florida supreme court oral argument transcripts

Florida Supreme Court Oral Argument Transcripts

file:///Volumes/www/gavel2gavel/transcript/07-659.html[12/21/12 3:17:22 PM]

The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. Thisservice is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legaldocuments, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.

Bertha Jackson v. State of Florida

SC07-659

THANK YOU.THE NEXT CASE ON OURCALENDAR THIS MORNING ISJACKSON 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 TOSPEAK A LITTLE LOUDER THERE.>> MAY IT PLEASE THE COURT.MY NAME IS PAMELA IZACK WSWITSWITH THE PUBLIC DEFENDER'SOFFICE THE 10th DISTRICTEROFFICE AND I REPRESENT THEPETITIONER IN THIS CASEBERTHA JACKSON.FIRST I WOULD LIKE TO SAYWHAT THIS CASE IS NOT.THIS IS NOT A SENTENCINGIRERCASE NOR IT IS IS IT A CASEWHERE THE COUNSEL FAILED TOMAKE CONTEMPORANEOUSOBJECTION.THIS CASE INVOLVES LACK OFCOUNSEL IN THE CRITICAL CASEOF THE PROCEEDINGS.IT IS FUNDAMENTAL ERROR.>> WELL IF YOU ARE SAYING ITIS KIND OF CONTRADICTORY TOSAY IT DOESN'T INVOLVE ALACK OF OBJECTION BUT YETIT'S FUNDAMENTAL ERROR.>> WELL IT INVOLVES THE FACTTHET THE DEFENSE -- INSECONDDCOES SAID THERE WAS A LACKOF OBJECTION.THE ARGUMENT HERE IS DEFENSECOUNSEL WASN'T PRESENT INORDER TO MAKE OBJECTION.>> BUT I THINK THAT WOULDYOU AGREE THAT FIRST OF ALL,AND I WILL ASK THE STATETHIS QUESTION THAT ANY ERROR



OCCURRING DURING THESENTENCING PROCESS IS NOTSUPPOSED TO BE SENTENCINGPURPOSE WITH 3 AG.I PROBABLY AGREE WITH YOU.I SHARE JUDGE ALTENBURN'SDISMAY ABOUT WHAT'S GOING ONBUT ON THE OTHER HAND WEAGREE THAT THE RECORD'SCLEAR.HE DIDN'T HAVE COUNSEL FOR APART OF THE VICTIM'STESTIMONY.BUT THE LAWYER GOT ON AT THEPOINT WHERE AT SOME POINTTHE WITNESS WAS STILL THERE.THE WITNESS AND THE LAWYERSAYS NOTHING AND SO THEQUESTION IS IS IN THIS,WHERE IT'S NOT TOTAL LACK OFCOUNSEL, AS IN GUN SWROL DSSWHERE THERE WAS A --GONZALEZ WHERE THERE WROS ACOMPLETE LACK OFREPRESENTATION, ISN'T THATDENIAL OF THE RIGHT TOCOUNSEL SUBJECT TO AHARMLESS ERROR ANALYSIS?>> I THINK IF IN THIS CASETHE PROBLEM WAS THAT BY THETIME THE DEFENSE COUNSEL WASNOTIFIED, THE JUDGE HADALREADY ASKED 44 QUESTIONS,SEVEN PAGES OF TESTIMONY.THE VICTIM TESTIFIED TO LOTSOF INFORMATION THAT WASN'TIN THE TRIAL, BY THE TIMEDEFENSE COUNSEL WAS NOTIFIED,THE ERROR HAD ALREADYOCCURRED -->> WHAT WAS THE -- WHAT WASTHE -- I GUESS I'M LOOKINGAT THIS IS A VICTIM THATENDS UP SAYING NO, I DON'TTHINK THAT YOUR CLIENTSHOULD GET A 30-YEARSENTENCE.IT LOOKS LIKE IT, AND THATWHAT WOULD THE CROSSEXAMINATION HAVE BEEN WHENHE WASN'T PRECLUDED FROMCROSS-EXAMINING TO MAKE ITANY BETTER THAN THE WITNESSWAS SORT OF SYMPATHETIC TO



YOUR CLIENT.>> WELL, THE VICTIM WASSYMPATHETIC TO THE CLIENTBUT THE JUDGE WAS ASKINGQUESTIONS THAT I, HARD TOKNOW BECAUSE DEFENSE COUNSELWASN'T THERE WHO COULD'VEOBJECTED BUT THE JUDGE ISASKING QUESTIONS ABOUT THEHISTORY OF WHETHER THESE TWOWOMEN SHARED THE SAME MEN,WHETHER THE VICTIM FATHER OFTHE CHILD -- IF THE FATHEROF THE CHILD THAT THE VICTIMHAD WAS ANY RELATION TO -->> WELL, DON'T YOU HAVE TOSHOW THEN HERE THAT COUNSELBEING ABSENT, THAT THEREWERE, THERE WAS EVIDENCETHAT CAME IN THAT THE JUDGESHOULDN'T HAVE CONSIDEREDAND WOULDN'T THAT, THAT BETHE, THE WAY TO APPROACHTHIS?YOU HAVEN'T SHOWN THAT.YOU JUST SAID WELL HE WASN'TTHERE FOR PART OF IT.IT SEEMS LIKE THERE WAS AMIX UP, A MISUNDERSTANDING,AND, AND THAT IT WASN'T ANYINTENTIONAL ATTEMPT TO DENYTHE CLIENT COUNSEL.>> WELL, THERE WAS ANATTEMPT TO DENY COUNSEL.>> WELL, WHAT I'M ASKING YOUIS DON'T YOU HAVE TO SHOWNOW WHAT OBJECTION -- WHATSOMETHING OBJECTIONABLE THATCAME IN THAT PREJUDICED YOURCLIENT.>> I THINK IT'S PER SEFUNDAMENTAL ERROR WHENDOLLAR IS A SENTENCINGPROCEEDING AND DEFENSECOUNSEL IS ABSENT AND THEJUDGE KNOWING THAT HECOMMITTED REVERSIBLE ERROR.HE SAID, AND I QUOTE FROMTHE RECORD,.>> WE'RE NOT GOING TO TAKETHE JUDGE'S VIEW OF -->> WELL, LET ME ASK YOUBECAUSE WAS THERE ASUBSEQUENT SENTENCING



HARING.>> THERE WAS.>> AND DID YOUR CLIENT HAVECOUNSEL?>> YES.>> WAS HE ABLE TO PRESENTTESTIMONY?>> THERE WAS NO TESTIMONYTAKEN AT THAT TIME.>> WOULD HE HAVE BEEN ABLETO TAKE -->> I DON'T KNOW.I'M NOT SURE.I DON'T KNOW.IT WAS JUST A SENTENCING,THE DEFENSE COUNSEL SPOKE ONTHE RECORD.THERE WAS NO TESTIMONY TAKENAT THAT TIME.>> WAS THERE A REQUEST TOPRESENT ANY TESTIMONY.>> NO, THERE WAS NOT.>> SO THERE WOULD'VE BEEN ANOPPORTUNITY TO SUBS-- GET ACOPY OF THE TRANSCRIPT, OFWHATEVER HAPPENED WHILE HEWAS NOT ON THE PHONE, ANDCOULD HAVE PRESENTED THE,THE WITNESS BY PHONE AT THESUBSEQUENT SENTENCINGHEARING.>> I THINK THAT'S POSSIBLE.THE PROBLEM IS THAT BY THETIME HE WAS, THE REASONTHERE WAS NO OBJECTION WASBY THE TIME HE WAS,.>> WE UNDERSTAND THAT.WE UNDERSTAND THERE COULDN'THAVE BEEN OBJECTION DURINGTHE TIME THAT -- HE WASTESTIFYING.BUT, OUT OF THE UNITEDSTATES SUPREME COURT, WE'RENOT OBLIGATINGED I GUESS TOFOLLOW IT IN LOOKING AT OURSBUT IN SIXTH AMENDMENT SAYSTHAT THERE'S ONE THING WHENTHERE'S DEPRIVATION OF THERIGHT TO COUNSEL FOR THEENTIRE PROCEEDING BUT WEHAVE PERMITTED.HARMLESS, NONCAPITAL CASESWHERE THE EVIL CAUSE BY THE6th AMENDMENT IS LIMITED TO



THE ERRONEOUS ADMISSION OFPARTICULAR EVIDENCE.SO THAT'S WHAT I'M ASKINGWELL WHAT WAS ERRONEOUS ANDISN'T THAT THE WAY TO SAYWELL THAT WAS WOULD'VE BEENONLIED TO AND SHOULDN'T HAVECOME IN?>> WELL, WHAT WAS ELOANIOUSIS THE JUDGE WENT WAY BEYONDWHAT THE INFORMATION CAMEOUT AT TRIAL.HE WAS ASKING THE VICTIMABOUT HER PERSONALRELATIONSHIP WITHMS. JACKSON, ASKING HERPERSONAL QUESTIONS ABOUT THEFATHER OF HER CHILD, WHETHERTHEY SHARED MEN, WHETHER ITWAS, THAT TO ME WASOBJECTIONABLE.HAD I BEEN THERE, I PROBABLYWOULD'VE OBJECTED BECAUSE IDON'T THINK THAT WASRELEVANT TO SENTENCING.>> WELL YOU KEEP SAYING HEHAD NO OPPORTUNITY TO OBJECTAND HE FINALLY GOT ON THEPHONE WITH THE JUDGE,CORRECT?>> AFTER SEVEN PAGES.>> HE FINALLY GOT ON THEPHONE WITH THE JUDGE.>> YES.>> AND THE JUDGE ADMONISHEDHIM BECAUSE HE HAD SAIDNOBODY LEAVE THE COURTROOM.I'M GOING TAKE THE TESTIMONYOF THE VICTIM SO SHE DOESN'THAVE TO FLY BACK LATER,CORRECT.>> YES.>> AND HE LEFT ANY.>> IT WAS NEVER CLEAR ON THERECORD WHY HE LEFT, WHERE HEWENT.>> I UNDERSTAND THAT BUT HEDID LEAVE.>> YES.>> AND AT SOME POINT, THEYWERE ABLE TO GET HIM ON THEPHONE.>> YES.>> AND THE JUDGE SAID DID



YOU NOT UNDERSTAND THAT IWAS GOING TO TAKE THEVICTIM'S STATEMENT SO THATSHE WOULDN'T HAVE TO COMEBACK FROM NORTH CAROLINA ANDDEFENSE SAID NO I'M SORRY ICERTAINLY DIDN'T AND THECOURT, I THOUGHT I MADE ITCLEAR, I'VE TAKEN PART OFOUR STATEMENT YOU CAN LISTENTO THE REST I WILL GOFURTHER AND TELL YOU WHATI'VE GOTTEN SO FAR.OKAY.IT SEEMS TO ME AT THAT POINTCOUNSEL HAD EVERYOPPORTUNITY TO OBJECT ANDSAY JUDGE, TO TELL YOU THETRUTH, I THINK WE SHOULDSTART ALL OVER IN THEQUESTIONING THE WITNESSBECAUSE I WASN'T PRESENT ANDHE LACKED COUNSEL AND THATWAS A PERFECT OPPORTUNITY TO,OKAY, LET'S JUST GO BACKFROM SCRATCH.THAT'S START THE QUESTIONINGOVER AND YOU CANPARTICIPATE.SO TO SAY THAT HE HAD NOOPPORTUNITY TO OBJECT QUITEFRANKLY I THINK IS TOTALLYMISCONSTRUES THE RECORD.>> I THINK WHAT HAPPENED WASTHAT BY THE TIME HE WASNOTIFIED AS TO WHAT HAPPENED,IT WAS ALREADY TOO LATE.>> WELL, YOU SAY IT'S TOOLATE.WAS IT TOO LATE TO SAY JUDGEI THINK WE SHOULD STARTOVER.HE DID NOT HAVE HIS 6thAMENDMENT 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 SENTENCINGPROCEEDING IN THE TRIALCOURT, YOUR CLIENT WASREPRESENTED BY COUNSEL ON



APPEAL, CORRECT.>> YES.>> AND HAD AN OPPORTUNITY TOREVIEW THE TRANSCRIPT PRIORTO THE TIME WHEN A 3.800 B 2MOTION WOULD'VE BEENREQUIRED?>> CORRECT.>> IT SEEMS TO ME THAT INALL OF THE LITIGATION NOWTHAT'S FLOWED OUT OF THISPROVISION OF THE RULE THATWE HAVE A SITUATION IN WHICHIT'S, IT IS CLEAR THAT THERULE IS DESIGNED TO TRY TOCATCH THE SENTENCING ERRORS.AT THE TIME THAT THEY CAN BEPRESENTED SO AS TO DEEM WITHTHEM THEN.-- DEAL WITH THEM THENRECOGNIZING FOR SEVERALREASONS BUT REGARDLESS OFTHAT WHY IS THIS NOT ASENTENCING AIRER?>> WELL, THERE WAS NOSENTENCE IN PLACE.THERE WASN'T A SENTENCE -- ASENTENCING ERROR INVOLVESTHE STATUTORY MAXIMUMSENTENCE OR INVOLVES THELENGTH OF SENTENCE ORIMPOSING A MANDATORYSENTENCE.THERE WAS NO SENTENCE.>> THERE WAS A SENTENCE.>> THERE WASN'T A SENTENCEHERE.THIS WAA SENTENCINGPROCEEDING WHERE THE JUDGEWAS TAKEN TESTIMONY FROM THEVMENT -- VICTIM.>> DID THE JUDGE HAND OUT ASENTENCE?>> NOT AT THAT POINT.NO.THERE HAD BEEN NO SENTENCEIMPOSED AND MS. JACKSON DIDFILE A MOTION TO CORRECTSENTENCING ERROR, WHICH THERULE APPLIES IN THIS CASEBECAUSE THERE WAS ADISCREPANCY BETWEEN THE ORALPRONOUNCEMENT AND THEWRITTEN PRONOUNCEMENT, WHICH



IS PRECISELY WHAT 3800 ISFOR, TO CORRECT THE ERRORSAT SENTENCING AFTER SHE WASSENTENCED SHE WAS ACTUALLYCONVICTED OF AGGRAVATEDBATTERY WITH A WEAPON.THE DOCUMENT SHOWEDAGGRAVATED BATTERY WITH AFIREARM.38 MOTION WAS FILED.THE JUDGE SAID YOU'RECORRECT.THERE'S A PROBLEM WITH THEDOCUMENTS AND HE REISSUEDTHE SENTENCE.I MEAN, THIC THE SENTENCEHADN'T CHANGED BUT THEDOCUMENTATION CHANGED.THAT'S EXACTLY WHAT THE 3800WAS FOR BUT IN THIS INSTANCETHERE WAS NO SENTENCE.>> SO YOU ARE ARGUING, INYOUR OPINION IT IS YOURPOSITION THAT 3800 B ISLIMITED TO INSTANCE WHERESTHE WRITTEN SENTENCE SOMEHOWILLEGAL OR CONTRARY TO THERULES OR ANYTHING LIKE THATOR, IS, IS CONTRADICTORY TOTHE ORAL SENTENCE, THINGSLIKE THAT?>> THAT'S, THAT'S HOW I READTHE RULE.THAT'S WHAT MADDOX HAS, ALONG LIST OF WHAT'S INVOLVEDIN A 3800.>> THE PROBLEM I SEE WITHTHAT IS THAT THIS COURTSEEMS TO HAVE EXPANDED IF,IF INDEED THAT WAS THEORIGINAL INTENT OF THE RULE,IT SEEMS TO HAVE EXPANDEDTHE REACH OF 38 B BEYONDTHOSE KINDS OF THINGS TOERRORS THAT ACTUALLYOCCURRED DURING THESENTENCING HEARING.ISN'T THAT CORRECT?>> THAT'S CORRECT.>> SO WE DON'T HAVE TORECEDE FROM A FEW TACE CASESIN ORDER TO ADOPT YOURPOSITION.>> I DON'T THINK YOU'D HAVE



TO RECEDE AT ALL.I DON'T THINK THAT ACONSTITUTIONAL VIOLATIONWHERE DEFENSE COUNSEL'S NOTPRESENT AND THE SECOND DCASAID THIS WAS A DUE PROCESSVIOLATION.>> I AM NOT ARGUING THATPOINT.I AM NOT ASKING YOU ABOUTTHAT PART.I AM ASKING YOU ABOUT THEPART WHERE THIS COURT HASEXPANDED THE REACH OF 3.800B BEYOND ERRORS THATOCCURRED IN THE SENTENCINGORDER.WOULDN'T WE HAVE TO RECEDEFROM SOME OF THOSE CASES.>> I DON'T THINK THAT THISCALLS FOR RECEDING FROMANYTHING.I THINK THAT THIS IS ACONSTITUTIONAL VIOLATIONTHAT STILL FUNDAMENTAL ERRORSTILL APPLIES AIOHAVEN'TTHROWN OUT FUNDAMENTALERROR.>> I GUESS THAT'S WHY WEWERE SPENDING THE FIRST HALFOF THE ARGUMENT ON HOW ISTHIS FUNDAMENTAL ERROR ANDJUSTICE CANTERO WAS POINTINGOUT WHERE AN OBJECTION COULDBE MADE.3800 B WAS DESIGNED TOREDUCE THE NUMBER OF APPEALSIF SOMETHING COULD BECORRECTED WHILE STILL AT THETRIAL STAGE AND SO HEREAGAIN WHAT WE'RE TALKINGABOUT IS WHETHER EITHER WAYBY FILING THIS 3.800 BCOULD'VE SAID OKAY I'D LIKETHE JUDGE TO TAKE -- NOTTAKE INTO CONSIDERATION THEVICTIM'S TESTIMONY.IN OTHER WORDS, SOMETHINGTHAT COULD HAVE BEENCORRECTED.WHAT YOU'RE SORT OF SEEKINGIS YOU WANT A WHOLE NEWSENTENCING PROCEEDING.>> CORRECT.



>> BECAUSE YOU'RE POINTINGTO THE FACT THAT FOR SOMEPART OF THE VICTIM'STESTIMONY, THE DEFENDANTWASN'T REPRESENTED.AND I GUESS I'M STILL HAVINGTROUBLE, MAYBE JUST WITH THEGENERAL NOTION, BECAUSE I, ICAN SEE HOW IF THERE IS NOLAWYER DURING THE WHOLESENTENCING PROCEEDING ITWOULD BE KIND OF SILLY TOSAY WELL BRING THAT UP AT3.800 B BECAUSE THE ONLYREMEDY IS A WHOLE NEWSENTENCING PROCEEDING BUTHERE WE'RE STILL DEALINGWITH A PART OF IT.SO MAYBE MY OTHER QUESTIONIS IS THIS REALLY, IS THISSECOND DISTRICT OPINION INCONFLICT WITH THE, THE FIRSTDISTRICT OPINION BECAUSE ITINVOLVES A COUNSEL THAT WASNOT PRESENT FOR PART OF THEPROCEEDING.THE OTHER INVOLVES COUNSELTHAT WAS WHOLLY ABSENT FORTHE ENTIRE PROCEEDING.AND SHOULD THAT MATTER.>> SHOULD IT MATTER?WELL, IT MATTERS HERE ITHINK.I THINK THAT THE WHOLESENTENCING PROCEEDINGINVALID.I THINK THAT MS. JACKSON'SENTITLED TO A WHOLE NEWSENTENCING PROCEEDING WHEREDEFENSE COUNSEL IS SITTINGTHERE WITH HER.DEFENSE COUNSEL HAS ANOPPORTUNITY TO OBJECT TO TOEVERY SINGLE QUESTION THATIS BEING ASKED.I ALSO WANT TO POINT OUT,AND THIS WASN'T ADDRESSEDANYWHERE, THIS WAS EX PARTEPROCEEDING.THE JUDGE AND THE PROSECUTORWERE SITTING THEREQUESTIONING THIS WITNESS,DEFENSE COUNSEL WASN'T THERE,THERE'S NO MENTION ANYWHERE



IN ANY OF THE SECONDDISTRICT OPINIONS THAT THISWAS EX PARTE PROCEEDING.>> WASN'T THE DEFENDANTTHERE?>> THE DEFENDANT WAS THEREUNREPRESENTED.>> SO IT WASN'T EX PARTE.>> BOTH PARTIES WERE THEREHE JUST DIDN'T HAVE COUNSEL.I JUST WANT TO CLARIFY.THE QUESTION IS WHETHER SHEHAD COUNSEL.SHE WAS PRESENT.>> SHE WAS PRESENT BUT SHEWAS NEVER ASKED DO YOU WANTTO HAVE SOMEBODY ELSEREPRESENT YOU SHE WAS NEVERASKED IF SHE WANTED TOREPRESENT HERSELF.IN ESSENCE IT WAS AS IF SHEWASN'T SITTING THERE BECAUSESHE -- WE DON'T KNOW WHATSHE KNEW WHAT DIDN'T KNOWWHAT HER RIGHTS WERE.NOBODY TOLD HER WHAT HERRIGHTS WERE.>> WHAT WAS THE PERIOD OFTIME BETWEEN THIS PROCEEDINGWHICH WAS RIGHT AFTER THETRIAL, CORRECT?>> YES.>> WHAT WAS THE LENGTH OFTIME BETWEEN THAT AND THEACTUAL SENTENCING?>> I THINK IT WAS ABOUT FOURWEEKS.>> FOUR WEEKS.AND WAS THE TRANSCRIPT EVERASKED FOR BY DEFENSE COUNSELOR THE DEFENDANT?>> NO.I'D LIKE TO RESERVE THEREMAINDER OF MY TIME FORREBUTTAL.>> OKAY.>> GOOD MORNING.MAY IT PLEASE THE COURT.MY NAME IS DOW.I AM HERE ON BEHALF OF THESTATE OF FLORIDA.IT'S MY PRIVILEGE.THE FIRST QUESTION THAT THECOURT SHOULD ASK IS, IS



RESENTENCING A BENEFICIALCHOICE FOR THE PETITIONERUNDER THIS SET OF FACTS.AND I WOULD ARGUE TO YOUTHAT WHAT HAPPENED DOWNBELOW DID NOT HAPPEN DURINGA CRITICAL STAGE OF THEPROCEEDING.>> MAYBE WE OUGHT TO STARTREALLY WITH THE RULE BECAUSEEVEN THOUGH THIS IS AFASCINATING SUBISSUE, LET'STALK ABOUT THE STATE'SPOSITION AT 300 B.>> CERTAINLY, YOUR HONOR.>> MY CONCERN WOULD BE THATIF WE SAY THESE ARE SUBJECTTO 300 B, THEN THAT WOULDMEAN THAT I, SOMEBODY COULDNOT OBJECT TO ENTIRESENTENCING PROCEEDING ON ALLSORTS OF EVIDENTIARY THINGS,FINISH THAT PROCEEDING, ANDTHEN FILE A 3.800 B AND GO,THOSE WERE ALL ERRORS THAT IDIDN'T OBJECT TO AT THE TIMEAND NOW THOSE WOULD BECONSIDERED ON APPEAL AS IFTHEY WERE PRESERVED AND IDON'T THINK WE WEREINTENDING TO DO THAT.>> CORRECT.>> WE WERE INTENDING TO FIXTHINGS, AND I KNOW MAYBEWE'D LIKE A BRIGHT LINE BUTTHINGS THAT COULD BECORRECTABLE AND PREVENT ANAPPEAL SUCH AS, YOU KNOW,THINGS THAT ARE IN THESENTENCE ITSELF OR AARISINGFROM THE SENTENCE.NOT EVIDENTIARY MATTERS SOWHAT'S THE STATE'S POSITIONABOUT THAT.IS IT MORE LIKE JUDGESTRINGER?I MEAN HE SEEMS TO HAVE KINDOF CAPTURED, MAYBE IS WHATI'M THINKING.>> WELL, I WOULD LIKE TO GOBACK TO JUSTICE PARIENTE'S--, YOUR OWN DEFINITION OFWHAT SENTENCING ERROR MEANSAND YOU WROTE IN HARVEY v.



STATE, YOU SAID THERE THATSENTENCING ERRORS ARE THOSETHAT ARE CAPABLE OF BEINGADDRESSED AND CORRECTED.AT THE TRIAL COURT LEVEL.SO BY DEFINITION I WOULDURGE YOU TO CONSIDER THATUNDER THE FACTS OF THIS CASE,THE ERROR IF ANY WASCERTAINLY CAPABLE OF BEINGADDRESSED AT THE TRIAL COURTLEVEL AS YOU HAD SEEN.>> WHAT WOULD HAVE HAPPENED?THEY FILE AD3.800 B AND WHATWOULD THEN HAVE OCCURRED?WHAT YOU WOULD HAVE WANTEDTHE JUDGE TO HAVE DONE?>> THERE ARE SEVERAL OPTIONSAT THE MOMENT THAT DEFENSECOUNSEL JOINED UP WITH THECOURT BY TELEPHONE.HE APPEAR BIDE TELEPHONE ANDHE SAID -->> 3.800 -- NOTHING HAPPENEDDURING THE HEARING.YOU NOW HAVE A 3.800 BFILED.>> IT, IT -->> WHAT WOULD THE JUDGE THENDO?THE SENTENCE HAS ALREADYBEEN ENTERED.THE VICTIM IS BACKEN NORTHCAROLINA.HOW WOULD THE JUDGE CORRECTSNAT THAT?>> TRIAL COURT CAN CORRECTIT NO DIFFERENT THAN IN AVINDICTIVE SENTENCING CASE,YOUR HONOR, IN TERMS OF, YOUKNOW, THE, THE COMPLAINTHERE IS THAT WHATEVER WASTAKEN DURING THIS PROCEEDINGPLAY INTO THE JUDGE'SULTIMATE DECISION INSENTENCING.THAT'S THE WHOLE GIST OF IT.>> HOW WOULD IT BE CORRECTED?DWL I'M ASKING YOU WHETHERTHE STATE'S POSITION ISWHETHER THIS COULD BEPRESERVED THROUGH A 3.800 B.>> AT THAT MOMENT,PARTICULARLY IN, IN THAT



MOTION TO CORRECT SENTENCEUNDER 3.800 B THEY COULD ASKFOR A RESENTENCE BY ADIFFERENT JUDGE.>> AREN'T YOU REALLY THOUGHBY EXTENDING THIS CONVERTINGTHE 3.800 B INTO A FIRSTAPPEAL?THAT IS THAT, IF WE TAKETHIS ISSUE AND WE DON'T HAVETO GO MUCH FURTHER THENSAYING, WELL, THERE WASEVIDENCE RECEIVED AT THESENTENCING HEARING, AND SOMEOF IT WAS OBJECTED TO ANDSOME OF IT WASN'T AND THEJUDGE RECEIVED IT AND NOWWE'VE GOT THE POTENTIAL THATWE WOULD CONVERT 300 B INTOA FIRST APPEAL WHERE NOWTHEY'D SAY, WELL, WE THINKTHE JUDGE ERRED IN RECEIVINGTHIS EVIDENCE.OR WE THINK THE JUDGE ERREDIN EXCLUDING THIS EVIDENCE.AND I'M HAVING DIFFICULTYWITH THAT BEING THE PURPOSEOF -->> OF THE RULE.>> OF 3.800 B, WHICH ISREALLY WAS INTENDED TO CATCHSOME ERRORS THAT, WELL, ATONE CATEGORY WOULD BE THATPROBABLY EVERYBODY WOULDAGREE, THAT, YOU KNOW, THATTHERE WAS A MISTAKE AND WEJUST DON'T WANT TO WAIT FORTHE TIME THAT IT TAKES TOGET INTO THE APPELLATE COURTBECAUSE OF ALL THAT DELAY.>> YES.>> TO CORRECT SOMETHING THATCOULD'VE BEEN CORRECTEDEARLIER BUT NOT AS A FIRSTAPPEAL.THAT IS.>> I UNDERSTAND.>> AND THIS IS WHERE I'MHAVING TROUBLE.>> AND I AGREE WITH YOU.I AGREE WITH YOUWHOLEHEARTEDLY IN THAT WEDON'T NEED TO RESORT THERULE EVEN TO CORRECT THIS



ERROR.NOW I WILL TELL YOU WHY.WHAT HAS BEEN OVERLOOKED INALL OF THIS IS THAT THEVICTIM'S STATEMENT HERE ISDIFFERENT THAN LET'S SAY ANAFT SUPPORTING AN ENHANCEDSENTENCE OR AN AFT REGARDINGPRIOR CONVICTION.YOU KNOW, BY CONSTITUTIONALAMENDMENT, THE, THE VICTIMHAS THE RIGHT TO COME BEFORETHE COURT BEFORE SENTENCINGOR AFTER SENTENCING HEARING.>> WELL NOW YOU ARE DEALINGYOU KNOW, WITH THE MERITS OFTHE, OF THE UNDERLYING ISSUE,AND ISN'T THAT REALLY WHATWE SHOULD FOCUS ON THEN?>> YEAH.>> SO, SO WHY DON'T YOU GOAHEAD AND HELP US WITH THATBECAUSE I MUST SAY I'MHAVING SOME DIFFICULTY -->> I UNDERSTAND.>> WITH THE FACT THAT, THATA, REALLY WHAT THE TRIALJUDGE DID WAS START THESENTENCING HEARING AT THATTIME AND IS IT APPEARS THATTHERE'S LOTS OF FAULT TO GOAROUND INCLUDING ESPECIALLYTHE DEFENSE LAWYER BECAUSEIF WE TAKE THE RECORD THEWAY IT IS, IT APPEARS THEDEFENSE LAWYER WAS TOLD ONTHE RECORD, OKAY, WITH THETRANSCRIPT AVAILABLE TO US,NOT TO LEAVE.>> THAT'S CORRECT.>> AND WAS AND THE DEFENSELAWYER DID LEAVE.NOT ONLY DID THE DEFENSELAWYER LEAVE, LATER WHEN THEDEFENSE LAWYER WAS ON THEPHONE WHILE THIS WAS GOINGON AFTER HAVING LEFT ASJUSTICE CANTERO INDICATES,HE DID NOT SAY TO THE TRIALJUDGE, WELL, HOLD IT.YOU KNOW, I'M GOING TO COMERIGHT OVER THERE AND, YOUKNOW, MAYBE WE CAN STARTTHIS THING OVER AGAIN OR



SOMETHING.AND THEN TO COMPOUND IT EVENFURTHER, WHEN THERE WAS ASENTENCING HEARING LATER, HEDIDN'T SAY, WELL, JUDGE,WAIT A MINUTE.YOU KNOW, I'VE HAD TIME NOWTO THINK ABOUT IT.AND I DON'T THINK YOU SHOULDPROPERLY CONSIDER THE, THETESTIMONY YOU TOOK OF THEVICTIM BECAUSE I WASN'TTHERE OR WHATEVER.BUT WE GO ALL THE WAY BACKTO THE FACT THAT THERE WAS APERIOD OF TIME WHEN THEJUDGE WAS ASKING -->> JUSTICE ANSTEAD?>> WE'LL TAKE -- THE COURTWILL TAKE A 10-MINUTERECESS.>> 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, THEGAVEL 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 TOPARTICIPATE 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 OFTHE SENTENCING HEARING.\E WITH A, AN APPRECIABLE PART OF THE TESTIMONY OF THE VICTIM,YOU KNOW, FOR SENTENCING PURPOSES WHERE THE DEFENDANT IS UNREPRESENTED BYCOUNSEL.\E AND THAT'S THERE, THAT IS -- AND WE CAN'T, YOU KNOW, IT'S THERE.\E AND SO I AMHAVING DIFFICULTY WITH THE FACT THAT WE ESSENTIALLY HAD THE SENTENCING HEARINGSTART EARLY, AND THAT HE'S UNREPRESENTED.\E AND AS MUCH AS I, I HAVE TO SAY LOOKINGAT THE CONDUCT OF DEFENSE COUNSEL, I FEEL LIKE JUSTICE CANTERA.\E THERE WERE MANYOPPORTUNITIES 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 AFUNDAMENTAL PROBLEM OF THE SENTENCING PROCEEDING COMMENCING, AND THE DEFENDANTBEING DEPRIVED OF COUNSEL.\E ASSUMING THAT COUNSEL WAS THERE, THE STATUTE, THESIOUXAL.\E >> WE'VE SEEN IT IN MANY INSTANCES WHERE VICTIMS OF CRIMES WOULD COMEBEFORE THE COURT AND EXPRESS, AMONG OTHER THING, OUTRAGE AND HIGHLY-EMOTIONALOUTBURSTS.\E DURING THOSE OCCASIONS, THE DEFENSE DOESN'T HAVE THE RIGHT TO CROSSEXAMINE.\E THEY DON'T HAVE THE RIGHT TO THE VICTIM, CONTAIN YOURSELF, WE DON'T WANTTO HERE R HEAR THESE OUTBURSTS OR CHALLENGE THE BASIS OF THE IMPACT THAT IT HAS ONTHE VICTIM AS FAR AS THE CRIME GOES.\E MY ANSWER TO YOU IS WE DON'T HAVE TO RESORT TO3800B2 TO RESOLVE THE ISSUE BEING PRESENTED.\E FURTHERMORE, WHY IS IT -- IS ITFUNDAMENTAL?\E >> I HAVE TO GET BACK TO SOMETHING BECAUSE WE'RE HERE, THERE'S ACONFLICT OF THAT, WHETHER 3800B IS REQUIRED FOR THESE KINDS OF ERRORS.\E WHAT -- DOESTHE STATE'S POSITION THAT IF THEY HAD, LET'S JUST -- OBJECTED THROUGH FILING A 3 800 BMOTION THAT THEN THE APPELLATE COURT COULD LOOK AT THIS ON THE BASIS OF AS IF IT HADBEEN PRESERVED AND LOOK AT IT HARMLESS ERROR.>>>> IT IS A SENTENCING ERRORIN THE SENSE THAT ITAFFECTED THE SENTENCEULTIMATELY.



LOOK, THE SECOND DISTRICTSAID HE DIDN'T RAISE THEISSUE AS A MOTION TO CORRECTSENTENCING ERROR FILEDPURSUANT TO FLORIDA RULE OFCRIMINAL PROCEDURE 300 B 2.THE FIRST DISTRICT THAT'S INFLICT SAYS YOU WOULDN'T HAVETO FILE A 308 B 2.WHAT I'M SAYING IS WHAT I'MARE ASKING IS IT THE STATE'SPOSITION THAT THIS HAD TO BEFILED AS A SENTENCING ERRORTHROUGH 3800 B AND THEN ITWOULD'VE BEEN PRESERVED ORTHAT 3800 B IS IRRELEVANT TOTHIS.IT'S, YOU LOOK AT IT AS IF300 B DIDN'T EXIST.THAT IT IS, IT SHOULD'VEBEEN OBJECTED TO BELOW ANDIF IT WASN'T OBJECTED TO, ITWOULD'VE BEEN LOOKED AT AS ACLAIM OF FUNDAMENTAL ERROR.>> THE STATE'S POSITION ISTHAT IT COULD HAVE BEENRESERVED AND PRESERVEDBELOW.>> BUT THAT MAKES -- WHY?THAT'S WHAT I ASKED YOUBEFORE.IN OTHER WORDS, IF THELAWYER HAD FILE AD3800 B ANDTHE JUDGE DIDN'T RULE WITHINTHE TIME PERIOD, THEN THEAPPELLATE COURT WOULD BEOBLIGATED TO TREAT IT AS IFIT HAD BEEN PRESERVED.WHAT I'M ASKING YOU IS,UNLESS WE'RE GOING TO MAKETHIS RULE IS GOING TO BECOMEAN ABSURDTY, WHICH IS TO SAYIT WASN'T DESIGNED TO, TOADDRESS CERTAIN KINDS OFERRORS, BUT THERE STILLWOULD BE A CLASS OFFUNDAMENTAL ERRORS THAT YOUWOULD ADDRESS ON APPEAL BUTYOU CAN'T TURN SOMETHINGTHAT'S NOT TRULY MEANT FOR300 B INTO A PRESERVED ERRORSIMPLY BY FILING THATMOTION.>> THAT'S WHAT YOU SAID IN



MADDOX AND HARVEY.>> SO YOU -- SO THEREFOREYOU AGREE THAT YOU DISAGREEWITH THE SECOND DISTRICT'SREADENING?-- REASONING.>> I DISIEGRY TO THE EXTENTTHAT THERE'S NO CONFLICT.BETWEEN THE DECISIONS.AND MAYBE I'M NOTUNDERSTANDING JUSTICEPARIENTE'S -->> YOU ARE SAYING IT WASN'TPRESERVED BY A 3800 B 2 ANDYOU ARE SAYING OR I'M SAYINGTHIS SHOULDN'T HAVE TO BE --IT WOULD BE RIDICULOUS TOHAVE THIS GO THROUGH A 300 B2 BECAUSE THE JUDGE CAN'T DOANYTHING ABOUT IT AT THATPOINT.WHAT WOULD WE ENCOURAGE, IMEAN THIS IS SORTAFFFRIENDLY QUESTION OF THESTATE.WHY WOULD WE ENCOURAGESOMEONE TO SIT BACK DOSOMETHING -- NOTHING DURINGTHE 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 FACEOF -- AND THAT'S THE CRIMINAL -->> OKAY, ON THE OTHER HAND, IFSOMETHING IS TRULY A FUNDAMENTALERROR, SUCH AS THE COMPLETEABSENCE OF AN ATTORNEY -- WELL,THEN YOU AGREE THE FIRSTDISTRICT IS RIGHT?>> THE FIRST DISTRICT OPINION ISRIGHT ON ITS OWN FACT.>> ALL RIGHT, SO, THEREFORE,WHAT YOU WOULD SAY IS WE SHOULDADOPT WHAT JUDGE STRINGER SAIDIN HIS CONCURRENCE IN THISCASE -->> YOU CERTAINLY COULD DO THAT.AND AND ALSO APPROVE THE FIRSTDISTRICT'S OPINION AS WELL?>> WELL, THE DECISIONS ARE RIGHTON THEIR OWN FACTS AND MERIT,



JUDGE.YOU WOULDN'T HAVE TO PRESERVETHAT -->> CORRECT.>> THAT WOULD REMAIN THE SAMEPOSITION BECAUSE THAT'S ACONSTITUTIONAL IMPERATIVE.YOU CANNOT DENY THE ACCUSED THERIGHT TO COUNSEL.BUT I WANTED TO GO BACK ANDADDRESS THE FACTS, BECAUSE ITHINK IT'S IMPORTANT TO SEE THATRESENTENCING IS NOT THE IDEALSITUATION IN THIS CASE.WHEN YOU LOOK AT THE FACTS, YOUSEE CLEARLY THAT JUSTICE WILLNOT BE SERVED.BEFORE SENTENCING THE JUDGE SAIDSEVERAL TIMES, THIS IS NOT ASENTENCING HEARING.I'M NOT PASSING ANY JUDGMENT,AND YOUR COUNSEL AND YOU WILLHAVE A CHANCE TO DO SO LATER.>> WAS THAT IMMEDIATELY AFTERTHE TRIAL?>> YES.>> AFTER THE GUILTY VERDICT?>> YES.>> AND THAT'S WHY THE VICTIM WASSTILL THERE?>> CORRECT.AND I DON'T KNOW IF THIS ISFEASIBLE, BUT, YOU KNOW, SHE'SHERE, SHE'S BEEN FLOWN IN ATPUBLIC EXPENSE, AND SHE WOULDLIKE TO SAY SOMETHING ATSENTENCING, AND THE JUDGE WASAMENABLE TO THAT.HE FACED 30 YEARS IN PRISON.THE JUDGE EXPRESSED THATSLASHING THE VICTIMS IN THE FACEAND HEAD, LEAVING POSSIBLYPERMANENT INJURY INCLUDING THELOSS OF SIGHT IN ONE EYE IS ACONCERN, AND HE SAYS THE CONDUCTWAS SIMILAR TO WAR CRIMINALS.AND HE CITED YUGOSLAVIA TROOPSDISFIGURING WOMEN.AND HE SAID I HAVE A CONCERNABOUT THAT, AND MY FIRSTINCLINATION IS TO IMPOSE THEMAXIMUM.AND DEFENSE COUNSEL ADOPTED THEVICTIM'S EXPRESSION, AND SAID,



JUDGE, THE VICTIM WAS NOT OF AVINDICTIVE FRAME OF MIND, AND IWOULD URGE YOU TO CONSIDER WHATSHE SAID.NOT ONLY DID THEY WAIVE THEISSUE, THEY EXPRESSLY ADOPTEDWHAT THE VICTIM SAID IN TERMS OFA LEAN LENIENT SENTENCE.PETITIONER WAS IN CUSTODY AS OFMAY 2005.>> WHAT WAS THE MIN MOMENTUMSENTENCE SHE COULD HAVERECEIVED?>> SHE SCORED OUT TO 39.4 MONTHMONTHS.AND THE JUDGE SAID I'M NOTOBLIGATED TO INPOSE THE MINIMUM.IN IN CASE -->> HAVE WE GOTTEN TO A POINT INSENTENCING WHERE THE JUDGE COULDHAVE IMPOSED 34 MONTHS TO 30YEARS AND IT'S NOT REVIEWABLE?>> I'M NOT SAYING THAT AT ALL,YOUR HONOR.>> COULD HAVE DONE ANYTHING UPTO 30 YEARS?>> YES.THAT'S WHAT -- YES.>> CRIMINAL PUNISHMENT CODECASE, RIGHT?>> YES.SO IN THAT REGARD, IF ANY, INYOUARED TO THE PETITIONER'SBENEFIT.>> BUT ISN'T THAT A CHOICE THEDEFENDANT HAS TO MAKE?THAT IS, IF IT TRULY ISFUNDAMENTAL, YOU KNOW, LET'SJUST SAY THEY HAD A SENTENCINGHEARING, AND THE LAWYER DIDN'TSHOW UP.BUT THE JUDGE WENT AHEAD WITHTHE SENTENCING HEARING, AND THESAME OUTCOME, YOU KNOW?BUT I WONDER WHETHER OR NOT THATTHE TWO CONCEPTS OF HARMLESSERROR AND FUNDAMENTAL R OR --ERROR REALLY AREN'T MUTUALLYEXCLUSIVE.THAT IS IF THE DEFENDANT CHOOSESTO ASSERT THE RIGHT, THE RIGHTTO THE EFFECTIVE ASSISTANCE OFCOUNSEL AT THE SENTENCINGHEARING, WHICH NOBODY DENIES THE



DEFENDANT HAD THE RIGHT TO, IT'STHE DEFENDANT, NOW, THAT'S GOINGTO BE TAKING THE RISK -->> YES.>> YOU KNOW, ALL LOGIC SUPPORTSWHAT YOU'RE SAYING, THAT IT SURELOOKS LIKE SHE CAME OUT SMELLINGLIKE A ROSE.>> YES.>> WHATEVER.BUT THE REALITY IS WE HAVE THEREDEPRIVATION OF COUNSEL AT ACRITICAL STAGE, IN ESSENCE, THEBEGINNING OF THE SENTENCEINGHEARING.>> YES, YOUR HONOR, BUT U.S.SUPREME COURTS HAVE TIME ANDTIME AGAIN SAID THAT A BRIEF ABABSENCE FROM A CRITICALPROCEEDING SUCH AS TRIAL ISMEASURED BY THE HARMLESS ERRORANALYSIS.I MEAN, THIS COURT HAS SAID SOON THE CASES THAT PETITIONERSCITED TO OUT OF THE FOURDISTRICTS.THERE WAS A BRIEF ABSENCE OFCOUNSEL IN SEVERAL FACTUALPATTERNS.ONE WAS A JURY CHARGECONFERENCE.ONE WAS DURING THE GIVING OFJURY INSTRUCTIONS, ONE WASCOUNSEL WAS TEMPORARILYUNAVAILABLE FOR JURYDELIBERATIONS.SO I ASK YOU TO USE THOSEFACTUAL PATTERNS AS WELL -->> ARE THOSE IN THE SAMECATEGORY AS WHEN SOMEONE ISSPEAKING TO THE COURT AND GIVINGINFORMATION UPON WHICH SOMEACTION'S GOING TO BE TAKING?WHEN A JURY'S SITTING IN A JURYROOM DELIBERATING, THERE'S NOTMUCH HAPPENING THAT A LAWYERREALLY DOES.AREN'T THOSE DIFFERENT THAN WHENYOU HAVE SOMEONE SPEAKING TO THECOURT?>> IN THE SENSE THAT SOMEONE ISSPEAKING TO THE COURT, I WOULDSUBMIT TO YOU THAT TRIAL WASOVER.



THE RIGHT TO CONFRONTATION HADALREADY BEEN FULLY EXERCISED.>> BUT THIS HAS TO BE CONSIDEREDTO BE PART OF THE SENTENCINGPROCESS.I MEAN, EVEN THOUGH YOUROPPONENT POINTS OUT, YOU POINTOUT THAT THE SENTENCE WAS NOTACTUALLY HANDED DOWN THAT DAY,THIS WAS STILL PART OF THESENTENCING PROCEEDINGS.BECAUSE THIS WAS CONSIDEREDINFORMATION THAT WAS CONSIDEREDIN HANDING DOWN THE SENTENCE.>> YES.>> WHICH BRINGS US BACK FULLCIRCLE TO 3.800B AND THAT WE'VEGOT TO ARTICULATE SOME WAY THATTRIAL COURTS ARE GOING TO BEABLE TO FIGURE OUT WHENSOMETHING -- AND THE APPELLATECOURTS, WHEN SOMETHING COMESUNDER A 3.800B AND WHEN IT DOESNOT.BECAUSE WE HAVE LANGUAGE IN OURCASES WHICH TALK ABOUT THIS ITHAS TO DO WITH ANY SENTENCINGERROR.AND ANY SENTENCING ERROR SOUNDSTO ME LIKE IT MEANS SOMETHINGTHAT HAPPENS DURING THESENTENCING PROCEEDING.>> I AGREE WITH YOU.BUT THIS IS NOT THE RIGHT CASEOR THE RIGHT VEHICLE TO DO THAT.I MEAN, THIS CASE IS UNIQUE INITS OWN FACTS.AND IF YOU START CARVING OUT, IMEAN, JUSTICE -- EXPRESSED THISCONCERN IN MAD COX.SHE SAID I'VE LISTED SEVERALCATEGORIES OF SENTENCING ERRORS,BUT I'M NOT SATISFIED THEY'REALL EXHAUSTIVE, AND I RESERVE --IN YOUR WORDS, A SPECIES OFERRORS THAT WE WILL ALWAYS VIEWAS CONSTITUTIONAL ISSUE.WHETHER SENTENCING TRIALRELATED, AND I WOULD URGE YOU TOCOME BACK TO THAT POINT IN THESENSE THAT WHAT HAPPENED INTERMS OF WHAT GOVERNORS THECONDUCT, A TRIAL CAN BE BROUGHTINTO BEAR IN THE SENTENCING



CONTEXT.HOWEVER, THIS CASE IS NOT THERIGHT CASE.IF YOU DO ISSUE AN OPINION ONTHIS, YOU'RE, IN FACT, CARVINGOUT EXCEPTIONS, AND THEN YOU GODOWN THAT PATH OF, WELL, HOWMUCH OF AN ABSENCE?AND WHAT HAPPENED DURING THEABSENCE?HOW MUCH OF A PREJUDICE?AND THEN IT BRINGS US FULLCIRCLE TO WAS THERE ANY HARM?>> IF YOU COULD BRING YOURARGUMENT TO A CONCLUSION.>> CERTAINLY, YOUR HONOR.>> YOU'RE BEYOND YOUR TIME.>> AND I'VE LAID OUT THEREALISTIC RESULT IN TERMS OFWHAT WE WOULD DO, WHAT WOULDHAPPEN IN A CASE OFRESENTENCING, WHETHER OR NOTTHIS IS THE ONE CASE WHEREJUSTICE WILL BE SERVED BY GIVINGTHAT RELIEF.BUT I WOULD URGE THE COURT FIRSTAND FOREMOST THAT THERE'S NOCONFLICT IN THESE TWO DECISIONS.THEY, THE LAW AS ANNOUNCED BYTHIS COURT AND AS EXISTS, ARETRUE AS APPLIED TO EACH OF THECASES IN KNOWN FACT, AND I WOULDASK YOU TO DECLINE JURISDICTIONAS IT WAS INPROVIDENTLY GRANTED,EVEN THOUGH THE STATE CONCEDEDIT FIRST, CORRECT?>> YES.THANK YOU VERY MUCH.>> THANK YOU.>> REBUTTAL?>> I THINK THIS IS THE PERFECTCASE TO SAY WHAT IS AND WHATISN'T OKAY UNDER 3.800.THIS IS THE PROBLEM AS APPELLATELAWYERS, WE NEED TO KNOW IF IT'SNOT FUNDAMENTAL ERROR, DO WEHAVE TO RAISE EVERY SINGLEISSUE?>> SO YOU WOULD AGREE THAT THEPUBLIC DEFENDERS WHO ARE MOSTLYTHE ONES THAT ARE GOING TO GETINTO THIS, WOULD NOT SEE, WOULDNOT TRY TO GET AROUND A LACK OFPRESERVATION FOR NO OBJECTION



MADE DURING THE ENTIRESENTENCING HEARING SAYING, OH, ICAN NOW FOLLOW 3800B AND I'LLHAVE EVERYTHING -->> NO, I DON'T THINK SO.>> YOU AGREE THAT THAT WOULD BEA MISUSE OF 3800B?>> CERTAINLY.FIRST OF ALL, I DON'T THINK THISCASE IS -->> I WANT TO MAKE SURE THATTHAT -- BECAUSE THAT WOULD BETHE PERVERSION OF THE RULE.AND HERE WHAT YOU'RE SAYING ISTHAT IT WASN'T -- YOU SAYING ITWASN'T PRESERVED, YOU AGREE WITHTHAT, BUT YOU, THEN, WANT US TOLOOK AT IT AS WHETHER OR NOTIT'S FUNDAMENTAL.>> CORRECT.>> ALL RIGHT.AND IF WE DISAGREE THAT IT'SFUNDAMENTAL ERROR, THEN YOULOSE.>> THAT'S RIGHT.>> OKAY.BUT YOU, YOU DON'T WANT TO LOSEBECAUSE WE SAY YOU SHOULD HAVEPRESERVED IT THROUGH 3800B?>> RIGHT.IF APPELLATE COUNSEL HAS TORAISE EVERY SINGLE, EVERY CASETHAT WE GET WE HAVE TO RAISE A3800B MOTION, THAT'S WHERE ITHINK MAYBE THE COURT IS GOING.IT'S EVERY SINGLE SENTENCING, IFIT'S ERROR, IF IT'S FUNDAMENTALERROR, WHATEVER IT IS, ARE WEGOING TO HAVE TO -->> YOU WOULD ADMIT THAT THE AFAIR BREEDING OF BRANDON ANDHARVEY THAT THIS COURT WASHEADED DOWN THAT ROAD, THAT ANYSENTENCING ERROR MEANT ANYSENTENCING ERROR, RIGHT?>> WELL, I THINK THAT'S TRUE,BUT I DON'T THINK THIS IS ASENTENCING ERROR, SO PERHAPSTHIS COURT HAS TO BE CLEAR -->> ANY ERROR OCCURRING DURINGTHE SOMEBODIESING PROCESS IS NOTA SENTENCING ERROR.>> WHAT IS IS IT?IS IT FUNDAMENTAL ERROR?



TO ME, THIS WAS FUNDAMENTALERROR.>> LET'S BE CLEAR ABOUT JUSTICEPARIENTE'S QUESTION TO YOUBECAUSE IT'S SORT OF THE OTHERSIDE OF WHAT YOU'RE POSTURINGABOUT THE NECESSITY TO DO IT,AND THAT IS ASSUME YOU WOULDAGREE ON A CLEARER HYPOTHETICALWHERE SOME QUESTION WAS ASKED OFA WITNESS AT THE SENTENCINGHEARING, AND THE LAWYER DOESN'TOBJECT, AND WHATEVER THATQUESTION GETS ANSWERED, AND THATEVIDENCE GOES IN.AND LATER AN APPELLATE LAWYER,LIKE YOURSELF, LOOKS AND SAYS,MY GOSH, LAWYER SHOULD HAVEOBJECTED.I THINK THERE'S A PROBLEM WITHTHAT.MAYBE IT'S EVEN FUNDAMENTALERROR, OKAY?THAT'S NOT AN APPROPRIATE 3800BISSUE.>> CORRECT.>> THAT'S AN ISSUE, IF IT ENDSUP BEING RULED THAT IT WASWEIGHED BY -- WAIVED BY FAILURETO OBJECT, IT WASN'T PRESERVED,SO BE IT.BUT YOU DON'T GO TO 3.800B ANDSAY HERE'S ALL THE ISSUES ANDTHE ADMISSION OF EVIDENCE ANDEVERYTHING THAT I'VE BEEN ABLETO FIND.IT'S NOT A FIRST-ROUND APPEAL.>> THAT'S CORRECT.>> SO WHY DON'T YOU COME BACK,THEN, AND SEE IF YOU CANCONVINCE US IN THE LAST COUPLEOF MINNESOTAS THAT FUNDAMENTALERROR OCCURRED HERE.BECAUSE THE STATE'S MADE APRETTY PER SWAIS I HAVE CASETHAT, MY GOSH, YOUR CLIENTSEEMED TO REALLY GET A GOOD DEALHERE CONSIDERING THE WAY THATTHIS TRIAL JUDGE STARTED OUTSAYING, BOY, I'M GOING TO UNLOADON THIS ONE AND THEN ENDING UPWITH JUST WHAT?A YEAR OVER THE MINIMUM?>> I DON'T THINK THE END JUSTIFY



IT IS MEANS.>> BUT THAT'S WHAT I JUST WANTYOU TO HELP US -->> FIRST OF ALL, THIS WASN'TSIMPLY A MINTARIAL FUNCTION THATCOUNSEL WASN'T PRESENT.HE WASN'T PRESENT.JUDGE ASKED THE VICTIM 44QUESTIONS, OKAY? COUNCIL WASN'T PRESENT THE STATE DIDN'T SAYANYTHING IT WAS JUDGE ASKING44 QUESTIONS I DON'T THINK IT MATTERS. >> WELL YOU SEE IF YOU SPEAKTHE NUMBERS SPEAK OF SUBSTANCE, THAT WAS HARM FULL TO YOUR CLIENT. >> ABOUT QUESTIONS ABOUT HERRELATIONSHIP WITH -- I DON'THAVE A PROBLEM WITH ACT -- ASKING SEEMED TO ME PERSONALQUESTIONS ABOUT -- WHO ABOUTHER 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 WHATWOULD 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 INTOACCOUNT THE STATE'S



RECOMMENDATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!!!RECOMMENDATION, I HAVE TAKENINTO ACCOUNT THE RASHGZ MADEBY TO THAT VICTIM AT THE ENDOF THE TRIAL, WHO -->> IN THIS VINDICTIVE FRAME OF MIND.>> YOUR -- INTO YOUR TIME I WANT TO BE SURE YOU HAD OPPORTUNITY TO FULLY ANSWER JUSTICE ANSTEAD$$'S QUESTION WHY THIS IS NOT HARMLESS ANDJUSTICE CANTERO HAS QUESTIONBEFORE YOU FINISH DID YOU FINISH ALL YOU WANTED TO ADDTO -->> DID. >> ARE YOU SAYING THAT -- WITH THE, THE DEPRIVATION OFCOUNSEL, THAT WE CAN'T CONSIDER HARMLESS ERROR?OR ARE YOU SAYING YES YOU CAN CONSIDER IT, BUT THAT ITIS NOT HARMLESS ERR NOR THISPARTICULAR CASE.>> I THINK IF IT WAS -- MINUTE ISTERIAL FUNCTION DEFENSE COUNCIL WASN'T PRESENT FOR IN THIS INSTANCEWHERE 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 ISONE THING VICTIM JUST SUBMITS A STATEMENT, FINE NOBODY NEEDS TO QUESTION THEVICTIM, THAT IS 2350I7B EVERYBODY CAN LOOK AT THAT STATEMENT IF VICTIM IS UNDEROATHS 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

florida supreme court oral argument transcripts

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