Thursday, December 22, 2022

Per curiam affirmance, without opinion

In "Case of the Lucky Loser," [first broadcast 27 Sept. 1958]Perry Mason cites a real case on the issue of "double jeopardy." The case is on-point and controlling, but Perry loses his motion anyway. One reviewer of the episode wrote:

Perry cites a real case, State v. McDaniels, 137 Cal. 192 (1902), that is right on point and controlling precedent. The judge did not have discretion. In almost all Mason episodes, the judges are dead on right in their rulings, and neither Mason nor Burger wins via a bad call. But this ruling adverse to Perry, but wrong, sets up the pivotal scene between Perry and "Evil Steve," [played by Douglas Kennedy] the Balfour family fixer, who is the embodiment of an anti-Mason. Steve wants Perry to present no defense for Ted Balfour and win on appeal, which will minimize exposure to the Balfour family and to "Evil Steve."

In ruling against Perry, the judge [played by Morris Ankrum] makes clear that he wants the appellate court, rather than the trial court, to rule on the double jeopardy issue. He is punting, knowing that Perry will get another chance, likely to win.

A different situation is presented by an appellate "per curiam affirmance," wherein the appellate court is also punting (without comment), but wherein the appellant is unlikely to get another chance.

In a brief in Howarth vs. State:

Petitioner is an 8th grade middle school drop-out. However, even Petitioner is aware enough of right or wrong, to know, the Fifth District Court may not affirm w/o opinion, a decision or ruling made by the Ninth Judicial Circuit, which on its face, fails to meet the essential requirements ofthe law.

In a post titled OH NO! NOT A PER CURIAM AFFIRMED DECISION ON MY APPEAL, Michael Muniz writes of the concept of per curiam affirmances:

Perhaps, that may be a common misconception held by the general public[52] and some Florida appellate practitioners, alike, that may not have yet recognized that the five Florida district courts of appeal, generally, are courts of last resort[53] except for a narrow classification of particular cases, including those certified to the Florida Supreme Court as being of great public importance and certified conflict cases wherein multiple district court decisions conflict on points of law that necessitate Supreme Court resolution.[54] The late Florida appellate First DCA Judge Rawls seems to have had an enduring effect on appellate PCA common law jurisprudence.


VLX Properties, Inc. v. Southern States Util., Inc., 792 So. 2d 504, 509 (Fla. 5th DCA 2001) (en banc) (“But neither precedent (nor law of the case) should be used to institutionalize or justify error. We are no more perfect as judges than we are as individuals. We make mistakes. Neither the public nor the Bar expect us to always be right; they do expect us, however, to always be forthcoming. If it appears that we have made a mistake, we should not hesitate to correct it and, if it is still within our power to do so, we should mitigate any damage we have caused. Neither this court nor the law is served by our adhering to a previous position which we now believe to be wrong.”); Blackwell v. State, 86 So. 224, 237-38 (Fla. 1920) (Browne, C.J., dissenting) (“In such a case, as forcibly said by Chief Justice Bleckley [for the Georgia Supreme Court],… the maxim for a Supreme Court, supreme in the majesty of duty as well as in the majesty of power, is not stare decisis, but fiat justitia. Let this decision be right, whether other decisions were right or not.”).


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