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Bertha Jackson v. State of Florida

SC07-659

THANK YOU.
THE NEXT CASE ON OUR
CALENDAR THIS MORNING IS
JACKSON v. STATE OF FLORIDA.
>> MAY IT PLEASE THE COURT.
MY NAME IS PAM IZACK WS.
I AM WITH THE THE PUBLIC --
>> YOU ARE GOING TO HAVE TO
SPEAK A LITTLE LOUDER THERE.
>> MAY IT PLEASE THE COURT.
MY NAME IS PAMELA IZACK WSWITS
WITH THE PUBLIC DEFENDER'S
OFFICE THE 10th DISTRICTER
OFFICE AND I REPRESENT THE
PETITIONER IN THIS CASE
BERTHA JACKSON.
FIRST I WOULD LIKE TO SAY
WHAT THIS CASE IS NOT.
THIS IS NOT A SENTENCINGIRER
CASE NOR IT IS IS IT A CASE
WHERE THE COUNSEL FAILED TO
MAKE CONTEMPORANEOUS
OBJECTION.
THIS CASE INVOLVES LACK OF
COUNSEL IN THE CRITICAL CASE
OF THE PROCEEDINGS.
IT IS FUNDAMENTAL ERROR.
>> WELL IF YOU ARE SAYING IT
IS KIND OF CONTRADICTORY TO
SAY IT DOESN'T INVOLVE A
LACK OF OBJECTION BUT YET
IT'S FUNDAMENTAL ERROR.
>> WELL IT INVOLVES THE FACT
THET THE DEFENSE -- INSECOND
DCOES SAID THERE WAS A LACK
OF OBJECTION.
THE ARGUMENT HERE IS DEFENSE
COUNSEL WASN'T PRESENT IN
ORDER TO MAKE OBJECTION.
>> BUT I THINK THAT WOULD
YOU AGREE THAT FIRST OF ALL,
AND I WILL ASK THE STATE
THIS QUESTION THAT ANY ERROR
OCCURRING DURING THE
SENTENCING PROCESS IS NOT
SUPPOSED TO BE SENTENCING
PURPOSE WITH 3 AG.
I PROBABLY AGREE WITH YOU.
I SHARE JUDGE ALTENBURN'S
DISMAY ABOUT WHAT'S GOING ON
BUT ON THE OTHER HAND WE
AGREE THAT THE RECORD'S
CLEAR.
HE DIDN'T HAVE COUNSEL FOR A
PART OF THE VICTIM'S
TESTIMONY.
BUT THE LAWYER GOT ON AT THE
POINT WHERE AT SOME POINT
THE WITNESS WAS STILL THERE.
THE WITNESS AND THE LAWYER
SAYS NOTHING AND SO THE
QUESTION IS IS IN THIS,
WHERE IT'S NOT TOTAL LACK OF
COUNSEL, AS IN GUN SWROL DSS
WHERE THERE WAS A --
GONZALEZ WHERE THERE WROS A
COMPLETE LACK OF
REPRESENTATION, ISN'T THAT
DENIAL OF THE RIGHT TO
COUNSEL SUBJECT TO A
HARMLESS ERROR ANALYSIS?
>> I THINK IF IN THIS CASE
THE PROBLEM WAS THAT BY THE
TIME THE DEFENSE COUNSEL WAS
NOTIFIED, THE JUDGE HAD
ALREADY ASKED 44 QUESTIONS,
SEVEN PAGES OF TESTIMONY.
THE VICTIM TESTIFIED TO LOTS
OF INFORMATION THAT WASN'T
IN THE TRIAL, BY THE TIME
DEFENSE COUNSEL WAS NOTIFIED,
THE ERROR HAD ALREADY
OCCURRED --
>> WHAT WAS THE -- WHAT WAS
THE -- I GUESS I'M LOOKING
AT THIS IS A VICTIM THAT
ENDS UP SAYING NO, I DON'T
THINK THAT YOUR CLIENT
SHOULD GET A 30-YEAR
SENTENCE.
IT LOOKS LIKE IT, AND THAT
WHAT WOULD THE CROSS
EXAMINATION HAVE BEEN WHEN
HE WASN'T PRECLUDED FROM
CROSS-EXAMINING TO MAKE IT
ANY BETTER THAN THE WITNESS
WAS SORT OF SYMPATHETIC TO
YOUR CLIENT.
>> WELL, THE VICTIM WAS
SYMPATHETIC TO THE CLIENT
BUT THE JUDGE WAS ASKING
QUESTIONS THAT I, HARD TO
KNOW BECAUSE DEFENSE COUNSEL
WASN'T THERE WHO COULD'VE
OBJECTED BUT THE JUDGE IS
ASKING QUESTIONS ABOUT THE
HISTORY OF WHETHER THESE TWO
WOMEN SHARED THE SAME MEN,
WHETHER THE VICTIM FATHER OF
THE CHILD -- IF THE FATHER
OF THE CHILD THAT THE VICTIM
HAD WAS ANY RELATION TO --
>> WELL, DON'T YOU HAVE TO
SHOW THEN HERE THAT COUNSEL
BEING ABSENT, THAT THERE
WERE, THERE WAS EVIDENCE
THAT CAME IN THAT THE JUDGE
SHOULDN'T HAVE CONSIDERED
AND WOULDN'T THAT, THAT BE
THE, THE WAY TO APPROACH
THIS?
YOU HAVEN'T SHOWN THAT.
YOU JUST SAID WELL HE WASN'T
THERE FOR PART OF IT.
IT SEEMS LIKE THERE WAS A
MIX UP, A MISUNDERSTANDING,
AND, AND THAT IT WASN'T ANY
INTENTIONAL ATTEMPT TO DENY
THE CLIENT COUNSEL.
>> WELL, THERE WAS AN
ATTEMPT TO DENY COUNSEL.
>> WELL, WHAT I'M ASKING YOU
IS DON'T YOU HAVE TO SHOW
NOW WHAT OBJECTION -- WHAT
SOMETHING OBJECTIONABLE THAT
CAME IN THAT PREJUDICED YOUR
CLIENT.
>> I THINK IT'S PER SE
FUNDAMENTAL ERROR WHEN
DOLLAR IS A SENTENCING
PROCEEDING AND DEFENSE
COUNSEL IS ABSENT AND THE
JUDGE KNOWING THAT HE
COMMITTED REVERSIBLE ERROR.
HE SAID, AND I QUOTE FROM
THE RECORD,.
>> WE'RE NOT GOING TO TAKE
THE JUDGE'S VIEW OF --
>> WELL, LET ME ASK YOU
BECAUSE WAS THERE A
SUBSEQUENT SENTENCING
HARING.
>> THERE WAS.
>> AND DID YOUR CLIENT HAVE
COUNSEL?
>> YES.
>> WAS HE ABLE TO PRESENT
TESTIMONY?
>> THERE WAS NO TESTIMONY
TAKEN AT THAT TIME.
>> WOULD HE HAVE BEEN ABLE
TO TAKE --
>> I DON'T KNOW.
I'M NOT SURE.
I DON'T KNOW.
IT WAS JUST A SENTENCING,
THE DEFENSE COUNSEL SPOKE ON
THE RECORD.
THERE WAS NO TESTIMONY TAKEN
AT THAT TIME.
>> WAS THERE A REQUEST TO
PRESENT ANY TESTIMONY.
>> NO, THERE WAS NOT.
>> SO THERE WOULD'VE BEEN AN
OPPORTUNITY TO SUBS-- GET A
COPY OF THE TRANSCRIPT, OF
WHATEVER HAPPENED WHILE HE
WAS NOT ON THE PHONE, AND
COULD HAVE PRESENTED THE,
THE WITNESS BY PHONE AT THE
SUBSEQUENT SENTENCING
HEARING.
>> I THINK THAT'S POSSIBLE.
THE PROBLEM IS THAT BY THE
TIME HE WAS, THE REASON
THERE WAS NO OBJECTION WAS
BY THE TIME HE WAS,.
>> WE UNDERSTAND THAT.
WE UNDERSTAND THERE COULDN'T
HAVE BEEN OBJECTION DURING
THE TIME THAT -- HE WAS
TESTIFYING.
BUT, OUT OF THE UNITED
STATES SUPREME COURT, WE'RE
NOT OBLIGATINGED I GUESS TO
FOLLOW IT IN LOOKING AT OURS
BUT IN SIXTH AMENDMENT SAYS
THAT THERE'S ONE THING WHEN
THERE'S DEPRIVATION OF THE
RIGHT TO COUNSEL FOR THE
ENTIRE PROCEEDING BUT WE
HAVE PERMITTED.
HARMLESS, NONCAPITAL CASES
WHERE THE EVIL CAUSE BY THE
6th AMENDMENT IS LIMITED TO
THE ERRONEOUS ADMISSION OF
PARTICULAR EVIDENCE.
SO THAT'S WHAT I'M ASKING
WELL WHAT WAS ERRONEOUS AND
ISN'T THAT THE WAY TO SAY
WELL THAT WAS WOULD'VE BEEN
ONLIED TO AND SHOULDN'T HAVE
COME IN?
>> WELL, WHAT WAS ELOANIOUS
IS THE JUDGE WENT WAY BEYOND
WHAT THE INFORMATION CAME
OUT AT TRIAL.
HE WAS ASKING THE VICTIM
ABOUT HER PERSONAL
RELATIONSHIP WITH
MS. JACKSON, ASKING HER
PERSONAL QUESTIONS ABOUT THE
FATHER OF HER CHILD, WHETHER
THEY SHARED MEN, WHETHER IT
WAS, THAT TO ME WAS
OBJECTIONABLE.
HAD I BEEN THERE, I PROBABLY
WOULD'VE OBJECTED BECAUSE I
DON'T THINK THAT WAS
RELEVANT TO SENTENCING.
>> WELL YOU KEEP SAYING HE
HAD NO OPPORTUNITY TO OBJECT
AND HE FINALLY GOT ON THE
PHONE WITH THE JUDGE,
CORRECT?
>> AFTER SEVEN PAGES.
>> HE FINALLY GOT ON THE
PHONE WITH THE JUDGE.
>> YES.
>> AND THE JUDGE ADMONISHED
HIM BECAUSE HE HAD SAID
NOBODY LEAVE THE COURTROOM.
I'M GOING TAKE THE TESTIMONY
OF THE VICTIM SO SHE DOESN'T
HAVE TO FLY BACK LATER,
CORRECT.
>> YES.
>> AND HE LEFT ANY.
>> IT WAS NEVER CLEAR ON THE
RECORD WHY HE LEFT, WHERE HE
WENT.
>> I UNDERSTAND THAT BUT HE
DID LEAVE.
>> YES.
>> AND AT SOME POINT, THEY
WERE ABLE TO GET HIM ON THE
PHONE.
>> YES.
>> AND THE JUDGE SAID DID
YOU NOT UNDERSTAND THAT I
WAS GOING TO TAKE THE
VICTIM'S STATEMENT SO THAT
SHE WOULDN'T HAVE TO COME
BACK FROM NORTH CAROLINA AND
DEFENSE SAID NO I'M SORRY I
CERTAINLY DIDN'T AND THE
COURT, I THOUGHT I MADE IT
CLEAR, I'VE TAKEN PART OF
OUR STATEMENT YOU CAN LISTEN
TO THE REST I WILL GO
FURTHER AND TELL YOU WHAT
I'VE GOTTEN SO FAR.
OKAY.
IT SEEMS TO ME AT THAT POINT
COUNSEL HAD EVERY
OPPORTUNITY TO OBJECT AND
SAY JUDGE, TO TELL YOU THE
TRUTH, I THINK WE SHOULD
START ALL OVER IN THE
QUESTIONING THE WITNESS
BECAUSE I WASN'T PRESENT AND
HE LACKED COUNSEL AND THAT
WAS A PERFECT OPPORTUNITY TO,
OKAY, LET'S JUST GO BACK
FROM SCRATCH.
THAT'S START THE QUESTIONING
OVER AND YOU CAN
PARTICIPATE.
SO TO SAY THAT HE HAD NO
OPPORTUNITY TO OBJECT QUITE
FRANKLY I THINK IS TOTALLY
MISCONSTRUES THE RECORD.
>> I THINK WHAT HAPPENED WAS
THAT BY THE TIME HE WAS
NOTIFIED AS TO WHAT HAPPENED,
IT WAS ALREADY TOO LATE.
>> WELL, YOU SAY IT'S TOO
LATE.
WAS IT TOO LATE TO SAY JUDGE
I THINK WE SHOULD START
OVER.
HE DID NOT HAVE HIS 6th
AMENDMENT RIGHT TO COUNSEL.
>> HE DID NOT SAY THAT.
>> WAS, LET'S FOCUS ON 3.800,
THE AND AS I UNDERSTAND,
THAT'S THE CONFLICT ISSUE.
>> THAT'S THE CONFLICT, YES.
>> THAT WE'RE DEALING WITH.
AND NOW AFTER THE SENTENCING
PROCEEDING IN THE TRIAL
COURT, YOUR CLIENT WAS
REPRESENTED BY COUNSEL ON
APPEAL, CORRECT.
>> YES.
>> AND HAD AN OPPORTUNITY TO
REVIEW THE TRANSCRIPT PRIOR
TO THE TIME WHEN A 3.800 B 2
MOTION WOULD'VE BEEN
REQUIRED?
>> CORRECT.
>> IT SEEMS TO ME THAT IN
ALL OF THE LITIGATION NOW
THAT'S FLOWED OUT OF THIS
PROVISION OF THE RULE THAT
WE HAVE A SITUATION IN WHICH
IT'S, IT IS CLEAR THAT THE
RULE IS DESIGNED TO TRY TO
CATCH THE SENTENCING ERRORS.
AT THE TIME THAT THEY CAN BE
PRESENTED SO AS TO DEEM WITH
THEM THEN.
-- DEAL WITH THEM THEN
RECOGNIZING FOR SEVERAL
REASONS BUT REGARDLESS OF
THAT WHY IS THIS NOT A
SENTENCING AIRER?
>> WELL, THERE WAS NO
SENTENCE IN PLACE.
THERE WASN'T A SENTENCE -- A
SENTENCING ERROR INVOLVES
THE STATUTORY MAXIMUM
SENTENCE OR INVOLVES THE
LENGTH OF SENTENCE OR
IMPOSING A MANDATORY
SENTENCE.
THERE WAS NO SENTENCE.
>> THERE WAS A SENTENCE.
>> THERE WASN'T A SENTENCE
HERE.
THIS WAA SENTENCING
PROCEEDING WHERE THE JUDGE
WAS TAKEN TESTIMONY FROM THE
VMENT -- VICTIM.
>> DID THE JUDGE HAND OUT A
SENTENCE?
>> NOT AT THAT POINT.
NO.
THERE HAD BEEN NO SENTENCE
IMPOSED AND MS. JACKSON DID
FILE A MOTION TO CORRECT
SENTENCING ERROR, WHICH THE
RULE APPLIES IN THIS CASE
BECAUSE THERE WAS A
DISCREPANCY BETWEEN THE ORAL
PRONOUNCEMENT AND THE
WRITTEN PRONOUNCEMENT, WHICH
IS PRECISELY WHAT 3800 IS
FOR, TO CORRECT THE ERRORS
AT SENTENCING AFTER SHE WAS
SENTENCED SHE WAS ACTUALLY
CONVICTED OF AGGRAVATED
BATTERY WITH A WEAPON.
THE DOCUMENT SHOWED
AGGRAVATED BATTERY WITH A
FIREARM.
38 MOTION WAS FILED.
THE JUDGE SAID YOU'RE
CORRECT.
THERE'S A PROBLEM WITH THE
DOCUMENTS AND HE REISSUED
THE SENTENCE.
I MEAN, THIC THE SENTENCE
HADN'T CHANGED BUT THE
DOCUMENTATION CHANGED.
THAT'S EXACTLY WHAT THE 3800
WAS FOR BUT IN THIS INSTANCE
THERE WAS NO SENTENCE.
>> SO YOU ARE ARGUING, IN
YOUR OPINION IT IS YOUR
POSITION THAT 3800 B IS
LIMITED TO INSTANCE WHERES
THE WRITTEN SENTENCE SOMEHOW
ILLEGAL OR CONTRARY TO THE
RULES OR ANYTHING LIKE THAT
OR, IS, IS CONTRADICTORY TO
THE ORAL SENTENCE, THINGS
LIKE THAT?
>> THAT'S, THAT'S HOW I READ
THE RULE.
THAT'S WHAT MADDOX HAS, A
LONG LIST OF WHAT'S INVOLVED
IN A 3800.
>> THE PROBLEM I SEE WITH
THAT IS THAT THIS COURT
SEEMS TO HAVE EXPANDED IF,
IF INDEED THAT WAS THE
ORIGINAL INTENT OF THE RULE,
IT SEEMS TO HAVE EXPANDED
THE REACH OF 38 B BEYOND
THOSE KINDS OF THINGS TO
ERRORS THAT ACTUALLY
OCCURRED DURING THE
SENTENCING HEARING.
ISN'T THAT CORRECT?
>> THAT'S CORRECT.
>> SO WE DON'T HAVE TO
RECEDE FROM A FEW TACE CASES
IN ORDER TO ADOPT YOUR
POSITION.
>> I DON'T THINK YOU'D HAVE
TO RECEDE AT ALL.
I DON'T THINK THAT A
CONSTITUTIONAL VIOLATION
WHERE DEFENSE COUNSEL'S NOT
PRESENT AND THE SECOND DCA
SAID THIS WAS A DUE PROCESS
VIOLATION.
>> I AM NOT ARGUING THAT
POINT.
I AM NOT ASKING YOU ABOUT
THAT PART.
I AM ASKING YOU ABOUT THE
PART WHERE THIS COURT HAS
EXPANDED THE REACH OF 3.800
B BEYOND ERRORS THAT
OCCURRED IN THE SENTENCING
ORDER.
WOULDN'T WE HAVE TO RECEDE
FROM SOME OF THOSE CASES.
>> I DON'T THINK THAT THIS
CALLS FOR RECEDING FROM
ANYTHING.
I THINK THAT THIS IS A
CONSTITUTIONAL VIOLATION
THAT STILL FUNDAMENTAL ERROR
STILL APPLIES AIOHAVEN'T
THROWN OUT FUNDAMENTAL
ERROR.
>> I GUESS THAT'S WHY WE
WERE SPENDING THE FIRST HALF
OF THE ARGUMENT ON HOW IS
THIS FUNDAMENTAL ERROR AND
JUSTICE CANTERO WAS POINTING
OUT WHERE AN OBJECTION COULD
BE MADE.
3800 B WAS DESIGNED TO
REDUCE THE NUMBER OF APPEALS
IF SOMETHING COULD BE
CORRECTED WHILE STILL AT THE
TRIAL STAGE AND SO HERE
AGAIN WHAT WE'RE TALKING
ABOUT IS WHETHER EITHER WAY
BY FILING THIS 3.800 B
COULD'VE SAID OKAY I'D LIKE
THE JUDGE TO TAKE -- NOT
TAKE INTO CONSIDERATION THE
VICTIM'S TESTIMONY.
IN OTHER WORDS, SOMETHING
THAT COULD HAVE BEEN
CORRECTED.
WHAT YOU'RE SORT OF SEEKING
IS YOU WANT A WHOLE NEW
SENTENCING PROCEEDING.
>> CORRECT.
>> BECAUSE YOU'RE POINTING
TO THE FACT THAT FOR SOME
PART OF THE VICTIM'S
TESTIMONY, THE DEFENDANT
WASN'T REPRESENTED.
AND I GUESS I'M STILL HAVING
TROUBLE, MAYBE JUST WITH THE
GENERAL NOTION, BECAUSE I, I
CAN SEE HOW IF THERE IS NO
LAWYER DURING THE WHOLE
SENTENCING PROCEEDING IT
WOULD BE KIND OF SILLY TO
SAY WELL BRING THAT UP AT
3.800 B BECAUSE THE ONLY
REMEDY IS A WHOLE NEW
SENTENCING PROCEEDING BUT
HERE WE'RE STILL DEALING
WITH A PART OF IT.
SO MAYBE MY OTHER QUESTION
IS IS THIS REALLY, IS THIS
SECOND DISTRICT OPINION IN
CONFLICT WITH THE, THE FIRST
DISTRICT OPINION BECAUSE IT
INVOLVES A COUNSEL THAT WAS
NOT PRESENT FOR PART OF THE
PROCEEDING.
THE OTHER INVOLVES COUNSEL
THAT WAS WHOLLY ABSENT FOR
THE ENTIRE PROCEEDING.
AND SHOULD THAT MATTER.
>> SHOULD IT MATTER?
WELL, IT MATTERS HERE I
THINK.
I THINK THAT THE WHOLE
SENTENCING PROCEEDING
INVALID.
I THINK THAT MS. JACKSON'S
ENTITLED TO A WHOLE NEW
SENTENCING PROCEEDING WHERE
DEFENSE COUNSEL IS SITTING
THERE WITH HER.
DEFENSE COUNSEL HAS AN
OPPORTUNITY TO OBJECT TO TO
EVERY SINGLE QUESTION THAT
IS BEING ASKED.
I ALSO WANT TO POINT OUT,
AND THIS WASN'T ADDRESSED
ANYWHERE, THIS WAS EX PARTE
PROCEEDING.
THE JUDGE AND THE PROSECUTOR
WERE SITTING THERE
QUESTIONING THIS WITNESS,
DEFENSE COUNSEL WASN'T THERE,
THERE'S NO MENTION ANYWHERE
IN ANY OF THE SECOND
DISTRICT OPINIONS THAT THIS
WAS EX PARTE PROCEEDING.
>> WASN'T THE DEFENDANT
THERE?
>> THE DEFENDANT WAS THERE
UNREPRESENTED.
>> SO IT WASN'T EX PARTE.
>> BOTH PARTIES WERE THERE
HE JUST DIDN'T HAVE COUNSEL.
I JUST WANT TO CLARIFY.
THE QUESTION IS WHETHER SHE
HAD COUNSEL.
SHE WAS PRESENT.
>> SHE WAS PRESENT BUT SHE
WAS NEVER ASKED DO YOU WANT
TO HAVE SOMEBODY ELSE
REPRESENT YOU SHE WAS NEVER
ASKED IF SHE WANTED TO
REPRESENT HERSELF.
IN ESSENCE IT WAS AS IF SHE
WASN'T SITTING THERE BECAUSE
SHE -- WE DON'T KNOW WHAT
SHE KNEW WHAT DIDN'T KNOW
WHAT HER RIGHTS WERE.
NOBODY TOLD HER WHAT HER
RIGHTS WERE.
>> WHAT WAS THE PERIOD OF
TIME BETWEEN THIS PROCEEDING
WHICH WAS RIGHT AFTER THE
TRIAL, CORRECT?
>> YES.
>> WHAT WAS THE LENGTH OF
TIME BETWEEN THAT AND THE
ACTUAL SENTENCING?
>> I THINK IT WAS ABOUT FOUR
WEEKS.
>> FOUR WEEKS.
AND WAS THE TRANSCRIPT EVER
ASKED FOR BY DEFENSE COUNSEL
OR THE DEFENDANT?
>> NO.
I'D LIKE TO RESERVE THE
REMAINDER OF MY TIME FOR
REBUTTAL.
>> OKAY.
>> GOOD MORNING.
MAY IT PLEASE THE COURT.
MY NAME IS DOW.
I AM HERE ON BEHALF OF THE
STATE OF FLORIDA.
IT'S MY PRIVILEGE.
THE FIRST QUESTION THAT THE
COURT SHOULD ASK IS, IS
RESENTENCING A BENEFICIAL
CHOICE FOR THE PETITIONER
UNDER THIS SET OF FACTS.
AND I WOULD ARGUE TO YOU
THAT WHAT HAPPENED DOWN
BELOW DID NOT HAPPEN DURING
A CRITICAL STAGE OF THE
PROCEEDING.
>> MAYBE WE OUGHT TO START
REALLY WITH THE RULE BECAUSE
EVEN THOUGH THIS IS A
FASCINATING SUBISSUE, LET'S
TALK ABOUT THE STATE'S
POSITION AT 300 B.
>> CERTAINLY, YOUR HONOR.
>> MY CONCERN WOULD BE THAT
IF WE SAY THESE ARE SUBJECT
TO 300 B, THEN THAT WOULD
MEAN THAT I, SOMEBODY COULD
NOT OBJECT TO ENTIRE
SENTENCING PROCEEDING ON ALL
SORTS OF EVIDENTIARY THINGS,
FINISH THAT PROCEEDING, AND
THEN FILE A 3.800 B AND GO,
THOSE WERE ALL ERRORS THAT I
DIDN'T OBJECT TO AT THE TIME
AND NOW THOSE WOULD BE
CONSIDERED ON APPEAL AS IF
THEY WERE PRESERVED AND I
DON'T THINK WE WERE
INTENDING TO DO THAT.
>> CORRECT.
>> WE WERE INTENDING TO FIX
THINGS, AND I KNOW MAYBE
WE'D LIKE A BRIGHT LINE BUT
THINGS THAT COULD BE
CORRECTABLE AND PREVENT AN
APPEAL SUCH AS, YOU KNOW,
THINGS THAT ARE IN THE
SENTENCE ITSELF OR AARISING
FROM THE SENTENCE.
NOT EVIDENTIARY MATTERS SO
WHAT'S THE STATE'S POSITION
ABOUT THAT.
IS IT MORE LIKE JUDGE
STRINGER?
I MEAN HE SEEMS TO HAVE KIND
OF CAPTURED, MAYBE IS WHAT
I'M THINKING.
>> WELL, I WOULD LIKE TO GO
BACK TO JUSTICE PARIENTE'S
--, YOUR OWN DEFINITION OF
WHAT SENTENCING ERROR MEANS
AND YOU WROTE IN HARVEY v.
STATE, YOU SAID THERE THAT
SENTENCING ERRORS ARE THOSE
THAT ARE CAPABLE OF BEING
ADDRESSED AND CORRECTED.
AT THE TRIAL COURT LEVEL.
SO BY DEFINITION I WOULD
URGE YOU TO CONSIDER THAT
UNDER THE FACTS OF THIS CASE,
THE ERROR IF ANY WAS
CERTAINLY CAPABLE OF BEING
ADDRESSED AT THE TRIAL COURT
LEVEL AS YOU HAD SEEN.
>> WHAT WOULD HAVE HAPPENED?
THEY FILE AD3.800 B AND WHAT
WOULD THEN HAVE OCCURRED?
WHAT YOU WOULD HAVE WANTED
THE JUDGE TO HAVE DONE?
>> THERE ARE SEVERAL OPTIONS
AT THE MOMENT THAT DEFENSE
COUNSEL JOINED UP WITH THE
COURT BY TELEPHONE.
HE APPEAR BIDE TELEPHONE AND
HE SAID --
>> 3.800 -- NOTHING HAPPENED
DURING THE HEARING.
YOU NOW HAVE A 3.800 B
FILED.
>> IT, IT --
>> WHAT WOULD THE JUDGE THEN
DO?
THE SENTENCE HAS ALREADY
BEEN ENTERED.
THE VICTIM IS BACKEN NORTH
CAROLINA.
HOW WOULD THE JUDGE CORRECT
SNAT THAT?
>> TRIAL COURT CAN CORRECT
IT NO DIFFERENT THAN IN A
VINDICTIVE SENTENCING CASE,
YOUR HONOR, IN TERMS OF, YOU
KNOW, THE, THE COMPLAINT
HERE IS THAT WHATEVER WAS
TAKEN DURING THIS PROCEEDING
PLAY INTO THE JUDGE'S
ULTIMATE DECISION IN
SENTENCING.
THAT'S THE WHOLE GIST OF IT.
>> HOW WOULD IT BE CORRECTED?
DWL I'M ASKING YOU WHETHER
THE STATE'S POSITION IS
WHETHER THIS COULD BE
PRESERVED THROUGH A 3.800 B.
>> AT THAT MOMENT,
PARTICULARLY IN, IN THAT
MOTION TO CORRECT SENTENCE
UNDER 3.800 B THEY COULD ASK
FOR A RESENTENCE BY A
DIFFERENT JUDGE.
>> AREN'T YOU REALLY THOUGH
BY EXTENDING THIS CONVERTING
THE 3.800 B INTO A FIRST
APPEAL?
THAT IS THAT, IF WE TAKE
THIS ISSUE AND WE DON'T HAVE
TO GO MUCH FURTHER THEN
SAYING, WELL, THERE WAS
EVIDENCE RECEIVED AT THE
SENTENCING HEARING, AND SOME
OF IT WAS OBJECTED TO AND
SOME OF IT WASN'T AND THE
JUDGE RECEIVED IT AND NOW
WE'VE GOT THE POTENTIAL THAT
WE WOULD CONVERT 300 B INTO
A FIRST APPEAL WHERE NOW
THEY'D SAY, WELL, WE THINK
THE JUDGE ERRED IN RECEIVING
THIS EVIDENCE.
OR WE THINK THE JUDGE ERRED
IN EXCLUDING THIS EVIDENCE.
AND I'M HAVING DIFFICULTY
WITH THAT BEING THE PURPOSE
OF --
>> OF THE RULE.
>> OF 3.800 B, WHICH IS
REALLY WAS INTENDED TO CATCH
SOME ERRORS THAT, WELL, AT
ONE CATEGORY WOULD BE THAT
PROBABLY EVERYBODY WOULD
AGREE, THAT, YOU KNOW, THAT
THERE WAS A MISTAKE AND WE
JUST DON'T WANT TO WAIT FOR
THE TIME THAT IT TAKES TO
GET INTO THE APPELLATE COURT
BECAUSE OF ALL THAT DELAY.
>> YES.
>> TO CORRECT SOMETHING THAT
COULD'VE BEEN CORRECTED
EARLIER BUT NOT AS A FIRST
APPEAL.
THAT IS.
>> I UNDERSTAND.
>> AND THIS IS WHERE I'M
HAVING TROUBLE.
>> AND I AGREE WITH YOU.
I AGREE WITH YOU
WHOLEHEARTEDLY IN THAT WE
DON'T NEED TO RESORT THE
RULE EVEN TO CORRECT THIS
ERROR.
NOW I WILL TELL YOU WHY.
WHAT HAS BEEN OVERLOOKED IN
ALL OF THIS IS THAT THE
VICTIM'S STATEMENT HERE IS
DIFFERENT THAN LET'S SAY AN
AFT SUPPORTING AN ENHANCED
SENTENCE OR AN AFT REGARDING
PRIOR CONVICTION.
YOU KNOW, BY CONSTITUTIONAL
AMENDMENT, THE, THE VICTIM
HAS THE RIGHT TO COME BEFORE
THE COURT BEFORE SENTENCING
OR AFTER SENTENCING HEARING.
>> WELL NOW YOU ARE DEALING
YOU KNOW, WITH THE MERITS OF
THE, OF THE UNDERLYING ISSUE,
AND ISN'T THAT REALLY WHAT
WE SHOULD FOCUS ON THEN?
>> YEAH.
>> SO, SO WHY DON'T YOU GO
AHEAD AND HELP US WITH THAT
BECAUSE I MUST SAY I'M
HAVING SOME DIFFICULTY --
>> I UNDERSTAND.
>> WITH THE FACT THAT, THAT
A, REALLY WHAT THE TRIAL
JUDGE DID WAS START THE
SENTENCING HEARING AT THAT
TIME AND IS IT APPEARS THAT
THERE'S LOTS OF FAULT TO GO
AROUND INCLUDING ESPECIALLY
THE DEFENSE LAWYER BECAUSE
IF WE TAKE THE RECORD THE
WAY IT IS, IT APPEARS THE
DEFENSE LAWYER WAS TOLD ON
THE RECORD, OKAY, WITH THE
TRANSCRIPT AVAILABLE TO US,
NOT TO LEAVE.
>> THAT'S CORRECT.
>> AND WAS AND THE DEFENSE
LAWYER DID LEAVE.
NOT ONLY DID THE DEFENSE
LAWYER LEAVE, LATER WHEN THE
DEFENSE LAWYER WAS ON THE
PHONE WHILE THIS WAS GOING
ON AFTER HAVING LEFT AS
JUSTICE CANTERO INDICATES,
HE DID NOT SAY TO THE TRIAL
JUDGE, WELL, HOLD IT.
YOU KNOW, I'M GOING TO COME
RIGHT OVER THERE AND, YOU
KNOW, MAYBE WE CAN START
THIS THING OVER AGAIN OR
SOMETHING.
AND THEN TO COMPOUND IT EVEN
FURTHER, WHEN THERE WAS A
SENTENCING HEARING LATER, HE
DIDN'T SAY, WELL, JUDGE,
WAIT A MINUTE.
YOU KNOW, I'VE HAD TIME NOW
TO THINK ABOUT IT.
AND I DON'T THINK YOU SHOULD
PROPERLY CONSIDER THE, THE
TESTIMONY YOU TOOK OF THE
VICTIM BECAUSE I WASN'T
THERE OR WHATEVER.
BUT WE GO ALL THE WAY BACK
TO THE FACT THAT THERE WAS A
PERIOD OF TIME WHEN THE
JUDGE WAS ASKING --
>> JUSTICE ANSTEAD?
>> WE'LL TAKE -- THE COURT
WILL TAKE A 10-MINUTE
RECESS.
>> ALL RISE. \S RESUMPTION OF CASE 2 >> COURT IS BACK IN SESSION, PLEASE, BE SEATED.\E >> JUSTICE QUINCE IS FINE, SHE'S RESTING RIGHT NOW, AND SHE HAS ACCESS TO THE TAPE, THE GAVEL TO GAVEL PRESENT IT IS ENTIRE ARGUMENT JUST AS THOUGH SHE WAS SITTING HERE, AND SHE'LL HAVE THE OPPORTUNITY TO PARTICIPATE IN THAT FASHION IF SHE DECIDES TO PARTICIPATE IN THE CASE.\E >> THANK YOU, YOUR HONOR.\E >> OKAY?\E AND SO WE'LL GO --\E >> YES.\E >> SHORTER NOW THAT YOU'VE HEARD THE PRELIMINARY PART OF IT.\E >> YES.\E >> AND CAN FOCUS HERE.\E THAT IS THAT WE'RE LEFT, THOUGH, WITH REALLY THE BEGINNING OF THE SENTENCING HEARING.\E WITH A, AN APPRECIABLE PART OF THE TESTIMONY OF THE VICTIM, YOU KNOW, FOR SENTENCING PURPOSES WHERE THE DEFENDANT IS UNREPRESENTED BY COUNSEL.\E AND THAT'S THERE, THAT IS -- AND WE CAN'T, YOU KNOW, IT'S THERE.\E AND SO I AM HAVING DIFFICULTY WITH THE FACT THAT WE ESSENTIALLY HAD THE SENTENCING HEARING START EARLY, AND THAT HE'S UNREPRESENTED.\E AND AS MUCH AS I, I HAVE TO SAY LOOKING AT THE CONDUCT OF DEFENSE COUNSEL, I FEEL LIKE JUSTICE CANTERA.\E THERE WERE MANY OPPORTUNITIES FOR THE DEFENSE LAWYER TO STRAIGHTEN THIS OUT AND GET THIS CORRECTED, BUT THAT'S NOT THE DEFENDANT, THAT'S THE DEFENSE LAWYER.\E HELP ME WITH NOT BEING A FUNDAMENTAL PROBLEM OF THE SENTENCING PROCEEDING COMMENCING, AND THE DEFENDANT BEING DEPRIVED OF COUNSEL.\E ASSUMING THAT COUNSEL WAS THERE, THE STATUTE, THE SIOUXAL.\E >> WE'VE SEEN IT IN MANY INSTANCES WHERE VICTIMS OF CRIMES WOULD COME BEFORE THE COURT AND EXPRESS, AMONG OTHER THING, OUTRAGE AND HIGHLY-EMOTIONAL OUTBURSTS.\E DURING THOSE OCCASIONS, THE DEFENSE DOESN'T HAVE THE RIGHT TO CROSS EXAMINE.\E THEY DON'T HAVE THE RIGHT TO THE VICTIM, CONTAIN YOURSELF, WE DON'T WANT TO HERE R HEAR THESE OUTBURSTS OR CHALLENGE THE BASIS OF THE IMPACT THAT IT HAS ON THE VICTIM AS FAR AS THE CRIME GOES.\E MY ANSWER TO YOU IS WE DON'T HAVE TO RESORT TO 3800B2 TO RESOLVE THE ISSUE BEING PRESENTED.\E FURTHERMORE, WHY IS IT -- IS IT FUNDAMENTAL?\E >> I HAVE TO GET BACK TO SOMETHING BECAUSE WE'RE HERE, THERE'S A CONFLICT OF THAT, WHETHER 3800B IS REQUIRED FOR THESE KINDS OF ERRORS.\E WHAT -- DOES THE STATE'S POSITION THAT IF THEY HAD, LET'S JUST -- OBJECTED THROUGH FILING A 3 800 B MOTION THAT THEN THE APPELLATE COURT COULD LOOK AT THIS ON THE BASIS OF AS IF IT HAD BEEN PRESERVED AND LOOK AT IT HARMLESS ERROR.>>
>> IT IS A SENTENCING ERROR
IN THE SENSE THAT IT
AFFECTED THE SENTENCE
ULTIMATELY.
LOOK, THE SECOND DISTRICT
SAID HE DIDN'T RAISE THE
ISSUE AS A MOTION TO CORRECT
SENTENCING ERROR FILED
PURSUANT TO FLORIDA RULE OF
CRIMINAL PROCEDURE 300 B 2.
THE FIRST DISTRICT THAT'S IN
FLICT SAYS YOU WOULDN'T HAVE
TO FILE A 308 B 2.
WHAT I'M SAYING IS WHAT I'M
ARE ASKING IS IT THE STATE'S
POSITION THAT THIS HAD TO BE
FILED AS A SENTENCING ERROR
THROUGH 3800 B AND THEN IT
WOULD'VE BEEN PRESERVED OR
THAT 3800 B IS IRRELEVANT TO
THIS.
IT'S, YOU LOOK AT IT AS IF
300 B DIDN'T EXIST.
THAT IT IS, IT SHOULD'VE
BEEN OBJECTED TO BELOW AND
IF IT WASN'T OBJECTED TO, IT
WOULD'VE BEEN LOOKED AT AS A
CLAIM OF FUNDAMENTAL ERROR.
>> THE STATE'S POSITION IS
THAT IT COULD HAVE BEEN
RESERVED AND PRESERVED
BELOW.
>> BUT THAT MAKES -- WHY?
THAT'S WHAT I ASKED YOU
BEFORE.
IN OTHER WORDS, IF THE
LAWYER HAD FILE AD3800 B AND
THE JUDGE DIDN'T RULE WITHIN
THE TIME PERIOD, THEN THE
APPELLATE COURT WOULD BE
OBLIGATED TO TREAT IT AS IF
IT HAD BEEN PRESERVED.
WHAT I'M ASKING YOU IS,
UNLESS WE'RE GOING TO MAKE
THIS RULE IS GOING TO BECOME
AN ABSURDTY, WHICH IS TO SAY
IT WASN'T DESIGNED TO, TO
ADDRESS CERTAIN KINDS OF
ERRORS, BUT THERE STILL
WOULD BE A CLASS OF
FUNDAMENTAL ERRORS THAT YOU
WOULD ADDRESS ON APPEAL BUT
YOU CAN'T TURN SOMETHING
THAT'S NOT TRULY MEANT FOR
300 B INTO A PRESERVED ERROR
SIMPLY BY FILING THAT
MOTION.
>> THAT'S WHAT YOU SAID IN
MADDOX AND HARVEY.
>> SO YOU -- SO THEREFORE
YOU AGREE THAT YOU DISAGREE
WITH THE SECOND DISTRICT'S
READENING?
-- REASONING.
>> I DISIEGRY TO THE EXTENT
THAT THERE'S NO CONFLICT.
BETWEEN THE DECISIONS.
AND MAYBE I'M NOT
UNDERSTANDING JUSTICE
PARIENTE'S --
>> YOU ARE SAYING IT WASN'T
PRESERVED BY A 3800 B 2 AND
YOU ARE SAYING OR I'M SAYING
THIS SHOULDN'T HAVE TO BE --
IT WOULD BE RIDICULOUS TO
HAVE THIS GO THROUGH A 300 B
2 BECAUSE THE JUDGE CAN'T DO
ANYTHING ABOUT IT AT THAT
POINT.
WHAT WOULD WE ENCOURAGE, I
MEAN THIS IS SORT
AFFFRIENDLY QUESTION OF THE
STATE.
WHY WOULD WE ENCOURAGE
SOMEONE TO SIT BACK DO
SOMETHING -- NOTHING DURING
THE WHOLE SENTENCING H} IN WITH A 00B --
>> YOU DON'T.
>> THE JUDGE DENIES IT --
>> CORRECT.
YOU DON'T.
WE DON'T WANT TO ENCOURAGE THAT,
AND THAT WOULD FLY IN THE FACE
OF -- AND THAT'S THE CRIMINAL --
>> OKAY, ON THE OTHER HAND, IF
SOMETHING IS TRULY A FUNDAMENTAL
ERROR, SUCH AS THE COMPLETE
ABSENCE OF AN ATTORNEY -- WELL,
THEN YOU AGREE THE FIRST
DISTRICT IS RIGHT?
>> THE FIRST DISTRICT OPINION IS
RIGHT ON ITS OWN FACT.
>> ALL RIGHT, SO, THEREFORE,
WHAT YOU WOULD SAY IS WE SHOULD
ADOPT WHAT JUDGE STRINGER SAID
IN HIS CONCURRENCE IN THIS
CASE --
>> YOU CERTAINLY COULD DO THAT.
AND AND ALSO APPROVE THE FIRST
DISTRICT'S OPINION AS WELL?
>> WELL, THE DECISIONS ARE RIGHT
ON THEIR OWN FACTS AND MERIT,
JUDGE.
YOU WOULDN'T HAVE TO PRESERVE
THAT --
>> CORRECT.
>> THAT WOULD REMAIN THE SAME
POSITION BECAUSE THAT'S A
CONSTITUTIONAL IMPERATIVE.
YOU CANNOT DENY THE ACCUSED THE
RIGHT TO COUNSEL.
BUT I WANTED TO GO BACK AND
ADDRESS THE FACTS, BECAUSE I
THINK IT'S IMPORTANT TO SEE THAT
RESENTENCING IS NOT THE IDEAL
SITUATION IN THIS CASE.
WHEN YOU LOOK AT THE FACTS, YOU
SEE CLEARLY THAT JUSTICE WILL
NOT BE SERVED.
BEFORE SENTENCING THE JUDGE SAID
SEVERAL TIMES, THIS IS NOT A
SENTENCING HEARING.
I'M NOT PASSING ANY JUDGMENT,
AND YOUR COUNSEL AND YOU WILL
HAVE A CHANCE TO DO SO LATER.
>> WAS THAT IMMEDIATELY AFTER
THE TRIAL?
>> YES.
>> AFTER THE GUILTY VERDICT?
>> YES.
>> AND THAT'S WHY THE VICTIM WAS
STILL THERE?
>> CORRECT.
AND I DON'T KNOW IF THIS IS
FEASIBLE, BUT, YOU KNOW, SHE'S
HERE, SHE'S BEEN FLOWN IN AT
PUBLIC EXPENSE, AND SHE WOULD
LIKE TO SAY SOMETHING AT
SENTENCING, AND THE JUDGE WAS
AMENABLE TO THAT.
HE FACED 30 YEARS IN PRISON.
THE JUDGE EXPRESSED THAT
SLASHING THE VICTIMS IN THE FACE
AND HEAD, LEAVING POSSIBLY
PERMANENT INJURY INCLUDING THE
LOSS OF SIGHT IN ONE EYE IS A
CONCERN, AND HE SAYS THE CONDUCT
WAS SIMILAR TO WAR CRIMINALS.
AND HE CITED YUGOSLAVIA TROOPS
DISFIGURING WOMEN.
AND HE SAID I HAVE A CONCERN
ABOUT THAT, AND MY FIRST
INCLINATION IS TO IMPOSE THE
MAXIMUM.
AND DEFENSE COUNSEL ADOPTED THE
VICTIM'S EXPRESSION, AND SAID,
JUDGE, THE VICTIM WAS NOT OF A
VINDICTIVE FRAME OF MIND, AND I
WOULD URGE YOU TO CONSIDER WHAT
SHE SAID.
NOT ONLY DID THEY WAIVE THE
ISSUE, THEY EXPRESSLY ADOPTED
WHAT THE VICTIM SAID IN TERMS OF
A LEAN LENIENT SENTENCE.
PETITIONER WAS IN CUSTODY AS OF
MAY 2005.
>> WHAT WAS THE MIN MOMENTUM
SENTENCE SHE COULD HAVE
RECEIVED?
>> SHE SCORED OUT TO 39.4 MONTH
MONTHS.
AND THE JUDGE SAID I'M NOT
OBLIGATED TO INPOSE THE MINIMUM.
IN IN CASE --
>> HAVE WE GOTTEN TO A POINT IN
SENTENCING WHERE THE JUDGE COULD
HAVE IMPOSED 34 MONTHS TO 30
YEARS AND IT'S NOT REVIEWABLE?
>> I'M NOT SAYING THAT AT ALL,
YOUR HONOR.
>> COULD HAVE DONE ANYTHING UP
TO 30 YEARS?
>> YES.
THAT'S WHAT -- YES.
>> CRIMINAL PUNISHMENT CODE
CASE, RIGHT?
>> YES.
SO IN THAT REGARD, IF ANY, INYOU
ARED TO THE PETITIONER'S
BENEFIT.
>> BUT ISN'T THAT A CHOICE THE
DEFENDANT HAS TO MAKE?
THAT IS, IF IT TRULY IS
FUNDAMENTAL, YOU KNOW, LET'S
JUST SAY THEY HAD A SENTENCING
HEARING, AND THE LAWYER DIDN'T
SHOW UP.
BUT THE JUDGE WENT AHEAD WITH
THE SENTENCING HEARING, AND THE
SAME OUTCOME, YOU KNOW?
BUT I WONDER WHETHER OR NOT THAT
THE TWO CONCEPTS OF HARMLESS
ERROR AND FUNDAMENTAL R OR --
ERROR REALLY AREN'T MUTUALLY
EXCLUSIVE.
THAT IS IF THE DEFENDANT CHOOSES
TO ASSERT THE RIGHT, THE RIGHT
TO THE EFFECTIVE ASSISTANCE OF
COUNSEL AT THE SENTENCING
HEARING, WHICH NOBODY DENIES THE
DEFENDANT HAD THE RIGHT TO, IT'S
THE DEFENDANT, NOW, THAT'S GOING
TO BE TAKING THE RISK --
>> YES.
>> YOU KNOW, ALL LOGIC SUPPORTS
WHAT YOU'RE SAYING, THAT IT SURE
LOOKS LIKE SHE CAME OUT SMELLING
LIKE A ROSE.
>> YES.
>> WHATEVER.
BUT THE REALITY IS WE HAVE THERE
DEPRIVATION OF COUNSEL AT A
CRITICAL STAGE, IN ESSENCE, THE
BEGINNING OF THE SENTENCEING
HEARING.
>> YES, YOUR HONOR, BUT U.S.
SUPREME COURTS HAVE TIME AND
TIME AGAIN SAID THAT A BRIEF AB
ABSENCE FROM A CRITICAL
PROCEEDING SUCH AS TRIAL IS
MEASURED BY THE HARMLESS ERROR
ANALYSIS.
I MEAN, THIS COURT HAS SAID SO
ON THE CASES THAT PETITIONERS
CITED TO OUT OF THE FOUR
DISTRICTS.
THERE WAS A BRIEF ABSENCE OF
COUNSEL IN SEVERAL FACTUAL
PATTERNS.
ONE WAS A JURY CHARGE
CONFERENCE.
ONE WAS DURING THE GIVING OF
JURY INSTRUCTIONS, ONE WAS
COUNSEL WAS TEMPORARILY
UNAVAILABLE FOR JURY
DELIBERATIONS.
SO I ASK YOU TO USE THOSE
FACTUAL PATTERNS AS WELL --
>> ARE THOSE IN THE SAME
CATEGORY AS WHEN SOMEONE IS
SPEAKING TO THE COURT AND GIVING
INFORMATION UPON WHICH SOME
ACTION'S GOING TO BE TAKING?
WHEN A JURY'S SITTING IN A JURY
ROOM DELIBERATING, THERE'S NOT
MUCH HAPPENING THAT A LAWYER
REALLY DOES.
AREN'T THOSE DIFFERENT THAN WHEN
YOU HAVE SOMEONE SPEAKING TO THE
COURT?
>> IN THE SENSE THAT SOMEONE IS
SPEAKING TO THE COURT, I WOULD
SUBMIT TO YOU THAT TRIAL WAS
OVER.
THE RIGHT TO CONFRONTATION HAD
ALREADY BEEN FULLY EXERCISED.
>> BUT THIS HAS TO BE CONSIDERED
TO BE PART OF THE SENTENCING
PROCESS.
I MEAN, EVEN THOUGH YOUR
OPPONENT POINTS OUT, YOU POINT
OUT THAT THE SENTENCE WAS NOT
ACTUALLY HANDED DOWN THAT DAY,
THIS WAS STILL PART OF THE
SENTENCING PROCEEDINGS.
BECAUSE THIS WAS CONSIDERED
INFORMATION THAT WAS CONSIDERED
IN HANDING DOWN THE SENTENCE.
>> YES.
>> WHICH BRINGS US BACK FULL
CIRCLE TO 3.800B AND THAT WE'VE
GOT TO ARTICULATE SOME WAY THAT
TRIAL COURTS ARE GOING TO BE
ABLE TO FIGURE OUT WHEN
SOMETHING -- AND THE APPELLATE
COURTS, WHEN SOMETHING COMES
UNDER A 3.800B AND WHEN IT DOES
NOT.
BECAUSE WE HAVE LANGUAGE IN OUR
CASES WHICH TALK ABOUT THIS IT
HAS TO DO WITH ANY SENTENCING
ERROR.
AND ANY SENTENCING ERROR SOUNDS
TO ME LIKE IT MEANS SOMETHING
THAT HAPPENS DURING THE
SENTENCING PROCEEDING.
>> I AGREE WITH YOU.
BUT THIS IS NOT THE RIGHT CASE
OR THE RIGHT VEHICLE TO DO THAT.
I MEAN, THIS CASE IS UNIQUE IN
ITS OWN FACTS.
AND IF YOU START CARVING OUT, I
MEAN, JUSTICE -- EXPRESSED THIS
CONCERN IN MAD COX.
SHE SAID I'VE LISTED SEVERAL
CATEGORIES OF SENTENCING ERRORS,
BUT I'M NOT SATISFIED THEY'RE
ALL EXHAUSTIVE, AND I RESERVE --
IN YOUR WORDS, A SPECIES OF
ERRORS THAT WE WILL ALWAYS VIEW
AS CONSTITUTIONAL ISSUE.
WHETHER SENTENCING TRIAL
RELATED, AND I WOULD URGE YOU TO
COME BACK TO THAT POINT IN THE
SENSE THAT WHAT HAPPENED IN
TERMS OF WHAT GOVERNORS THE
CONDUCT, A TRIAL CAN BE BROUGHT
INTO BEAR IN THE SENTENCING
CONTEXT.
HOWEVER, THIS CASE IS NOT THE
RIGHT CASE.
IF YOU DO ISSUE AN OPINION ON
THIS, YOU'RE, IN FACT, CARVING
OUT EXCEPTIONS, AND THEN YOU GO
DOWN THAT PATH OF, WELL, HOW
MUCH OF AN ABSENCE?
AND WHAT HAPPENED DURING THE
ABSENCE?
HOW MUCH OF A PREJUDICE?
AND THEN IT BRINGS US FULL
CIRCLE TO WAS THERE ANY HARM?
>> IF YOU COULD BRING YOUR
ARGUMENT TO A CONCLUSION.
>> CERTAINLY, YOUR HONOR.
>> YOU'RE BEYOND YOUR TIME.
>> AND I'VE LAID OUT THE
REALISTIC RESULT IN TERMS OF
WHAT WE WOULD DO, WHAT WOULD
HAPPEN IN A CASE OF
RESENTENCING, WHETHER OR NOT
THIS IS THE ONE CASE WHERE
JUSTICE WILL BE SERVED BY GIVING
THAT RELIEF.
BUT I WOULD URGE THE COURT FIRST
AND FOREMOST THAT THERE'S NO
CONFLICT IN THESE TWO DECISIONS.
THEY, THE LAW AS ANNOUNCED BY
THIS COURT AND AS EXISTS, ARE
TRUE AS APPLIED TO EACH OF THE
CASES IN KNOWN FACT, AND I WOULD
ASK YOU TO DECLINE JURISDICTION
AS IT WAS INPROVIDENTLY GRANTED,
EVEN THOUGH THE STATE CONCEDED
IT FIRST, CORRECT?
>> YES.
THANK YOU VERY MUCH.
>> THANK YOU.
>> REBUTTAL?
>> I THINK THIS IS THE PERFECT
CASE TO SAY WHAT IS AND WHAT
ISN'T OKAY UNDER 3.800.
THIS IS THE PROBLEM AS APPELLATE
LAWYERS, WE NEED TO KNOW IF IT'S
NOT FUNDAMENTAL ERROR, DO WE
HAVE TO RAISE EVERY SINGLE
ISSUE?
>> SO YOU WOULD AGREE THAT THE
PUBLIC DEFENDERS WHO ARE MOSTLY
THE ONES THAT ARE GOING TO GET
INTO THIS, WOULD NOT SEE, WOULD
NOT TRY TO GET AROUND A LACK OF
PRESERVATION FOR NO OBJECTION
MADE DURING THE ENTIRE
SENTENCING HEARING SAYING, OH, I
CAN NOW FOLLOW 3800B AND I'LL
HAVE EVERYTHING --
>> NO, I DON'T THINK SO.
>> YOU AGREE THAT THAT WOULD BE
A MISUSE OF 3800B?
>> CERTAINLY.
FIRST OF ALL, I DON'T THINK THIS
CASE IS --
>> I WANT TO MAKE SURE THAT
THAT -- BECAUSE THAT WOULD BE
THE PERVERSION OF THE RULE.
AND HERE WHAT YOU'RE SAYING IS
THAT IT WASN'T -- YOU SAYING IT
WASN'T PRESERVED, YOU AGREE WITH
THAT, BUT YOU, THEN, WANT US TO
LOOK AT IT AS WHETHER OR NOT
IT'S FUNDAMENTAL.
>> CORRECT.
>> ALL RIGHT.
AND IF WE DISAGREE THAT IT'S
FUNDAMENTAL ERROR, THEN YOU
LOSE.
>> THAT'S RIGHT.
>> OKAY.
BUT YOU, YOU DON'T WANT TO LOSE
BECAUSE WE SAY YOU SHOULD HAVE
PRESERVED IT THROUGH 3800B?
>> RIGHT.
IF APPELLATE COUNSEL HAS TO
RAISE EVERY SINGLE, EVERY CASE
THAT WE GET WE HAVE TO RAISE A
3800B MOTION, THAT'S WHERE I
THINK MAYBE THE COURT IS GOING.
IT'S EVERY SINGLE SENTENCING, IF
IT'S ERROR, IF IT'S FUNDAMENTAL
ERROR, WHATEVER IT IS, ARE WE
GOING TO HAVE TO --
>> YOU WOULD ADMIT THAT THE A
FAIR BREEDING OF BRANDON AND
HARVEY THAT THIS COURT WAS
HEADED DOWN THAT ROAD, THAT ANY
SENTENCING ERROR MEANT ANY
SENTENCING ERROR, RIGHT?
>> WELL, I THINK THAT'S TRUE,
BUT I DON'T THINK THIS IS A
SENTENCING ERROR, SO PERHAPS
THIS COURT HAS TO BE CLEAR --
>> ANY ERROR OCCURRING DURING
THE SOMEBODIESING PROCESS IS NOT
A SENTENCING ERROR.
>> WHAT IS IS IT?
IS IT FUNDAMENTAL ERROR?
TO ME, THIS WAS FUNDAMENTAL
ERROR.
>> LET'S BE CLEAR ABOUT JUSTICE
PARIENTE'S QUESTION TO YOU
BECAUSE IT'S SORT OF THE OTHER
SIDE OF WHAT YOU'RE POSTURING
ABOUT THE NECESSITY TO DO IT,
AND THAT IS ASSUME YOU WOULD
AGREE ON A CLEARER HYPOTHETICAL
WHERE SOME QUESTION WAS ASKED OF
A WITNESS AT THE SENTENCING
HEARING, AND THE LAWYER DOESN'T
OBJECT, AND WHATEVER THAT
QUESTION GETS ANSWERED, AND THAT
EVIDENCE GOES IN.
AND LATER AN APPELLATE LAWYER,
LIKE YOURSELF, LOOKS AND SAYS,
MY GOSH, LAWYER SHOULD HAVE
OBJECTED.
I THINK THERE'S A PROBLEM WITH
THAT.
MAYBE IT'S EVEN FUNDAMENTAL
ERROR, OKAY?
THAT'S NOT AN APPROPRIATE 3800B
ISSUE.
>> CORRECT.
>> THAT'S AN ISSUE, IF IT ENDS
UP BEING RULED THAT IT WAS
WEIGHED BY -- WAIVED BY FAILURE
TO OBJECT, IT WASN'T PRESERVED,
SO BE IT.
BUT YOU DON'T GO TO 3.800B AND
SAY HERE'S ALL THE ISSUES AND
THE ADMISSION OF EVIDENCE AND
EVERYTHING THAT I'VE BEEN ABLE
TO FIND.
IT'S NOT A FIRST-ROUND APPEAL.
>> THAT'S CORRECT.
>> SO WHY DON'T YOU COME BACK,
THEN, AND SEE IF YOU CAN
CONVINCE US IN THE LAST COUPLE
OF MINNESOTAS THAT FUNDAMENTAL
ERROR OCCURRED HERE.
BECAUSE THE STATE'S MADE A
PRETTY PER SWAIS I HAVE CASE
THAT, MY GOSH, YOUR CLIENT
SEEMED TO REALLY GET A GOOD DEAL
HERE CONSIDERING THE WAY THAT
THIS TRIAL JUDGE STARTED OUT
SAYING, BOY, I'M GOING TO UNLOAD
ON THIS ONE AND THEN ENDING UP
WITH JUST WHAT?
A YEAR OVER THE MINIMUM?
>> I DON'T THINK THE END JUSTIFY
IT IS MEANS.
>> BUT THAT'S WHAT I JUST WANT
YOU TO HELP US --
>> FIRST OF ALL, THIS WASN'T
SIMPLY A MINTARIAL FUNCTION THAT
COUNSEL WASN'T PRESENT.
HE WASN'T PRESENT.
JUDGE ASKED THE VICTIM 44
QUESTIONS, OKAY? COUNCIL WASN'T
PRESENT THE STATE DIDN'T SAY
ANYTHING IT WAS JUDGE ASKING
44 QUESTIONS I DON'T THINK
IT MATTERS.
>> WELL YOU SEE IF YOU SPEAK
THE NUMBERS SPEAK OF
SUBSTANCE, THAT WAS HARM
FULL TO YOUR CLIENT.
>> ABOUT QUESTIONS ABOUT HER
RELATIONSHIP WITH -- I DON'T
HAVE A PROBLEM WITH ACT --
ASKING SEEMED TO ME PERSONAL
QUESTIONS ABOUT -- WHO ABOUT
HER CHILD, ABOUT HER
RELATIONSHIP!!$$!!!!!!!!!!!!!!!!!!!!!!
RELATIONSHIP, WITH MANN
WHETHER, JACKSON -- SHE --
SEEMED TO ME THAT IT WAS
IRRELEVANT FOR SENTENCING
PROCEEDING IT SEEMED
IRRELEVANT!!$$!!!!!!!!!!!!!!!!!!
IRRELEVANT, TO WHAT THE
JUDGE NEEDED TO UNDERSTAND.
>> -- HAD IT IMPACT
SENTENCING!!$$!!!!!!!!!!!!!!!!!!
SENTENCING?
>> WELL, I THINK IF DEFENSE
COUNSEL HAD BEEN THERE MAY
HAVE OBJECTED SHE MAY HAVE
DONE BETTER THAN FIVE YEARS
IN PRISON IN SEVEN YEARS'
PROBATION WE DON'T KNOW WHAT
WOULD HAVE HAPPENED SHE WAS
LOOKING AT 30 YEARS JUDGE
GAVE HER FIVE.
WITH DEFENSE --
>> SENTENCING DEFENSE
COUNSEL USE AS STATE SAID
USED THE I'M VERY'S LACK OF
NOTICE THAT TESTIMONY.
>> WELL, I WILL WILL READ
WHAT YOU -- THE JUDGE SAID,
THE JUDGE SAID, AT
SENTENCING I HAVE TAKEN INTO
ACCOUNT THE STATE'S
RECOMMENDATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!!!
RECOMMENDATION, I HAVE TAKEN
INTO ACCOUNT THE RASHGZ MADE
BY TO THAT VICTIM AT THE END
OF THE TRIAL, WHO --
>> IN THIS VINDICTIVE FRAME
OF MIND.
>> YOUR -- INTO YOUR TIME I
WANT TO BE SURE YOU HAD
OPPORTUNITY TO FULLY ANSWER
JUSTICE ANSTEAD$$'S QUESTION
WHY THIS IS NOT HARMLESS AND
JUSTICE CANTERO HAS QUESTION
BEFORE YOU FINISH DID YOU
FINISH ALL YOU WANTED TO ADD
TO --
>> DID.
>> ARE YOU SAYING THAT --
WITH THE, THE DEPRIVATION OF
COUNSEL, THAT WE CAN'T
CONSIDER HARMLESS ERROR?
OR ARE YOU SAYING YES YOU
CAN CONSIDER IT, BUT THAT IT
IS NOT HARMLESS ERR NOR THIS
PARTICULAR CASE.
>> I THINK IF IT WAS --
MINUTE ISTERIAL FUNCTION
DEFENSE COUNCIL WASN'T
PRESENT FOR IN THIS INSTANCE
WHERE THERE WAS SEVEN PAGES
OF TESTIMONY, THAT DEFENSE
COUNSEL WASN'T NOTIFIED THE
JUDGE THE JUDGE HIMSELF
QUESTIONED THE $$VICTIM'S
PROSECUTOR DIDN'T THE JUDGE
QUESTIONED THE VICTIM I
DON'T THINK THAT HARMLESS
ERROR I THINK BEYOND THAT.
>> JUSTICE CANTERO ONE LAST
QUESTION.
>> DUFF A RIGHT TO
CROSS-EXAMINE THE VICTIM AT
THIS HEARING INTO YES, IT IS
ONE THING VICTIM JUST
SUBMITS A STATEMENT, FINE
NOBODY NEEDS TO QUESTION THE
VICTIM, THAT IS 2350I7B
EVERYBODY CAN LOOK AT THAT
STATEMENT IF VICTIM IS UNDER
OATHS TESTIFYING -- DEFENSE
HAS AN OBLIGATION TO
QUESTION HER.
>> DID YOU IDENTIFY
QUESTIONS THAT YOU WOULD
HAVE HAVE ASKED INTO SORRY.
>> DID YOU IDENTIFY ANY
QUESTIONS THAT YOU WOULD
HAVE ASKED THE VICTIM?
DIDN'T THE VICTIM CONTINUE
TO TESTIFY AFTER A COUNCIL
FROM THE GONE.
>>.
>> DID DEFENSE COUNSEL ASK
VICTIM ANY QUESTIONS THEN.
>> NO.
>> WITH THAT YOU HAVE
EXHAUSTED REBUTTAL TIME
THANK YOU VERY MUCH WE WILL
CAKE THE GUYS CASE UNDER
ADVISEMENT