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Sept 21, 2006
James Frank Pizzo v. State of Florida
SC05-1951
PLEASE RISE.
HEAR YE, HEAR YE, HEAR YE. THE KOURT OF FLORIDA IS NOW IN SESSION. ALL WHO HAVE CAUSE TO PLEA, DRAW NEAR, GIVE ATTENTION, AND YOU SHALL BE HEARD. GOD SAVE THESE UNITED STATES, THE GREAT STATE OF FLORIDA, AND THIS HONORABLE COURT. >> MORNING. >> MORNING. >> LADIES AND GENTLEMEN, THE FLORIDA SUPREME COURT. PLEASE BE SEATED. >> GOOD MORNING, FRENTSDS, AND WELCOME TO THE FLORIDA SUPREME COURT THE ARGUMENTS FOR THURSDAY, SEPTEMBER 21st. OUR FIRST CASE ON THE CALENDAR IS PIZZO v. STATE OF FLORIDA, AND I WOULD PLEASE ASK ALL COUNSEL TO UNDERSTAND THAT THE COURT HAS THOROUGHLY STUDIED THESE CASES AND A AT TIMES WERE VERY INQUISITIVE AND TO USE YOUR TIME MOST JUDISHESLY SO THAT WHEN YOU WALK AWAY YOU FELT THAT YOU HAVE PRESENTED YOUR ARGUMENT SO WITH THAT PLEASE PROCEED. >> GOOD MORNING, AND MAY IT PLEASE THE COURT, BEVERLY POHL REPRESENTING JAMES FRANK PIZZO IN THIS CASE. I WOULD LIKE TO START WITH A FEW AREAS WHERE THERE IS SOME AGREEMENT SO THAT WE DON'T HAVE TO SPEND TIME ON THOSE THINGS. EVERYONE AGREES THAT THERE IS A DOUBLE JEOPARDY VIOLATION WHEN SOMEONE IS CONVICTED OF ORGANIZED TO DEFRAUD AND GRAND THEFT THAT ARE BASED UPON THE SAME FACTUAL CIRCUMSTANCE. THAT'S NOT IN DISPUTE. EVERYONE ALSO AGREES THAT THE PROPER REMEDY FOR THAT IS THE VACATE THE LESSER OFFENSE. SO THE QUESTION THAT THE COURT HAS ASKED IN ITS GRANT OF JURISDICTION IS HOW DOES ONE, HOW DOES A COURT DETERMINE WHAT IS THE LESSER OFFENSE. >> BEFORE YOU GET TO THAT ISSUE, CAN YOU DISCUSS THE ISSUE OF CONFLICT BECAUSE IT'S FROM READING THE OPINION IN THIS CASE, THE COURT DIDN'T SAY ONE THING OR THE OTHER. IT JUST LEFT IT TO THE TRIAL COURT TO DETERMINE WHICH WAS THE LESSER OFFENSE. SO WHY DOES THAT CREATE CONFLICT WITH OTHER CASES? >> IT CREATES A CONFLICT, JUSTICE CANTERO BECAUSE IT IS THE RESPONSIBILITY OF A COURT TO ISSUE OF LAWANE CRIMINAL OF APPEAL. THIS IS AN ISSUE OF LAW. IT DOESN'T REQUIRE FACTUAL DEVELOPMENT. THERE THERE IS REALLY NO NEED TO REMAND IT AND THE ONLY THING THAT WOULD HAP FPB IT WERE REMANDICIDE THE TRIAL COURT'S DECISION ON THAT ISSUE OF LAW WOULD THEN BE SUBJECT TO ANOTHER APPEAL SO ULTIMATELY IT'S THE QUESTION OF THE DISTRICT COURT TO. AND EVERY DECISION THAT CAME PRIOR TO THIS CASE HAD BEEN ONE IN WHICH THE DISTRICT COURT MADE SOME DECISION AND DIRECTED THE TRIAL COURT WHICH OFFENSES TO VACATE HERE. HERE THEY SAID WE CAN'T DECIDE AND THAT IN AND OF ITSELF IS A CONFLICT. >> WELL, IF ON REMAND THE TRIAL COURT AGREES WITH THE OTHER DISTRICTS, THEN THERE IS NO CONFLICT, THE LAW IS UNIFORM THROUGHOUT THE STATE. >> WELL THE CONFLICT JURISDICTION FOR THIS COURT'S CASES IS NOT CONFLICT BETWEEN THE SISHTH COURT DECISIONS AND THE DISTRICT COURT DECISIONS. IT'S THE CONFLICT BETWEEN DISTRICT COURT DECISIONS AND OTHER DISTRICT COURT DECISIONS FROM THE FOURTH AND OTHER DISTRICTS HAVE SAID GRAND THEFT IS THE LESSER OFFENSE AND MUST BE VACATED SO TO THE EXTENT THE SECOND ZRAKT DID THAT HERE, WE BELIEVE THAT THAT IS CONFLICT. >> THE SECOND DISTRICT IN THIS CASE DID NOT VACATE THE GRAND THEFT BECAUSE THERE WERE MULTIPLE GRAND THEFTS ARE NOT HERE FROM THE OPINION WHY THE COURT DID NOT VACATE THE GRAND THEFT. >> NOR, AM I. JUSTICE KENS A. THE SECOND DISTRICT DID NOT REALLY EXPLAIN WHY IT DIDN'T TAKE THAT ACTION IN THIS CASE OTHER THAN TO SAY THAT BECAUSE THERE ARE SIX COUNTS OF GRAND THEFT AND ONE COUNT OF ORGANIZED TO DEFRAUD, THEY DID NOT MAKE THE DETERMINATION BUT THAT IS NOT CONSISTENT WITH WHAT HAPPENED IN OTHER CASES EVEN IN THE WILLIAMSON CASE CITED IN OUR BRIEF FROM THE SECOND DISTRICT THERE HAD BEEN 57 COUNTS OF GRANT THEFD, ONE ORGANIZED FRAUD, AND ALL 57 COUNTS OF GRAND THEFT WERE VACATED. >> SO YOU JUST LOOK AT THE FACT THAT GRAND THEFT IS A THIRD DEGREE FELONY. AND ORGANIZED FRAUD, THE FIRST DEGREE FELONY? SO IS THAT ENOUGH TO SAY THAT THE GRAND THEFT ARE THE LESSER OFFENSES AND SO THE GRAND THEFT SHOULD BE VACATED? >> I BELIEVE THAT THAT IS ALL ONE HAS TO DO IN THIS CASE. IT MAY BHE MORE COMPLICATED IN OTHER FACTUAL SCENARIOS, BUT IN THIS CASE, IT'S KRITAL CLEAR THAT ONE OF THE OFFENSES HAS BEEN DESIGNATED BY THE LEGISLATURE AS A FIRST DEGREE FELONY AFIRST DEGREE FELONY CARRIES BY DEFINITION AMORE SERIOUS SENTENCE THAN DOES A SECOND OR THIRD DEGREE FELONY. ONE OF THE GRAND THEFTS IS A SECOND DEGREE FELONY AND THE OTHERS ARE THIRD DEGREE T. SHOULDN'T HAVE TO REALLY GO BEYOND THAT. IT'S SO SELF-EVIDENT TO US THAT ORGANIZED FRAUD IS THE MORE SERIOUS OFFENSE. >> WELL, IN FIRMS OF SERIOUS, ISN'T THAT IF THERE IS A CONFLICT ISSUE, THAT'S THE CONFLICT ISSUE WHICH IS DO YOU LOOK AT THE ELEMENTS OR THE SEVERITY OF THE PUNISH SNMENT AND ISN'T THE SORT OF THE INTENT BEHIND ALL OF THIS IS SOMEONE DOESN'T GET PUNISHED TWICE FOR WHAT IS ESSENTIALLY THE SAME OFFENSE. BUT ON THE OTHER HAND, SHOULDN'T THEY BE PUNISHED THE MOST SEVERELY FOR WHATEVER THE OFFENSE IS? SO TELL ME WHY IT ISN'T APPROPRIATE TO LOOK AT WHATEVER THE GREATER PUNISHMENT IS, AND THEN VACATE WHATEVER OFFENSE HAS THE LESSER PUNISHMENT. >> I THINK, IT'S IMPORTANT TO LOOK AT WHY THIS COMPARISON IS BEING MADE. AND WHEN IT'S BEING MADE FOR DOUBLE JEOPARDY PURPOSES, DOUBLE JEOPARDY IS NOT ABOUT THE LENGTH OF PUNISHMENT. THE DOUBLE JEOPARDY IS ABOUT ELEMENTS. THAT'S WHAT THE BLOCKBUSTER TES IS. IT LOKS AT THE ELEMENTS OF THE OFFENSE AND NOT THE PUNISHMENT AND I THINK -- >> WELL, THAT'S IN ORDER TO DETERMINE IF THERE'S A DOUBLE JEOPARDY OFFENSE VIOLATION BUT WHAT WE ARE TALKING ABOUT HERE IS WHAT IS THE REMEDY BECAUSE YOU JUST -- YOU STARTED YOUR ARGUMENT BY SAYING IF THERE -- EVERYONE AGREE THERE'S A DOUBLE JEOPARDY VIOLATION. SO TELL ME IN THIS SITUATION, WHAT WOULD BE THE PUNISHMENT OR WHAT IS FOR THE GRAND THEFT AND WHAT IS THE PUNISHMENT FOR THE RACKETEERING? ARE THEY DIFFERENT PUNISHMENTS? CAN WE FIGURE THAT OUT? AND IS THAT WHY THE SECOND DISTRICT REMANDED IT? >> I THINK YOU MISSPOKE WHEN YOU SAID RACKETEERING, JUSTICE PARIENTE BECAUSE IT WOULD BE ORGANIZED SCHEME TO DEFRAUD WHICH IS WHAT WE ARE COMPARING. WHAT ACTUALLY IS COMPOSED ON ALL THESE WAS FIVE YEARS ON EACH COUNT. WHAT WAS POTENTIALLY AVAILABLE TO BE IMPOSED DIFFERED. IT WOULD BE A 15-YEAR SENTENCE FOR SECOND-DEGREE FELONY AND FIVE-YEAR MAXM SENTENCE FOR THE THIRD-DEGREE GRAND THEFT. >> WELL, YOU COULD -- YOU COULD STACK THEM. SO IF YOU ARE LOOKING AT ORGANIZE FRAUD 30 YEARS BUT IF YOU STACK THE THIRD FIVE DEGREE FELONIESES AND ONE SECOND DEGREE FELONY, WOULDN'T YOU BE LOOKING AT 40 YEARS? >> WELL, THAT'S ONE OF THE STATE'S ARGUMENTS, BUT THERE IS REALLY NO PRECEDENT IN THE CONTEXT OF A DOUBLE JEOPARDY ANALYSIS TO LOOK AT A SERIES OF CONVICTIONS AS A UNIT. EACH, EACH CONVICTION FOR THE, FOR THE OFFENSE OF GRAND THEFT HAS TO BE COMPARED TO THE GREATER OFFENSE OF ORGANIZED FRAUD AND YOU SIMPLY LOOK AT THE ELEMENTS OF EACH ONE. AND EVEN IF YOU LOOKED AT ALL OF THE GRAND THEFT TOGETHER, ALL OF THOSE ELEMENTS FIT WITHIN THE ELEMENTS OF ORGANIZED FRAUD. SO UNDER OUR APPROACH WHICH WE BELIEVE IS THE RIGHT ONE TO LOOK AT THE ELEMENTS OF THE OFFENSE, NO MATTER HOW YOU LOOK AT IT, EITHER COLLECTIVELY OR INDIVIDUALLY, THE GRAND THEFT CANNOT STAND, AND TO FOLLOW -- >> WHEN YOU'RE SAYING ARE LESSER INCLUDED OFFENSES OF THE ORGANIZED FRAUD? >> THEY'RE NOT LESSER INCLUDED OFFENSES THE WAY THAT TERM IS USUALLY UNDERSTOOD. THEY ARE ACTUALLY DEEMED TO BE THE SAME OFFENSE UNDER THE EXCEPTIONS TO THE -- UNDER THE STATUTE -- THAT REPRESENTS THE BLOCKBUSTER TEST, 775021 STATUTE. THEY'RE DEEMED TO BE THE SAME OFFENSE BECAUSE NEITHER OF THEM, OR LET ME PUTS IT THIS WAY. IN ORDER TO BE DIFFERENT OFFENSES, EACH OF THEM HAS TO HAVE AN ELEMENT THAT THE OTHER ONE LACKS. THAT'S NOT -- >> ORGANIZED FRAUD CONTAINS ALL OF THE ELEMENTS OF THE GRAND THEFT, PLUS. THEN ISN'T THAT -- ISN'T THAT A LESSER INCLUDED OFFENSE? >> NO, BECAUSE THESE ARE TWO DISTINCT STATUTORY PROVISIONS, AND THE LANGUAGE THAT IS USED IS THAT THESE ARE DEEMED FOR DOUBLE JEOPARDY PURPOSES TO BE THE SAME OFFENSE AND THAT'S WHY THEY CANNOT CO-EXIST. NOT QUITE THE SAME THING AS A LESSER INCLUDED OFFENSE. BECAUSE THE JURY WASN'T INSTRUCTED THAT EITHER THEY FIND ORGINIZED -- AGAIN, ORGANIZED FRAUD AND THEN NEXT ONE WOULD BE GRAND THEFT. >> THAT'S CORRECT. >> BECAUSE IF THEY HAD DONE THAT, THERE WOULDN'T HAVE BEEN -- >> THAT'S CORRECT. >> IT WAS TWO SEPARATE JURY INSTRUCTIONS AND TWO SEPARATE CONVICTIONS. >> THAT'S RIGHT. >> BUT I'M STILL NOT SURE IN TERMS OF IF WE AGREE THERE'S A DOUBLE JEOPARDY VIOLATION, WHICH IS NOT IN DISPUTE EXPLAIN AGAIN, ARE YOU SAYING THAT HE ACTUALLY COULD RECEIVE A GREATER PUNISHMENT FOR THE CONVICTIONS FOR THE GRAND THEFT THAN FOR THE CONVICTIONESS FOR THE -- CONVICTIONS FOR THE ORGANIZED -- FOR THE FRAUD? >> ONLY IN THE MOST HYPOTHETICAL SENSE BECAUSE IN THE REALITY SENSE HE COULD NOT. HE RECEIVE AD15-YEAR SENTENCE OVERALL. UPWARD DEPARTURE HON THE RICO COUNT, AND, IF THERE WERE TO BE A REMAND AND A RESENTENCING, HE COULDN'T RECEIVE A SENTENCE IN EXCESS OF THAT 15 YEARS WITHOUT CONFLICTING WITH NORTH CAROLINA v. PIERCE. THAT WOULD BE A DUE PROCESS VIOLATION WERE THERE NOT SOME ADDITIONAL FACTS LEADING TO A LARGER SENTENCE -- >> WELL, THAT'S BECAUSE HE'S ALREADY BEEN SENTENCED. >> THAT'S RIGHT. >> BUT IF THIS WERE A FRESH SENTENCING, LET'S ASSUME HYPOTHETICALLY THAT NO SENTENCING OCCURRED THIS JUDGE COULD'VE SENTENCED HIM TO 45 YEARS IF HE HAD STACKLOAD THE GRAND THEFTS? >> NO, HE COULD NOT BECAUSE THIS WAS A SENTENCE UNDER THE PRE-1998 GUIDELINES SO THE JUDGE WAS CONSTRAINED BY THE GUIDELINE RANGE. THE GUIDELINE RECOMMENDATION WAS EIGHT YEARS. THE RANGE WAS 6 TO TEN, AND HE DID EXCEED THAT, BUT THAT WAS IN CONFLICT WITH BLAKELY, AND THAT CERTAINLY WAS -- COULD NOT BE RETPEATED. SO THE THEORY THAT THE STATE MIGHT BE ABLE TO GET THIS LONGER SENTENCE, I UNDERSTAND, BUT IT CANNOT REALLY HAPPEN IN THIS CASE. >> BUT WHAT WOULD HAPPEN IN THE NEXT CASE? I THINK THAT'S THE QUESTION. >> WELL, IN THE NEXT CASE -- >> UNDER -- SOMEBODY IS CONVICTED TODAY FOR A CRIME THAT WAS COMMITTED IN 2005, WHAT WOULD THE SITUATION UNDER THE IDENTICAL FACTS -- >> I THINK THE CORRECT -- >> THE POTENTIAL SENTENCE IS CONCERNED? >> I THINK THE CORRECT ANALYSIS WOULD STILL BE TO VACATE THE GRAND THEFT BECAUSE EACH GRAND THEFT COUNT WOULD HAVE TO BE COMPARED TO THE ORGANIZED FRAUD, AND WHEN THE ELEMENTS OF THE GRAND THEFT ARE ASSUMED IN THE FRAUD, THAT COUNT CAN'T EXIST. >> RIGHT, BUT MY QUESTION TO YOU IS, WHAT WOULD BE THE SENTENCE POTENTIAL? >> IT WOULD BE -- >> PRO BONO SCENARIO. >> IT WOULD BE WHATEVER THE POTENTIAL SENTENCE IS THERE THE ORGANIZED FRAUD IN THAT CASE. IF IT WAS A SECOND DEGREE, THE POTENTIAL SENTENCE WOULD BE 15 YEARS. >> SO YOU'RE SAYING UNDER THE PRESENT SITUATION YOU COULDN'T STACK THE GRAND THEFTS? >> NO, BUT -- BECAUSE I DON'T THINK THE GRAND THEFTS COULD SURVIVE. >> WELL, I -- LET'S ASSUME THAT THEY DID. >> WELL, UNDER THE CRIMINAL PUNISHMENT CODE IT'S THE STATUTORY MAXIMUM. SO I SUPPOSE IN THAT THEORY, ONE COULD DO THAT. BUT IT DOESN'T MAKE GOOD DOUBLE JEOPARDY SENSE OR FALL WITHIN THE BLOCKBUSTER ANALYSIS TO DO THAT. BLOCKBURGER. SNOOL YEAH BUT REAR RR STILL. THE QUESTION IS CONSTITUTIONALLY. WHY AS THE REMEDY FOR A DOUBLE JEOPARDY VIOLATION DOES IT HAVE TO BE THAT YOU VACATE WHAT WOULD BE THE OFFENSE THAT'S ASSUMED WITHIN THE GREATER OFFENSE? AS LONG AS YOU VACATE ONE OF THE TWO THAT ARE THE DOUBLE JEOPARDY PROBLEM, AND SENTENCE ONLY FOR ONE OF THE TWO, THERE IS -- THERE IS NO DOUBLE JEOPARDY VIOLATION. WOULD YOU -- DO YOU AGREE WITH THAT? >> I DO AGREE WITH THAT. >> SO THEN THEREFORE, WE ARE TALKING ABOUT REMEDY AND WHY WOULDN'T WE IN THIS DAY AND AGE KNOWING THAT THE LEGISLATURE WOULD RATHER SOMEONE RECEIVE THE GREATEST POSSIBLE PUNISHMENT, ALLOW THE TRIAL COURT TO DETERMINE WHICH OF THE TWO OFFENSES ALLOWS THE GREATEST POSSIBLE PUNISHMENT AS LONG AS THEY DON'T PUNISH FOR BOTH SEPARATE OFFENSES? >> ONE THING, THIS COURT'S DECISION IN STATE v. BARTON SAYS THAT THE LESSER OFFENSE IS TO BE VACATED. >> BUT YOU'VE JUST TOLD JUSTICE QUINCE THAT THIS IS NOT A LESSER OFFENSE -- >> IT'S NOT A LESSER INCLUDED OFFENSE AS THE WAY THAT THAT TERM IS DEFINED BUT IT IS A LESSER OFFENSE, IT'S A LESSER A DEGREE IF YOU LOOK AT THE OFFENSE OF GRAND THEFT JUST IN ISOLATION, THE OFFENSE OF GRAND THEFT CARRIES ONLY A FIVE-YEAR PENALTY. THE OFFENSE OF ORGANIZED FRAUD IN THIS CASE, THE SECOND DEGREE FELONY, CARRIES A 15-YEAR SENTENCE. >> BUT, THAT'S NOT HOW WE USE LESSER. YOU MEAN LERS, AND I THINK THAT'S HOW QUINCE WAS USING, THERE ARE LESS OFFENSES OF GRAND THEFT THAN ORGANIZED FRAUD. >> THAT'S CORRECT. IF EVERY COURT UP UNTIL THIS ONE HAS GOTTEN IT WRONG, IT WOULD SURPRISE ME. >> IT MAY BE JUST THAT THAT FACTUAL SCENARIO WASN'T THERE WHERE THERE WAS A POTENTIAL FOR A GREATER SENTANCE UNDER THE THEFT THAN THERE WAS FOR THE ORGANIZED FRAUD. THERE'S NO THOUGHT -- I MEAN WE ARE TRYING TO LOOK AT WHAT IS THE PRINCIPLED RULE OF LAW THAT COMES OUT OF THIS, AND I THINK YOU'VE ALREADY SAID THERE WOULDN'T BE A CONSTITUTIONAL VIOLATION IF WE LOWED THE SECOND DISTRICT OPINION TO STAND. >> THAT'S CORRECT. BUT YOU'RE PRESUMING THAT CONSECUTIVE SENTENCING IS THE NORM, AND CONSECTATIVE SENTENCING IS THE EXCEPTION REALLY, NOT THE RULE. A SENT SENSE PRESUMED TO BE CONCURRENT UNLESS FOR SOME REASON THE JUDGE FINDS A REASON TO IMPOSE CONSECUTIVE SENTENCES. >> NO, I WASN'T PRESUMING THAT. I WAS JUST PRESUMING THAT THE LEGISLATURE WOULD WANT THE PERSON, THE DEFENDANT TO BE -- TO RECEIVE THE MOST HARSH PUNISHMENT THAT THEY COULD RECEIVE UNDER THE LEGALLY VALID CONVICTIONS THAT WOULD STAND. THAT'S WHAT I WAS PRESUMING. >> I JUST THINKERATORS DOUBLE JEOPARDY MISTAKE TO ANALYZE THE GRAND THEFT COLLECTIVELY. I BELIEVE THAT IT NEEDS TO BE DONE OFFENSE BY OFFENSE. AND AS I'VE SET FORTH IN THE BRIEF, ALL OF THE ELEMENTS OF EACH OFFENSE ARE ASSUMED SO EACH OF THOSE GRAND THEFTS NEED TO BE VACATED AND ONLY THE ORGANIZED FRAUD -- >> LET ME ASK YOU THIS. AFTER BLAKELY v. WASHINGTON, A LOT OF TRIAL COURTS UNDERSTANDABLY SO ARE ASKING THE JURY TO DETERMINE MANY OF THESE FACTUAL ISSUES THAT ARE RELEVANT TO SENTENCE!!ING SO THAT SOMETIMES NOW A SOMETHING AS A LESSER INCLUDED OFFENSE ISN'T NECESSARILY LESSER ANYMORE DEPENDING ON THESE POST-CONVICTION AGGRAVATING FACTORS LIKE DID YOU CARRY A WEAPON, THINGS LIKE THAT, AND IT'S ALMOST LIKE A FAMILY TREE NOW THAT A COURT HAS TO GO THROUGH TO ASK THE JURY AND IT I'D ALSO LIKE US TO BE CONSISTENT IN DETERMINING IF WE'VE -- DEFENSE COUNCIL IS ASKING INSTRUCTIONS ON LESSER INCLUDED OFFENSES. SO, SHOULDN'T TRIAL COURTS NOW -- IT'S VERY COMPLICATED FOR TRIAL COURTS TO DETERMINE WHICH IS THE GREATER AND WHICH IS THE LESSER WHEN YOU TAKE INTO ACCOUNT ALL THESE SENTENCING FACTORS SO SHOULDN'T THE TRIAL COURTS BE ALLOWED IN THE DOUBLE JEOPARDY CONTEXT TO SEE, WELL, GIVEN THE FACTS OF THIS CASE, WHERE THERE WAS A GUN IN THE POSSESSION, WHICH IS GOING TO BE THE GREATER OF THE? AND WHICH IS GOING TO BE THE LESSER? OR DO WE SIMPLIFY IT EVEN IN THAT CONTEXT, IN INSTRUCTING ON A LESSER INCLUDED. AND DEFENSE COUNSEL ONLY GETS AN INSTRUCTION IF IT REALLY IS A LESSER INCLUDED REGARDLESS OF SENTANTSING FACTORS? >> I BELIEVE THAT'S THE STANDARDS CASE PENDING BEFORE THIS COURT, AND IT'S -- I THINK THE COURT CAN DISTINGUISH THE SITUATION OF WHAT IS DEFINED AS A LESSER INCLUDED OFFENSE FOR PURPOSES OF ARRANGING THE VERDICT FORM AND EXPLAINING IT TO THE JURY BECAUSE IN THAT CONTEXT, THE JURY IS TOLD THAT EACH OF THE SUBSEQUENT OFFENSES IS A LESSER OFFENSE. AND SO I UNDERSTAND THEM THAT MAYBE ONE HAS TO LOOK AT, AT THE COLLATERAL OR THE ENHANCEMENT SENTENCING FACTORS THAT MIGHT AFFECT THE REAL OUTCOME THERE. I UNDERSTAND THAT ARGUMENT. BUT THIS COURT ALTHOUGH IT CAN DEFINE WHAT IT WANTS A LESSER INCLUDED OFFENSE TO BE, CAN'T REALLY DEFINE WHAT DOUBLE JEOPARDY MEANS. DOUBLE JEOPARDY IS ABOUT ELEMENTS. STARTING WITH BLOCKBUSTER -- BLOCKBURGER, AND ALL OF THE CASES THAT HAVE COME. BUT I WOULD DISTINGUISH THAT SITUATION WAS, WHICH HAS TO DO WITH A JURY PARDON QUESTION AND HOW THE VERDICT FORM SHOULD BE DESIGNED, WHICH, THERE'S SOME WIGGLE ROOM THERE, BUT FOR DOUBLE JEOPARDY IT'S ABOUT ELEMENTS. >> I'M JUST CONCERNED THAT IT'S GOING TO GET EVEN MORE CONFUSING BECAUSE NOW NOT ONLY TRIAL COURTS HAVE TO DISTINGUISH BETWEEN SENTENCING FACTORS AND INSTRUCT THE JURIES AND WHAT ARE LESSER INCLUDED WELL, FOR PURPOSES OF INSTRUCTING THE JURY IT'S THIS BUT FOR PURPOSES OF DOUBLE JEPPIED, IT'S SOMETHING ELSE. >>T WELL, THIS DECISION HERE, LET ME JUST POINT OUT, THE STATE AGREED WITH US AT SENTENCING, AT PAGE 2149 AT RECORD AT SENTENCING, THE STATE AGREE THAT GRAND THEFT SHOULD NOT BE INCLUDED IN THE SCORE SHEET AND THAT THERE SHOULD BE NO ADJUDICATION FOR THE GRAND THEFT. THE TRIAL COURT AGREED AND DID NOT ORDERLY PRONOUNCE THE SENTFERENCE GRAND THEFT. >> I'M ASKING YOU TO HELP US WITH OUR JURS PRUDENCE -- JURES PRUDENCE SO WE ARE NOT COMPLICATING TRIAL JUDGE'S LIVES AFTER BLAKELY. >> I THINK THE TWO ANALYSES DO NOT HAVE TO BE THE SAME BECAUSE FOR ORG -- I MEAN FOR DOUBLE JEOPARDY, ELEMENTS ARE WHAT CONTROL. THE LEGISLATURE HAS SAID, WHICH OFFENSES ARE MORE SERIOUS THAN OTHERS. FIRST DEGREE, SECOND DEGREE, THIRD DEGREE. >> MAYBE YOUR ANSWER TO JUSTICE CANTERO WOULD BE, MAYBE IT'S EASIER TO LOOK AT THE ELEMENTS AND LOOK AT ONE WITH LESSER ELEMENTS AND MAYBE THAN FIND OUT WHAT THE RANGE OF SENTENCES ARE? >> I THINK ALSO THE DEFENDANT HAS A RIGHT AT THE BEGINNING OF THE A CASE WHEN HE'S CHARGED TO UNDERSTAND THE SERIOUSNESS AND THE COMPARATIVE SERIOUSNESS OF THE CHARGES THAT ARE PENDING AGAINST HIM OR HER. AND WHAT WE ARE SAYING HERE IS THAT YOU CAN'T KNOW UNTIL THE END OF THE DAY WHEN THE HAS DECIDED WHICH SENTENCING ENHANCEMENTS IF RIGHT BE SEEKING WHEN ALL THESE COLLATERAL FACTORS ARE FACTORED IN, THAT'S WHEN YOU'RE GOING FIND OUT WHICH CHARGES ARE THE MOST SERIOUS? IT CANNOT BE THAT COMPLICATED. IT CANNOT BE THAT EVERY SCORE IS GOING TO HAVE TO BE RECOMPUTED IN VARIOUS DIFFERENT WAYS, PUT THIS ONE ON TOP, PUT THIS ONE ON TOP. IT CANNOT BE THAT COMPLICATED FOR DOUBLE JEOPARDY PURPOSES. >> WHAT DO YOU THINK IS REALLY WRONG WITH THE WAY THE SECOND DISTRICT DID IT? THE SECOND DISTRICT SAID WE ARE NOT GOING TO GO THROUGH THIS ANALYSIS. WE'RE REMANDING THIS TO THE TRIAL JUDGE. THE TRIAL JUDGE IS THE ONE WHO'S GOING TO HAVE TO REDO THE RESENTENCING SO LET THE TRIAL JUDGE DECIDE. WHICH OF THESE IS THE LESSER OFFENSE AND GO ON. >> WHAT IS WRONG WITH THAT APPROACH? >> BECAUSE THIS IS A QUESTION OF LAW. AND THAT IS WHY A DEFENDANT APPEALS TO THE DISTRICT COURT OF APPELLATE. RESOLVE THESE QUESTIONS OF LAW. REVERSE MY CONVICTIONS, RESOLVE THE JUDGMENT. I DON'T UNDERSTAND WHY A DISTRICT COURT WOULD REFER QUESTIONS OF LAW TO THE LOWER COURT. THAT'S WHAT I THINK IS WRONG HERE. I BELIEVE -- >> YOU'RE ALMOST OUT BUT WE'LL GIVE YOU A COUPLE OF MINUTES. >> THANK YOU. >> YES, MA'AM? >> MAY IT PLEASE THE COURT I'M ANNE WEANER AND I REPRESENT THE STATE. WE STAND BEFORE YOU WITH THE SAME QUESTIONS FIRST JUSTICE CANTERO THE CONFLICT JURISDICTION THAT WE ARE BEFORE THIS COURT ON, THERE WOULD NOT APPEAR TO BE A CONFLICT JURISDICTION IN THIS CASE, AND I WOULD CONTINUE TO ARGUE THAT. >> WOULD YOU TAKE ON THE VERY LAST COMMENTS OF YOUR OPPONENT HERE BECAUSE I'M HAVING GREAT DEAL OF DIFFICULTY WITH THE CONCEPT OF TAKING WHAT I PERCEIVE TO BE AN ISSUE OF LAW AND DECIDING THIS AND HAVING IT TURP INTO AN ISSUE OF FACT BACK IN THE TRIAL COURT BY THIS SKEP OF FIGURING OUT -- SEEM OF FIGGING OUT IF WE DO IT THIS WAY WE CAN FIND A MORE SEEIOUS SENTENCE BUT IF WE DO IT THIS WAY, IT WILL TURN OUT THAT WE'VE GOT MORE LEGAL CHAMELEONS IN OUR SYSTEM THAN JUST HOMESTEAD. SO, HELP ME BECAUSE THAT'S VERY APPEALING TO ME. THAT IS THAT THE COURTS, AND ESPECIALLY THE APPEALS COURTS HAVE AN OBLIGATION TO, TO TELL THE TRIAL COURTS WHAT THE LAW IS, AND CLARIFY THAT SO THAT EVERYBODY IS ON THE SAME PAGE, AND, AND, THAT THIS IS A CONCEPT WHICH SHOULD BE DECIDED AS A MATTER OF LAW, AND THEN WHATEVER THE, THE, CONSEQUENCES ARE, AFTER THAT, YOU KNOW, SO BE IT. NOT THE OTHER WAY AROUND. THAT -- >> YOUR HONOR. >> FIGURING OUT WHAU THE GREATER -- THAT IF YOU LET US DO IT THIS WAY, WE ACTUALLY CAN PUNISH THE DEFENDANT MORE STRONGLY. >> YOUR HONOR, IN THE REALM OF REALITY AS IT STANDS TODAY, IN SENTENCING, OUR LEGISLATURE HAS SEEN FIT TO INCREASE PENALTIES TO ENHANCEMENT. WE HAVE SPECIAL ENHANCEMENTS WHICH ARE SOMETIMES DISCRETIONARY AND SOMETIMES ARE NOT. THAT COME INTO PLAY BASED ON THE INDIVIDUAL THAT STANDS BEFORE THEM NOT SO MUCH AS THE CRIME THAT THEY ARE COMMITTING. >> BUT ISN'T THAT THE TAIL WAGGING THE DOG THEN? IN OTHER WORDS, IF WE GO INTO ALL THOSE NUANCES OF SENTENCING, AND YOU KNOW, BY THE WAY, WE CAN ADD AN EXTRA FEW YEARS IF WE FIND THAT THESE CIRCUMSTANCES OCCURRED OR OR WHATEVER AND WE'RE LETTING THAT DISTURB WHAT IS A TRADITION ISSUE OF LAW. >> YOUR HONOR, WITH ALL DUE RESPECT, RIGHT NOW WITH THIS PARTICULAR CASE BEFORE THE COURT, AND THE PROBLEM WITH THIS PARTICULAR CASE BEFORE THE COURT IS IT IS A VERY SMALL NICHE KIND OF ISSUE WITH A DOUBLE JEOPARDY ISSUE WHERE THE LEGISLATURE CREATE AN UMBRELLA OFFENSE TO INCREASE THE PENALTIES ON A TRADITION -- ON GRAND THEFT. IN FACT, IT WAS REFERRED TO IN ONE OF THE OPINIONS I BELIEVE IT WAS CHERRY OUT OF THE SECOND ZRIKT AS AGGRAVATED THEFT WHAT THE LEGISLATURE INTENDED TO PUNISH SOMEBODY IMPOSE A GREATER PUNISHMENT FOR -- >> FOR THE ORGANIZED FRAUD. >> FOR THE ORGINIZED FRAUD BASED ON THEIR REPEATED GRAND THEFT. >> SO WHY IS IT -- IF THE LEGISLATURE INTENDED TO ORGANIZE FRAUD TO BE THE UMBRELLA SENTENCE, SO WHY ISN'T THAT THE GREATER OFFENSE? >> BECAUSE IT DEPENDS -- YOU NEED ONLY TWO GRAND THEFTS TO SHOW THE PATTERN OF ACTIVITY FOR ORGANIZED FRAUD. IN THIS CASE -- IT'S USUALLY CHARGED THIS WAY BUT IN THIS CASE WE HAVE SIX GRAND THEFTS AND DUE TO A MISTAKE OF FACT IN THE SECOND DISTRICT OPINION BUT IF WE GO ON THE SECOND DISTRICT ASSUMPTION THAT THEY WERE ALL THIRD DEGREE FELONIES, THE PRESWRUMTION WAS ANYTHING UNDER THE UMBRELLA WOULD BE LESSER BUT IN THIS CASE AND GOING FORWARD NOT UNDER THE 1994 GUIDELINES SO MUCH BUT, THEY ARE THIRD-DEGREE FELONIES. EACH ONE HAS THE POTENTIAL PENALTY OF FIVE YEARS IN PRISON. THE FIRST DEGREE FELONY -- >> EVEN THOUGH THERE WAS A POTENTIAL FIVE YEARS FOR EACH ONE OF THOSE, UNDER THE GUIDELINES APPLICABLE TO THIS, HE WOULD NOT GET FIVE YEARS. FOR EACH OF THEM. >> NO, YOUR HONOR. >> OKAY. SO I'M -- I'M HAVING A HARD TIME WHEN YOU TALK ABOUT ABOUT UMBRELLA SENTENCE THAT THAT WOULDN'T REALLY ANSWER THE QUESTION IN THIS CASE. >> IT WOULD NOT ANSWER THE QUESTION IN THIS CASE PRIMARILY BECAUSE THE, THE IDEAS IN THE WHOLE DOUBLE JEOPARDY SCHEME, YOUR HONOR, WITH ALL DUE RESPECT, IS THAT THE DEFENDANT STANDS BEFORE THE COURT AND IS NOT SUFFICIENT TO THE EVIDENCE ON EITHER COUNT STANDS BEFORE THE COURT CHARGED WITH TWO CRIMES THAT CAN'T STAND AT THE SAME TIME. WE NEED TO PUNISH FOR ONE. NOW, WHEN WE LOOK TO WHAT THE LESSER OFFENSE, THE IDEA WAS THAT THE LESSER OFFENSE WOULD HAVE THE LESSER PENALTY. AND I THINK THERE WAS A PRESWRUMTION, AN ASSUMPTION THAT THE STATE WOULD ALWAYS SEEK THE GREATER -- TO, YOU KNOW, SENTENCE ON THE GREATER OFFENSE BECAUSE THAT WOULD IMPOSE THE GREATER PENALTY. BUT IN THIS PARTICULAR CASE, THAT'S NOT TRUE. >> BUT IF WE TAKE THIS CASE, WHEN WE SEND THIS BACK TO THE TRIAL JUDGE AND TELL THE TRIAL JUDGE THAT THE GRAND THEFT ARE THE GREATER OFFENSES, LET'S ASSUME THAT THE TRIAL JUDGE DECIDED THAT, WHAT IS THE PENALTY THAT, THAT TRIAL JUDGE WOULD IMPOSE FOR THOSE GRAND THEFTS? >> THE GRAND THEFT WOULD PROBABLY STAY AT THE FIVE-YEAR SENT SNONS SO WITH -IF WE WENT BACK AND THE TRIAL JUDGE DECIDED THAT THET ORGANIZEDS FRAUD IS THE GREATER OFFENSE, WHAT IS THE PENALTY THAT? >> FIVE YEARS. >> SO IN THIS CASE, IT REALLY -- IT DOESN'T MAKE ANY DIFFERENCE? >> IT MAKES NO DIFFERENCE. >> ONE OF THOSE -- SO THERE'S GOT TO BE SOME KIND OF ORGANIZED WAY TO DO THIS. TRIAL JUDGES JUST HAVE -- WHETHER OR NOT ONE OR THE OTHER IS A GREATER OFFENSE IN TERMS OF -- BASED ON, OKAY, IF I TAKE THE FIVE OFFENSES, I CAN GIVE THEM THIS. IF I TAKE THE ONE OFFENSE, I CAN GIVE HIM THIS S. THAT THE RIGHT WAY TO DECIDE THIS? >> YOUR HONOR, WITH ALL DUE RESPECT, THERE'S NO REASON WHY THAT HAS TO BE THE SENTENCE. WE JUST KNOW THAT ONE HAS TO BE VACATED. WHY DOES IT HAVE TO BE THE LESSER? WHY DOES IT HAVE TO BE THE GREATR? >> WHY ISN'T THE ANSWER TO YOUR DILEMMA PROSECUTORIAL DISCRETION? AND THAT IS THAT IF THE PROSECUTION KNOWS THEY'VE GOT A GOOD CASE TO PROVE A NUMBER OF THE GRAND THEFTS, AND THEY KNOW COMING IN THAT, BOY, THIS IS THE WAY WE CAN GET A GREATER PENALTY, AND GET THIS PERSON OFF THE STREETS OR WHATEVER, THAT, THAT'S THE WAY WE'LL CHARGE THEM. THAT IS, WE'RE GOING TO CHARGE THEM REALISTICALLY IN THE WAY THAT WE HAVING STUDIED, YOU KNOW, EACH OF THESE OFFENSES AND EVERYTHING, AND WHAT THE SENTENCING ELEMENTS OR CONSIDERATIONERIZE ARE, AND SO, IT CAN STILL ACCOMPLISH WHAT YOU'RE TALKING ABOUT BY USE OF PROSECUTORIAL DISCRETION, AND BOY, THE, YOU KNOW, THE DEFENDANT CAN'T COMPLAIN ABOUT THAT. THAT'S THE LAW ALLOWED THE -- >> CLAIMANT EITHER WAY. WE HAVE SUFFICIENT EVIDENCE TO PROVE ANY OF THIS, BUT IN THE -- WHAT WE DID WAS CHARGE SIX INDIVIDUAL GRAND THEFTS BASED ON INDIVIDUAL VICTIMS. WE THEN CHARGED THE PREDICATE ACT, THE SAME SIX, ON THE ORGANIZEDS FRAUD. WHEN WE -- IF WE HAD LOST ONE OF OUR GRAND THEFTS OR TWO OR THREE OF THE GRAND THEFTS, IF THE JURY WERE TO HAVE FOUND THAT FOUR OF THOSE GRAND THESTSS WERE INSUFFICIENT, BUT FOUND TWO WERE STILL SUFFICIENT, WE STILL THE ORGANIZED FRAUD, YOUR HONOR, WITH ALL DUE RESPECT. >> NOW WE'RE TAKING ABOUT HAVING OUR CAKE BUT EATING IT TOO. >> WELL, YOUR HONOR, IT'S STILL THE SAME OFFENSE. >> NOT -- TO FOLLOW THE LAW. >> SEPARATE ORGANIZED FRAUD. >> NOT IF THIS IS AN ISSUE OF LAW. >> MY CONCERN IS THAT ALTHOUGH I DON'T SEE THE CONSTITUTIONAL VIGS -- VIOLATION AND I THINK MS. PAUL CONCEDED THAT, SENTANTSING HAS BECOME CLEARLY, I WAS TELLING JUSTICE CONTAROT TODAY, HE COMPARED IT TOO A FAMILY TREE, BUT A DYSFUNCTIONAL FAMILY TREE UNDER BLAMELY. BUT WHAT IS THE GUIDE THE TRIAL COURT IN WHICH OFFENSE IS VACATED. HERE TO FOR WE HAVE HAD A SIMPLE THING FOR THE TRIAL COURTS TO FOLLOW. JUST THIS NICHE OF SENTANTSING, WHICH IS YOU VACATE THE LESSER OFFENSE, WHICH IS THE ONE THAT HAS THE LESSER ELEMENTS, INWE START SAYING, WELL, THE TRIAL JUDGE IN THIS CASE COULD VACATE THE, YOU KNOW, ORGANIZED FRAUD IN OTHER ANOTHER CASE, THE THEFT, IT SEEMS TO ME THAT WE'RE GOING TO HAVE A DISPARITY JUST ON THIS ISSUE IN SENTENCING, THAT'S GOING TO BE VERY HARD FOR THE APPELLATE COURTS TO APPLY A STANDARD RULE OF LAW. SO THAT'S NOW MY CONCERN IS THAT WE'RE NOT REALLY GOING TO HAVE AT LEAST, ON THIS THIS, A CONSISTENT RULE OF LAW, AND WE'RE GOING TO JUST END UP CREATING MORE CONFUSION ON THIS. WHATS THERE ARE ANSWER TO THAT? >> THE ANSWER IS, YOUR HONOR, THAT THERE IS NO NEED FOR THE APPELLATE COURTS TO DETERMINE THE LESSER OR GREATER IN THEIR RULING. WHERE WE HAVE -- THERE'S NO SUFFICIENCY OF THE EVIDENCE. IT IS NOT A LESSER INCLUDED OFFENSE. IN THOSE CASES IT WOULD BE AN OBVIOUS ONE BUT IN CASES SUCH AS THIS, WHY DOES THE APPELLATE COURT HAVE TO ENGAGE IN THIS AT ALL? BECAUSE THERE ARE TOO MANY FACTUAL ISSUES AND THE APPELLATE COURT'S ROLE IS NOT ONE TO MAKE FACTS AND THAT'S WHERE WE'RE PUTTING THE APPELLATE COURT. WHY IS THE APPELLATE COURT GOING TO SIT ON ANY CASE AND DETERMINE WHICH ONE NEEDS TO BE VACATED? 92 BECAUSE WHAT MS. PAUL IS ADVOCATING FOR AND IF THERE'S A CONFLICT WHY THERE'S A CONFLICT IS BECAUSE BEFORE THIS IT WAS A PURE QUESTION OF LAW, WHICH IS YOU VACATE THE OFFENSE WHICH HAS THE LESSER ELEMENTS, WHICH IS THE, THE DOUBLE JEOPARDY VIOLATION. AND THAT'S THE END OF IT. THAT'S A PRETTY -- ONE THAT EXISTS WHICH DOESN'T EXIST VERY OFTEN UNDER BLOCKBURGER. MOST OF THEM, THERE ARE DIFFERENT OFFENSES. YOU VACATE THE ONE THAT'S LESSER. THAT'S TO ME A PRETTY SIMPLE RULE OF LAW AND WE ARE JUST GOING TO COMPLICATE THIS ONE AREA WELL THEY CAN PICK IT ONCE THEY FIGURING OUT WHAT THE SENTENCING POTENTIALERIZE FOR EACH ONE. I -- SO THAT'S -- SO WE'RE NOT ASKING TRIAL -- WE'RE SAYING, SHOULDN'T THE APPELLATE COURT JUST KEEP THAT RULE OF LAW THAT'S EXISTED SAID UP UNTIL THIS TIME. >> BUT IF WE'RE LOOKING TO THE LESSER, I GUESS THEN WE WOULD GO BACK, AND WE ARE STANDER HERE ON THE COAT TAILS OF SAUNDERS GOING FORWARD TRYING TO FIGURE OUT WHAT THE LESSER MEANS, DETERMINING THE ISSUE OF LESSER. >> STANDARDS INCLUDE LESSER INCLUDED SO LET'S TRY TO STICK TO THAT THIS ONE SAYS THE LESSER, WE'RE TALKING ABOUT IS THE ONE THAT HAS THE LESS ELEMENTS. DO YOU COMPARE AND ISN'T THE ISSUE THE CONFLICT ISSUE, DO YOU QUM PAIR FOR A LESSER FOR DOUBLE JEOPARDY, VIOLATION, DO YOU COMPARE THE ELEMENTS OR DO YOU COMPARE THE PUNISHMENTS? ISN'T THAT THE QUESTION WE HAVE TO DECIDE? >> THE QUESTION S WHETHER WE DECIDE, I WOULD SAY WE GO TO THE PUNISHMENT, THE POTENTIAL -- >> BUT THAT'S -- ANDMIST POHL IS SAYING WE GO TO THE ELEMENTS SO WE HAVE A CRYSTAL CLEAR DICHOTOMY THE STATE IS SAYING LEAVING IT TO THE TRIAL COURTS TO SAY WHICH IS THE HARLING RGSER JUDGMENT AND MS. POHL IS SAYING KEEP IT SIMP AND COMPARE IT TO THE ELEMENTS. IS THAT IN THE NUTSHELL WHERE YOU DISAGREE WITH MS. POHL. >> YES, YOUR HONOR. >> WELL LET ME -- AS I READ YOUR BRIEFS, THE, THE ULTIMATE POSITION OF THE STATE IS THAT IN THIS SITUATION, THE DECISION REALLY SHOULD BE MADE BY THE STATE'S ATTORNEY. >> YES, YOUR HONOR. >> AS TO -- NOW I UNDERSTAND WHY THE STATE'S ATTORNEY WOULD CHARNEL ALL OF THESE AND GO FORWARD AND PROVE THEM. BUT ONCE IT COMES BACK AND AS YOU HAVE CONCEDED THAT THE THERE WOULD BE A DOUBLE JEOPARDY VIOLATION TO ALLOW ALL OF THESE TO STANDS. THAT ISN'T THE STATE'S ATTORNEY STILL IN CHARGE OF WHICH ONES CAN GO FORWARD AND -- >> IF THIS HAD BEEN CAUGHT AT THE TRIAL LEVEL BEFORE SENTENCING, THERE WOULD'VE BEEN NO DOUBT THAT THE STATE ATTORNEY'S OFFICE WOULD'VE BEEN THE BUDDY TO DECIDE AND IT IS THE STATE'S POSITION THAT IN RETURNING IT TO THAT POSITION BEFORE SENTENCING, WE SHOULD GO BACK TO THE STATE'S ATTORNEYS OFFICE AND ALLOW THEIR INPUT ON THIS BECAUSE IT IS A FACTUAL MATTER. WE HAVE AN INDIVIDUAL THAT IS ELEBLTHED IN EACH COMMUNITY THAT STANDS FOR THE VALUES OF EACH COMMUNITIES AND THEY'RE THE ONES THAT CHARGE THESE CRIMES AND THEY'RE THE ONES THAT KNOW IN SAESH CASES SUCH AS THIS ONE, RESTITUTION IS A MAIN CONCERN. >> IN REALITY, IN ALMOST EVERY INSTANCE, THE STATE'S ATTORNEYS ARE STILL -- THE CAPTAIN OF THE SHIP. AND THIS TYPE OF SITUATION -- >> YOUR HONOR, BECAUSE BACK TO THE TRIAL COURT, THE STATE'S ATTORNEY'S OFFICE WILL HAVE A SAY IN -- >> WELL, BUT, AS YOU JUST SAID, WHEN THE JURY COMES BACK,. >> RIGHT. >> THE STATE'S ATTORNEY CAN, CAN, CAN, DIRECT. WHAT'S GOING TO TAPPEN AT THAT POINT. >> YES, YOUR HONOR. >> WELL, THEN THAT'S --, AND THEN THAT'S A MORE HONEST ANSWER TO THE WHAT WILL HAPPEN IN THE FUTURE, BUT WHAT YOU'VE BEEN SAYING IS LET THE TRIAL JUDGE DECIDE AND SO LET'S GET BACK TO WHERE WE ARE HERE, WHICH IS NOBODY'S SAYING THAT IN A NORMAL CASE YOU CAN'T DISMISS WHATEVER CHARGE YOU WANT TO DISMISS. BUT IF IT GETS TO WHERE, WHERE THE JUDGE IS DECIDING THE ISSUE, THE JUDGE OUGHT TO HAVE SOME CLEAR CUT GUIDELINES AND WHY NOT STICK TO THE COMPARISON OF THE ELEMENTS? SO YOU STILL HAVE IN PROBABLY 99% OF THE SITUATIONS THIS -- YOU KNOW, THIS -- THE STATE ATTORNEY WILL HAVE THE ULTIMATE -- THE SAY. >> YES, YOUR HONOR, ULTIMATELY, THE STATE'S ATTORNEY WILL MORE THAN LIKELY BECAUSE THESE DO GET CAUGHT PRIMARILY BEFORE THEY GO TO SENTENCING. WHEN YOU GET THE DOUBLE JEOPARDY ISSUES AND THEY SHOULD -- THIS SHOULD HAVE BEEN CAUGHT BEFORE IT WENT TO SENTENCING BUT -- >> MS. POHL SAID, MAYBE I MISUNDERSTOOD HER ARGUMENT BUT I THOUGHT SHE SAID AT ONE POINT THAT THE STATE SAID THAT THESE GRAND THEFTS WERE THE ONES THAT DID NOT GET SENTENCED ON? >> THE IDEA WAS THAT IT WAS -- IT WAS GOING TO RUN FIVE YEARS CONCURRENT ON THE ORGANIZED FRAUD -- IT WAS ALL GOING CONCURRENT WITH 15-YEAR SENTENCE ON RACKETEERING AND IT WENT -- WHEN WE GOT TO THAT POINT, THE STATE ATTORNEY'S OFFICE UNDER THE GUIDELINES WE KNEW WE HAD A FIVE-YEAR -- IT RAN FIVE YEARS CONCURRENT FOR ALL SEVEN OFFENSES. IT -- IT WASN'T A -- THERE WAS NO -- THERE WASN'T GOING TO BE ANY CHANGE IN THE SENTENCING BASED ON THE GUIDELINES BECAUSE THIS WAS A SCORE SHEET -- I MEAN A GUIDELINES ISSUE. BECAUSE OF THE BAIT OF THE OFFENSES. BUT IN THE FUTURE THEY COULD RUN THESE CONCURRENTLY. CONSECUTIVELY, AND THIS -- IF YOU LOOK TO THAT, THEN WE HAD A 40-YEAR SENTENCE ON -- FIVE-SECOND DEGREE FELONIES, ONE -- I MEAN FIVE THIRD DEGREE FELONIES ONE SECOND DEGREE FELONY UNDER THE GRAND THEFT WHICH POSED A POTENTIAL PENALTY OF 40 YEARS VERSUS THE ONE -- >> BACK TO WHAT WE WERE JUST TALKING ABOUT, IF THAT WERE -- IF THE STATE THOUGHT THAT THEY WERE GOING TO GET CONSECUTIVE, THEN THEY WOULD -- AT THAT POINT. >> YES, YOUR HONOR, AND IN THIS CASE, WE HAD THE RACKETEERING, THE RICO OFFENSE, THE JURY CAME BACK GUILTY ON THE RICO AND HE WAS SENTENCED UPWARD DEPARTURE ON THAT SO WHAT -- >> WHAT IS HIS SENTENCE? >> 15 YEARS FOR THE RACKETEERING AND THE FIVE YEARS FOR -- WELL, THE MORTGAGE FRAUDS WERE REVERSED ON THE CABRERA ISSUE AND THE JURY INSTRUCTIONS AND THE CONSPIRACY WAS REVERSED. SO WHAT WE HAD WERE SIX PREDICATE ACTS OF MORTGAGE FRAUD AND SIX PREDICATE ACTS OF GRAND THEFT FOR THE ORGANIZED FRAD AND WHEN WE LOST THE MORTGAGE FRAUD WE HAD THE GRAND THEFT STILL VIABLE AT THAT TIME. WE HAD A -- AFTER THE NOTICE OF APPEAL WAS FILED, THE TRIAL COURT DID ASSIGN, IF WHAT -- -- I'M -- I'M HAVING A DAY. THE -- >> THAT'S ALL RIGHT WE ALL DO AT TIMES. >> THE VICTIM WAS THERE. >> EVERY NOW AND THEN YOUR BRAIN -- >> I'M JUST THINKING WHAT THE PUBLIC MUST THINKING TO LISTENING -- HOW COMP LJTED WE'VE MADE THING -- COMPLICATED WE'VE MADE THINGS. SO HE'S GOT A 15 YEAR SENTENCE. >> 15 YEARS. >> BUT FIVE YEARS ON EVERYTHING, AND MORE ON THE RACKETEER FIGURE IT GOES -- >> THE RACKETEERING IS STILL -- IT HAS BEEN SENTENCED AND AFFIRMED AND WE HAVE -- WHAT WE'RE DOING IS GRAND THEFT FOR INDIVIDUAL VICTIMS AND ORGANIZED FRAUD WITH THE REMAINING FIVE -- I MEAN, WITH THE REMAINING SIX GRAND THEFTS. >> DOES IT MAKE ANY DIFFERENCE IN THIS CASE AS CHARGED BY THE STATE THAT YOUR STATE COULDPUSC DONE IT DIFFERENT WAYS BUT AS FAR AS THE ORG UNDER FRAUD, THE UMBRELLA OFFENSE, THE PREDICATE OFFENSES LISTED UNDER THAT INCLUDED ALL THE MORTGAGE FRAUD AND ALL THE GRAND THEFT CHARGES. >> YES, YOUR HONOR. >> SO THE UMBRELLA WAS THAT -- THAT WAS BUILT BY THE STATE IN ITS INFORMATION INCLUDED ALL OF THESE OFFENSES? >> YES, YOUR HONOR. >> AND SO THE, THE FRAUDULENT SCHEME WAS WHATEVER THE JURY FOUND AS TO THOSE INDEPENDENT FRAUDS AND THOSE INDEPENDENT GRAND THEFTS. >> RIGHT, AND THEY WERE NOT ASKED TO MAKE ANY INDIVIDUAL FINDINGS AS TO WHICH VICTIMS THEY WERE FINDING, YOU KNOW -- THEY WERE LISTED ALL THE PREDICATE ACTS SO WE HAVE ALL THE VICTIMS LISTED AND ONE OF OUR, OUR CONCERNS IN THIS PARTICULAR CASE, THE UNDERLYING FACTS IS MOST OF OUR VICTIMS WERE ELDERLY AND SOME OF THEM DIED DURING THE COURSE OF THIS. AND WE DID NOT KNOW -- UNFORTUNATELY, THEY WERE PRAYING ON ELDERLY VICTIMS. THIS WAS A HOME IMPROVEMENT THING WHERE THEY HAD TELEMARKETERS WHO WERE SPECIFICALLY TARGETING ELDERLY WIDOW AND WHEN WE WENT TO TRIAL WE DIDN'T KNOW WHICH ONE OF OUR VICTIMS WOULD ACTUALLY BE PRESENT FOR THIS AND WHEN WE WERE GOING FORWARD WITH IT, WE DIDN'T KNOW HOW MANY WOULD STILL BE ABLE TO TESTIFY AT TRIAL. SO WE DID NOT KNOW WHICH COUNTS WE WOULD BE ABLE TO PROVE AT TRIAL. IT WAS A VERY DIFFICULT, IT WAS A LONG CASE. AND WE HAD, LIKE, LIKE I SAID, THE VICTIMS WERE OF VARIOUS DEGREES OF AGE AND INFIRMITY. AND SOME OF THEM ARE NO LONGER WITH US. SO WHEN WE LOOK TO THE COLLATERAL CONSEQUENCES OF REPAYING OUR VICTIMS, THAT WOULD'VE BEEN A DISCRETIONARY, YOU KNOW, ONE OF THE REASONS WE LOOK TO CHARGING THIS WAY WAS BECAUSE OF THE NUMBERS THAT WE HAD. AND YOU HAD NO FURTHER QUESTIONS. >> OKAY. THANK YOU VERY MUCH. MR. POHL, GOING TO GIVE YOU A COUPLE OF MINUTES. YOU ARE BEYOND YOUR TIME, BUT, OUR ASSISTANCE, I THINK YOU LED YOU BEYOND SO LET ME GIVE YOU A COUPLE OF MINUTES. >> THANK YOU. I WOULD LIKE TO CLARIFY A COUPLE OF THINGS THAT WERE SAID, IN INFORMATION, COUNT 16, WHICH IS ORGANIZED FRAUD COUNT DOES NOT LIST A SERIES OF PREDICATE AX. IT'S JUST A SINGLE PARAGRAPH THAT TALKS ABOUT SCHEME TO DEFRAUD VARIOUS INDIVIDUALS AND TO OBTAIN PROPERTY FROM THEM SO IT DOESN'T HAVE ENUMMERATED PREDICATE ACTS. ALSO, AT SENTENCING, THE STATE DID ELECT TO KEEP THE ORGANIZED FRAUD AND TO NOT HAVE AN ADJUDICATION IMPOSED ON GRAND THEFT AND I WOULD REFER THE COURT TO VOLUME 12 OF THE RECORD 2849 WHERE THE PROSECUTOR SAID WE'VE TAKEN THAT DOUBLE JEOPARDY ISSUE INTO ACCOUNT, QOETED QUOTE, WE TOOK THE GRAND THEFT CHARGES OUT OF THE SCORE SHEET, AND THAT WAS THE UNDERSTANDING, AT SENTANCING, THAT THE GRAND THEFT WOULD NOT BE PART OF THE SENTENCE OF THE PAGE. >> SO THE -- DECIDED TO SENTENCE ON THOSE ANYWAY? >> INI THINK THERE WAS JUST AN ERROR WHERE -- WHEN THE WRITTEN JUDGMENT WAS PREPARED BECAUSE THE ORAL PRONOUNCEMENT OF THE SENT TLNS WAS NO PRONOUNCEMENT OF SENTANTS ON THE GRAND THEFT. >> AND SO REALLY THIS IS A VERY UNIQUE SITUATION. THAT WE'RE CONFRONTED WITH. >> IT IS, AND THAT TAKES ME WHAT TO WHAT I WOULD JUST LIKE TO MAKE MY FINAL ARGUMENT AND THAT IS ONE CANNOT HAVE CONFIDENCE IN THE REMAINING CONVICTIONS IN THIS CASE. THIS WAS A CASE THAT OVER 1,000 PAGES OF EXHIBITS WITH, I DON'T KNOW EXACTLY HOW LONG THE INFORMATION IS BUT IT MUST BE 20 PAEJS LONG WHICH THE JUDGE DID NOT EVEN READ THE RACKETEERING INSTRUCTION TO THE JURY. HE JUST HANDED HIM 4 PAGES OF SINGLE SPACED TEXT AND SAYS YOU CAN READ THAT. I CAN'T UNDERSTAND THE RACKETEERING LAW. >> BUT IS THE RACKETEERING ISSUE BEFORE THE COURT? WE'RE HERE ON THE ISSUES OF THE GRAND THEFT AND ORGANIZED FRAUD AND I DON'T SEE ANY ARGUMENT BEING MADE THAT THERE WAS SOMETHING WRONG WITH THE RACKETEERING. >> I DIDN'T HAVE AN OPPORTUNITY BEFORE ALTHOUGH IT IS IN OUR BRIEF AND THE COURT ALLOWS D US TO BRIEF ISSUES AND IN THE JURISDICTIONAL BRIEF WE RAISED BOTH POINTS. INITIALLY WE HAD A VERY TECHNICAL ARGUMENT THAT THE RACKETEERING CANNOT SURVIVE WHILE AT THE MOMENT THE JUDGE -- OR THE COURT BELOW HAS REVERSED ALL ROST PREDICATE TACTS. AND -- ALL OF THE PREDCONNECT ACTS SO THAT WAS OUR TECHNICAL ARGUMENT. BUT IF YOU LOOK AT THIS, IT WAS THAT ONE OF THE MOST COMPLICATED SCENARIOS THAT THE COURT BELOW SAID AT LEAST WITH REGARD TO THE MORTGAGE FRAUD THAT THE JURY WAS HOPELESSLY -- WOULD'VE BEEN HOPELESSLY CONFUSED LISTENING TO THE INSTRUCTIONS AND I THINK THAT'S TRUE FOR VIRTUALLY EVERY OFFENSE THAT CONSPIRACY HAS BEEN REVERSED FOR NEW TRIAL, THE MORTGAGE FRAUD HAS BEEN REVERSED FOR A NEW TRIAL, AND I RESPECTFULLY SUGGEST THAT THE RACKETEERING SHOULD BE REVERSED. >> AT TIMES OUR LAW IS QUITE COMPLICATED IS IT NOT? >> THANK YOU I THINK YOU'VE EXHAUSTED YOUR TIME. WE THANK BOTH OF YOU FOR YOUR ARGUMENTS THIS MORNING AND WE WILL TAKE THE CASE FOR CONSIDERATION. THANK YOU VERY MUCH.