So sorry MH, should have included the ref documents.
No, HHJP never called it a formal notice, the DT just morphed it into a "formal notice to the State Attorney Office" in their appeal.
HHJP wording on page 5 of 13
http://www.wesh.com/pdf/28848066/detail.html
DT 's wording on page 10 of 18
http://www.wftv.com/pdf/28896667/detail.html
And I have been hunting for that appendix A, but can not locate it (yet)
But please note , in both wordings, the date as of February 2, 2010 is referred to.
For me , a non legal mind, the whole probation issue is a no brainer.
Just modify the probation conditions and only apply those that could not be accomplished while in jail. Not a double jeopardy issue then in my non legal simple mind..
Could the Appellate Court even rule like that?
Tks so very much MH for that appendix link.
And nope , only contact with State Attorney Office on 2/2/2010 was that standard victim notification, "no contact letter" to victim Amy, c/o State Attorney Office.
Not a formal notice by your expert opinion.
Neither could I find even any notice to State Attorney Office that probation was completed successfully in that appendix A.
Do hope you have time to peruse that appendix A since I am not a lawyer.
It looks to me that the "formal notice" is another tall tale by the DT.
Would such grossly overstated (dishonest?)wording in the appeal be looked at by the Appellate Court with disdain and influence their subsequent ruling?
Especially since pseudo news shows ran with the "formal notice" and made Orange County Justice system look like an unjustified joke.
I do not see any formal notice that probation was successfully completed.
The letter to Amy H. in care of the office of the State's Attorney is a letter telling Amy the conditions of probation. It tells her what to do if the "no-contact" order is violated. It's informative and for the victim.
This letter is sent to a victim and as you have noted, it's kind of a standard thing.
Since the letter is generated to explain "what all this will mean" for the victim, ..remember there was an issue of restitution here as well......and since the letter is tailored as a communication from DOC to the victim,
It is what it is.
How this can be morphed into "a formal notice to the prosecution" escapes me.
I'm certainly open to suggestion.
But, oh puhleeeeeeeeeeeeeeeeeze:
Are we waiting for the defense to append the appendix with the unfolding of the mystery :dracula:"Notice Statute."
(Because then we will all understand; heard that one before)
It would have to read something like:
(A)Formal notice should be an original document, signed and dated. The document will be certified and addressed to the party receiving notice, or to that party's legal representatve, or to one authorized per the statute to receive such notice on behalf of the Party.
Speaking of certified, if the notice is to be accomplished by a mailing , hand delivery being an option, the mailing will be certified as well.
Furthermore, a return receipt helps maintain clarity relative to the issue of formal notice. Toss that in.
(B)The :croc: exclusion:
Formal notice is also accomplished by sending the Party being notified a piece of mail which is pretty much a form letter that doesn't entirely address
the subject matter that triggered the need for a notice (unless you read it under a black light when there's a full moon).
Oh, And please make sure to address the formal notice to a Party other than the party being notified. The :uthere: approach.
Moving Along---
The disdain factor/What can the Appellates do?
:razz:
Keep in mind.
The appeal is not a new trial, not an evidentiary hearing. The defense team doesn't get an absolute right to engage in oral arguments to the Court, i.e. to the panel of 3 Judges. That privilege is granted per request on a case by case basis.
The Judges are deciding whether or not to UPHOLD the final order of Judge Perry.
That's what the defense wants quashed.
ython:
The question is whether or not Judge Perry's order is legal and should stand.
They have the power to affirm Judge Perry's order (Please enjoy your probationary period).
They can find that it is not in the spirit of the law.
nono: no probation but we have a small gift of 49 tickets to fly to any other state, please pick one!)
ok made up the last part.....
They could also send the whole shebang back to Judge Perry's Court with instructions. (remand with a to- do list to make it legal---not saying it isn't legal).
That's the nature of Appellate Courts in general.
Because they focus entirely on the legality of the done-deed in this case, they are working off the record of the proceedings. (Hence the need to provide those transcripts but who knew
).
The Disdain factor, if it exists, won't be a part of their decision.
They will issue a decision based entirely on the law and the legality of the current probation order that was issued by Judge Perry.
They will explain the decision pursuant to the law and based upon the law.
MH :wolf:
sharing opinion
Regarding the position of the defense, currently on the notice bandwagon, Why wouldn't you argue that there is constructive notice? Why call it formal when it isn't. Arguing for constructive gives a little leeway.
And in the event there was actual legal notice to the state, I am of the "who cares" school of thought.
It's their client; they knew what was happening, when it was happening, and when it should have happened.
Don't pass the :moose:
