DENIED!

(For background on Zoom FVOP’s, see JAABLOG “ALERT!” … )

On Behalf Of Daniel Tibbitt
Sent: Wednesday, December 2, 2020 1:19 PM
To: facdl-miami@googlegroups.com
Subject: FACDL-Miami 3rd DCA denial of writ on Zoom PVH’s

Listmates,

Today the Third District issued their decision in our writ seeking to stop probation violation hearings from going forward over Zoom.  Judges Emas and Hendon ruled against us and found that whatever constitutional issues were present in forcing a defendant to go to a PVH over video and separate from his attorney were outweighed by the special circumstances of the pandemic.  Judge Gordo concurred in the denial on the ground that she didn’t find a writ was the appropriate remedy, although she suggested that she did not agree with the constitutional conclusion.  Those of us who were involved in the writ will be discussing possible next steps for further litigation on this issue later this week, but for now this decision from the Third DCA will be seen by the Eleventh Circuit judiciary as a green light to hold PVH’s over Zoom, so our members should be aware of that.  I will update you if there is further relevant developments on this, and for now if you have a case where a judge is scheduling a PVH over Zoom please let me know so that, as the point person for this effort for FACDL-Miami, I can continue to keep track.  The Third DCA decision is attached.  If you have questions feel free to reach out.

Best,

Daniel Tibbitt, Esq.

ORDER DENYING WRIT OF PROHIBITION

READY FOR FVOP?

17th Circuit AO (11/30/20) “CASE RESOLUTION AND CASE MANAGEMENT DURING COVID-19”

38 thoughts on “DENIED!”

  1. 3

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    Wednesday, December 02, 2020
    PVH CAN ZOOM
    It’s a win for Miami Judge Miguel De La O and a loss for FACDL and attorney Dan Tibbitt who did a great job, for free, and who usually wins his appeals. No shame in taking this loss on what was an uphill battle.

    On the surface it seems like an easy appeal and an easy opinion.

    But then Judge Emas, writing for the majority, wades into dangerous waters. He calls Due Process a flexible concept: “The concept of due process is not rigid or static, but flexible and dynamic.”

    Uhho.

    Federalist Society members pick up your pitchforks. Calling a constitutional concept “flexible” is like calling the Constitution a living and breathing document- which are liberal code words for interpreting the Constitution based on the personal opinions of liberal judges, instead of what can discerned about the intentions of the dead farmers who wrote our Constitution.

    What happened to just calling balls and strikes? What one judge bends due process concepts to reach a decision in one direction, another judge can bend in another direction. Judge Emas- Appellate Yogi.

    As much as we respect Judge Emas, his concept of Due Process and his decision is dangerous. We do not wish to place the concept of Due Process into the hands of judicial sculptors who will mold Constitutional protections like a lump of wet clay on a potters wheel.

    The rest of the opinion reads like a Covid Mea Culpa (no blogger turns an alliterative phrase like we do). We have a pandemic (despite Governor no Mask saying we don’t). Probation Violation Hearings are not like trials. They are afforded less protections. The rules of criminal procedure allow for electronic appearances, and thus appearing electronically is just like appearing in court, which means, especially during a pandemic, the right to be present in court is satisfied when Judge De la O orders you to do a PVH on Zoom. We will not take Judge Emas to task for his recitation of PVH case law. The law is horrible. Judges can and do revoke probation and sentence defendants to life or near life sentences on the flimsiest of evidence, but this was not the case to fix that.

    For those criminal practitioners who are waiting smugly for jury trials to resume and then intend to drop dozens of speedy trial demands, you are warned. The 3RD DCA has little tolerance for Constitutional rights in the time of a pandemic. When your judge tolls speedies because she is overwhelmed with trials and finds the tolling to be an exceptional circumstance, good luck with your writ to the 3rd. We will give your the result now: DENIED.

    Speaking of Writs, Judge Gordo concurred in the result only, finding that a writ was not the appropriate remedy. She may be right. “A writ of prohibition is an appropriate, if extraordinary, remedy that lies when a lower court is without jurisdiction or is attempting to act in excess of its jurisdiction.” Durham v. Butler, 89 So. 3d 1023, 1025 (Fla. 3d DCA 2012).

    This case does not seem to be addressable on a writ of prohibition. But Judge Gordo had bigger conservative fish to fry.

    Her Federalist Society roots showing, having obviously meditated before a picture of Justice Scalia, Judge Gordo took a shot at the majority opinion. It’s a concurrence sure to warm the hearts of conservative Governors looking for a Supreme Court Justice:

    Thus, I decline to join the majority’s analysis, particularly to the extent that it negates a defendant’s constitutional rights by balancing them with the competing interests of the temporary pandemic. “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.” Ex Parte Milligan, 71 U.S. 2, 120–21 (1866)

    No balancing of flexible Constitutional concepts for Judge Gordo. Just balls and strikes please. Due Process means what the framers said it means, and it doesn’t mean anything more or less in a pandemic.

    http://justicebuilding.blogspot.com/2020/12/pvh-can-zoom.html

  2. 6

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    The opinion and the Tuter AO make it seem like they know what’s coming next Spring. It’ll be a glorious mess of biblical proportions-a cataclysm end bang borne of overcharging and mass incarceration that’s been building for 50 years. I have an idea-stop prosecuting and drop the huge amount of nickel and dime cases and petty vops clogging dockets-that’s a better way to clear out the system. Less cases, less Judges, less waste, and use the savings for tons more good police officers to put out on the streets who know how to handle and diffuse situations without making so many arrests.

  3. 6

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    This ain’t over folks. They declined to address the issue of right to counsel because it wasn’t ripe. Just wait till the hearing when the defendant insists every 2 minutes to go into a breakout room and then tech issues prevents meaningful communication between attorney and client. Maybe Tuter wants to wait until that bridge is crossed before scheduling VOP’s that still may be a problem. Oh, yeah they also didn’t address the issue of presence at the sentencing portion of the VOP, so even if found in violation it may be hard to empty the jail if the defendant needs to be present at the sentencing. This opinion was a punt, too many issues left unresolved.

  4. 1

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    FROM THE APPEAL

    BACDL REQUESTS THE COURT DO WHATEVER THE HONORABLE MR. SATZ WANTS AND APOLOGIZES FOR FILING THIS APPEAL

  5. 1

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    Let’s see if I can find some inspiring words from Fake Hitler to repost to help my employees get through the rest of this pandemic

  6. 3

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    And how many Broward judges knew exactly what ole Scotty was up to and did and said nothing while they got campaign contributions?

  7. 0

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    My advice to Sheriff Tony is to not ask my advice seeing as how I didn’t even have a pension after they got through with me

  8. 1

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    OPEN UP THE COURTHOUSE NOW TUTER. OPEN THE COURTHOUSE. ENOUGH ALREADY. OPEN UP THE COURTHOUSE NOW TUTER. WE NEED TO WORK AND SUPPORT OUR FAMILY. OPEN UP THE COURTHOUSE NOW TUTER.

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    I refuse to concede due to election fraud in the Black precincts. I am not a racist just because I jailed Blacks twice as long as Whites, I’m your PD. Mr Cooper is your Mayor. I am not a racist anymore. I swear. You can DEPENDS on me.

  10. 0

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    In my last month I have expedited the executions of numerous Federal inmates and made sure Broward courts will remain inaccessible until July

  11. 0

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    Judge Tuter do you ever plan on reopening the Courthouse. When is the Courthouse going to reopen so that we can do our jobs and start getting paid again. OPEN UP THE COURTHOUSE NOW TUTER.

  12. 2

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    Exactly right. They are prosecutors. Not judges. They dont even see the discovery. The State doesn’t even have to oppose a motion with any evidence. A Broward judge will deny the Motion…. just because.

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