT THERE WERE TWO PRIORS
AS SIMPLE DIFFICULT AS THAT.
AND IF TWO PRIORS HE IS HE
IS HABITUAL OFFENDER IF
THERE'S NOT HE'S NOT.
THE COURT LOOKED AT THE
PAPERWORK AND AS I
UNDERSTAND IT THERE IS A LOT
OF DISCUSSION BACK AND FORTH,
AND IT IS KIND OF HARD TO
PIN DOWN WHY THE JUDGE RULES
AS HE DOES BUT HE IS LOOKING
AT IT AND SAYING TO ME, YOU
KNOW, IF YOU ARE GOING TO
HAVE SOMEBODY ON PROBATION
RESENTENCED ALL THIS IS GOOD
ENOUGH IT IS SUFFICIENT.
AND HE MAKES THAT
DETERMINATION, WITHOUT ANY
REFERENCE TO YOU KNOW, A
FLORIDA SUPREME COURT CASE
UNDER REVIEW OR SOMETHING OF
THAT EFFECT THAT IS
COMPLETELY FACTUAL ISSUE,
AND IF YOU LOOK AT TOTTER,
WHEN THE -- DECISION WAS
WRITTEN THE COURT TALKS
ABOUT HARRIS HOW YOU CAN'T
ATTACK SENTENCING LAW, AND
THEN EXPECT FINALITY THE
COURT GOES ON TO SAY WE NOTE
THE STATE'S -- IN THIS CASE
INVOLVED ONLY A LEGAL ISSUE
NOT TRIAL COURT'S
DISCRETIONARY JUDGMENT
CONCERNING HARRIS'S SENTENCE
THE TRIAL COURT'S DECISION
AGAINST HABITUAL OFFENDER
SANCTIONS WAS NOT BASED ON
THE STATE'S FAILURE TO CARRY
ITS PURCHASED OF PERSUASION,
AND I THINK THAT THAT IF IT
HE DISTINCT ARE A OF CASE
LAW AS ARE CASES WHERE FOR
EXAMPLE THE STATE MESSES UP
A DEFENDANT ASKS TO HAVE A
DE NOVO HEARING AND BECAUSE
THERE IS A MISTAKE BY THE
STATE, THE DEFENDANT WOULD
RECEIVE DE NOVO REVIEW OF
THE SENTENCING, HERE WE HAVE
THE STATE FAILING TO MEET
ITS BURDEN OF PROOF THE
STATE WANTING TO GO BACK AND
HAVE A NEW HEARING, IF YOU
WANT THE BURDEN OF PROOF TO
HAVE ANY MEANING WHATSOEVER,
YOU HAVE TO MAKE THE STATE
LIVE UP TO ITS BURDEN OF
PROOF THAT THE STATE HAD
THOUGHT IT HAD YOU HAVE A
NEUTRAL MAGISTRATE HERE WHO
MADE A MISTAKE.
SO WHY SHOULD EITHER PARTY
THE STATE OR THE DEFENDANT
BE INJURED OR HURT IN ANY
WAY WHEN NEUTRAL MAGISTRATE
MAKES THE MISTAKE?
>> IT IS SAME SITUATION
WOULD BE JOA, WHERE THE
JUDGE DECIDES THAT THERE IS
ENOUGH EVIDENCE, JUST
BECAUSE THE JUDGE RULES A
CERTAIN WAY DOES NOT RELIEVE
THE STATE OF ITS BURDEN OF
PROOF THEY HAVE THE BURDEN
OF PROOF, THEY DID NOT MEET
THAT BURDEN.
THE TRIAL COURT WAS CONFUSED
BY THE PAPERWORK UNDER QUITE
FRANKLY THE PAPERWORK IS
AWFUL THE COPIES ARE BAD AND
IT IS VERY EASY TO BE
CONFUSEED BY THAT.
HE WAS CONFUSED BY THIS, AND
HE THOUGHT THAT IT WAS
SUFFICIENT, SECOND DISTRICT
COURT OF APPEALS HAS SIMPLY
SAID IT IS NOT SUFFICIENT,
THE STATE DOESN'T GET
ANOTHER CHANCE TO PROVE UP
ITS BURDEN OF PROOF THE
STATE DOES NOT ALWAYS A
BURDEN OF PROOF THE STATE
CHOSE TO TAKE THE BURDEN OF
PROOF TO PROVE THE
ENHANCEMENT WAS APPROPRIATE
IN THIS CASE.
>> I GUESS MY POINT IS THE
STATE DID THAT, THEY WENT TO
THE NEUTRAL MJ AT ANY RATE
PRESENTED TO NEUTRAL MJ AT
ANY RATE ALL THEY THOUGHT
WAS NECESSARY THAT NEWS AT
TRAL MAGISTRATE JUDGE DOWN
THERE SAID YES YOU DID WHAT
THE LAW REQUIRES, THAT NOW
AT TRAL MAGISTRATE WAS WRONG,
APPELLATE COURT APEAV
MAGISTRATE TELL US THEM THAT
IT IS GOING BACK DOWN.
>> YOU WOULD STILL THINK THE
STATE SHOULD BE -- PRECLUDED
FROM DOING WHAT IT ALL
REASONABLY, I ASHUM THOUGHT
THAT IT HAD DONE CORRECTLY
THE FIRST TIME.
>> THE JUDGE IS GOING TO
MAKE A DETERMINATION EVERY
TIME ON SUFFICIENCY DOES NOT
RELIEVE THE BURDEN OF PROOF
FROM PERSON DEMONSTRATING
EVIDENCE DOES MAKE IT A
SITUATION, AGAIN IN THE
TROTTER DECISION THE FIRST
LINE I READ WAS THE ISSUE IS
NOT TRIAL COURT'S
DISCRETIONARY JUDGMENT
CONCERNING THE CASE, THEY
GROUP IN WITH THE STATE --
FAILING TO MEET ITS BURDEN
OF PROOF THAT IS DIFFERENT
SITUATION, THAN THE ISSUES
OF LAW.
IT IS REGRETTABLE THAT THE
COURT MISUNDERSTAND THE
EVIDENCE KNT PROPERLY WEIGH
SUFFICIENCY EVIDENCE THAT
DID NOT RELIEVE BURDEN STATE
TOOK UPON ITSELF TO SHOW
ENHANCEMENT WAS APPROPRIATE.
>> COULD THE STATE HAVE DONE
AT THE HEARING TO MEET ITS
BURDEN OF PROOF?
>> IF I WERE THE PROSECUTOR
IN THE CASE, I WOULD START
BY GO TO BACK, AND MAKING
SURE I HAD ALL THE PAPERWORK
BEFORE I GOT INTO COURT SOME
OF THIS IS SLOPLY LAWYERING
THEY CAME IN THOUGHT THEY
HAD WHAT THEY NEEDED MAYBE
IT WAS IN ANOTHER FILE MAYBE
THEY LEFT IT ON THEIR DESK
THEY HANDED IN WHAT THEY HAD
AND --
>> HOW DO YOU PROVE THESE
CASES WERE SENTENCED AT
DIFFERENT PROCEEDINGS IF
THEY WERE SENTENCE ON THE
SAME DAY HOW DO YOU PROVE
THAT 15 YEARS AGO THAT THEY
WERE PART OF THE DIFFERENT
PROCEEDINGS?
>> IF THEY DO NOT HAVE THE
PAPERWORK ON HAND THEY
PROBABLY HAVE MICROFICHE I
KNOW IN SECOND DISTRICT
COURT THAT IS HOW WE HANDLE
PAPERWORK AS WE PUT ON
MICROFICHE YOU HAVE TO BACK
INTO BASEMENT SCARE CAN YOU
GO BACK IN THERE GET OLDER
PAPER WORK.
>> WOULD PAPERWORK SHOW IT
WAS DONE IN A SEPARATE
PROCEEDING IF DON THE SAME
DAY?
>> I MEAN SHOW THE DATE OF
THE SENTENCING.
HOW DO YOU KNOW THAT IT
WASN'T DONE 1:00 -- ONE IN
THE MORNING ONE IN THE
AFTERNOON SAME DEFENDANT
SAME DATE BUT DIFFERENT
PROCEEDING?
>> I'M NOT SURE ABOUT THE
ANSWER TO THAT.
IT MAY HAVE TIMES AND JUDGES
LISTED ON THE PAPERWORK 15
YEARS AGO I CAN'T TELL YOU
WHAT THEY WERE DOING ON THE
PAPERWORK HOWEVER WHAT I CAN
TELL YOU IN ORDER FOR THE
STATE TO MEET ITS BURDEN OF
PROOF THAT IS LEGISLATIVE
FUNCTION THAT IS NOT
SOMETHING THAT YOU KNOW WE
ARE TRYING TO RECREATE BUT
IN ORDER TO MEET BURDEN OF
PROOF THAT IS REQUIRED IN
ORDER TO JUSTIFY THIS
ENHANCEMENT THEY WOULD HAVE
TO DO THAT I DON'T KNOW IF
INFORMATION WAS AVAILABLE
THEY NEVER CLAIMED IT WASN'T
AVAILABLE IN THIS CASE I
THINK WE CAN ASSUME IT PROS
-- PROBABLY WAS THEY DIDN'T
BRING IT IN BECAUSE THEY
DIDN'T CLIMB THEY TRIED TO
GET IT THEY DIDN'T CLAIM
THEY HAD GONE DOWN TO THE
BASEMENT AND THE RECORDS
WERE MISSING, OR TRY TO
BRING IN THE JUDGE, THAT
DOES SENTENCING SEE IF HE
COULD REMEMBER IT THERE WAS
NOTHING THAT THEY DID TO TRY
TO PROVE THIS UP.
WHEN THE STATE TAKES ON THAT
BURDEN OF PROOF, THEY HAVE
TO HAVE THAT PROOF, AND THEY
HAVE TO MEET THE BURDEN IF
THEY CAN'T DO IT THEY
ENHANCEMENT THERE IS
PRESUMPTION THAT ENHANCEMENT
IS NOT GO TO GO INTO EFFECT.
>> LET'S GO ON WITH
ASSISTANCE YOU HAVE A--
EXHAUSTED ALL OF YOUR TIME,
THANK YOU VERY MUCH.
>> THANK YOU.
>> STATE'S REBUTTAL.
OF.
>> FIRST OF ALL, IN RESPONSE
TO THE COURT'S QUESTION OF
WHAT THE TRIAL COURT BASED
ITS DECISION ON.
THE COURT STATED EVEN IF I
ACCEPT THE DEFENSE ARGUMENT
THAT CONVICTIONS 2, 3, 4,
AND WERE SENTENCE CONCURENTSLY
IN OTHER WORDS, REVOCATIONS
OF PROBATION ALL OCCURRED ON
THE SAME DAY.
EVEN IF I ASSUMED THAT, HE
VIOLATED HIS PROBATION AND
THEN WAS CITIZEN 10'D AFTER
A VIOLATION, THE PERSON WAS
PUT ON PROBATION AND THEN
THE FINAL JUDGMENT IS
ENTERED OF JAIL TIME, THAT
IS A REVOCATION.
IT SAYS RIGHT HERE ON PAGE
TWO IT IS A REVOCATION.
ACTUALLY A BRAND NEW
SENTENCING.
AT THE TIME -- I FIND
SOMEBODY VIOLATED THEIR
PROBATION I CAN GIVE THEM
WHATEVER SENTENCE I COULD
HAVE GIVEN ORIGINALLY, SO IN
THIS SENTENCE UNDER THE LAST
TWO CASES, APPARENTLY
SEPARATE SENTENCINGS FROM 2,
3, 4, AND 5 AGAIN THE COURT
WAS CONFUSING THE DATE OF
REVOCATION, I MEAN THE DATE
OF SENTENCING WITH THE DATE
OF THE ORIGINAL THE DATE OF
THE ORIGINAL PROBATION.
THE STATE COULD HAVE EASILY
HAVE RESOLVED THIS QUESTION
HAD THE OBJECTION BEEN
SUSTAINED --
>> THE OBJECTION WAS MADE;
RIGHT?
THEY COULD HAVE RESOLVED IT
ALSO WHEN THE OBJECTION WAS
MADE.
>> SORRY.
>> THE STATE COULD HAVE
RESOLVED IT ALSO WHEN
OBJECTION WAS MADE IT DIDN'T
HAVE TO WAIT UNTIL IT WAS
OVERRULED TO SUSTAIN THEY O
COULD M SAID FINE YOU OBJECT
TO THAT LET ME INTRODUCE
THIS OTHER STUFF.
>> THE STATE TOOK THE --
TOOK THE POSITION ERRONEOUSLY
IT DIDN'T HAVE GO ANY
FURTHER --
>> YOU KNOW THE STATE MANY
TIMES WHEN DEFENDANT OBJECTS
TO SOMETHING, IN ORDER TO
PROTECT ITSELF, THE STATE
WILL COMPLY WITH THE
DEFENDANT'S OBJECTIONS, TO
PROTECT AGAINST THE REVERSAL
ON APPEAL THE STATE COULD
HAVE DONE THAT IN THIS CASE.
>> THE DEFENDANT MAKES
OBJECTION THE STATE HAS THE
OPPORTUNITY TO RESPOND TO
THE OBJECTION THE STATE'S
POSITION THE STATE YOU KNOW,
THE STATE DIDN'T HAVE ANY
QUALMS IN ITS MIND THE
PROSECUTOR HAD NO QUALMS IN
ITS MIND THAT IT WAS GOOD
THAT THE EVIDENCE THAT IT
PRESENTED WAS SUFFICIENT IF
IT HAD, ANY DOUBTS IT
PROBABLY WOULD HAVE GONE
FORWARD.
BUT THE POINT IS THATED THE
JUDGE SUSTAINED THE
OBJECTION THE STAUT WOULD
HAVE LAD OPPORTUNITY GO
FORWARD AND IT DIDN'T DO SO FORWARD AND IT DIDN'T DO
SO.
>> COUNSEL, WITH OUR
ASSISTANCE YOU'VE ALSO
EXHAUSTED YOUR TIME.
WE THANK YOU FOR YOUR
ARGUMENTS.
WE WILL CERTAINLY TAKE THIS
CASE UNDER ADVISEMENT AND WE
APPRECIATE YOUR ARGUMENTS TO
THE COURT THIS MORNING.
>> THANK YOU.
>> PLEASE RISE.,,,,,,,,,,,,,,YOU.
>>