A Judge’s Courtroom Rules Get Struck Down

They say a good lawyer knows the lawyer, a great lawyer knows the judge. If you simply know the law here in Orange, Seminole, or Osceola County, you’re only halfway there. An attorney must also know the judge. There are several different rules that control the behavior of criminal defense attorneys and defendants in criminal courtrooms. But sometimes, the judge’s rules cross the line. Let’s examine one such instance.

Back in 2010, Jeffrey Tishner was placed on five years probation for burglary and grand theft. Tishner violated his probation (VOP) with a new DUI arrest, and the VOP had a $10,000. Tishner v. Cameron, Sheriff, 75 So.3d 787 (Fla. 2nd DCA 2011). Tishner bonded out on the VOP, hired an attorney, and the criminal defense attorney waived his appearance at the VOP arraignment, pursuant to Florida Rule of Criminal Procedure 3.160(a). This criminal rule states that “counsel may file a written plea of not guilty at or before arraignment and thereupon arraignment shall be deemed waived.”

Here’s the catch: “everybody” knows that this judge requires a defendant’s appearance at VOP arraignment. This is the judge’s personal policy, and it differs from the Florida Rules (obviously…). Tisner failed to appear at his arraignment, upon advice of his attorney–yet the judge issued a no bond capias for his failure to appear (even though the appearance was deemed waived). The appeals court overturned this judge’s warrant, citing other courts which have held that “ordering all defendants and counsel to appear at arraignment arbitrarily denied [defendants] the privilege afforded by rule 3.160.” Albritton v. White, 948 So.2d 852 (Fla. 2d DCA 2007).

Can judge’s get away with this, simply modifying our rules of criminal procedure? No. They can’t. It’s funny though, I’ve been in front of several judges who require an appearance at VOP arraignments, and it’s never been a problem for me because that is–sometimes–a great time to get a feel for the state’s evidence and plea offer. If you don’t show up to that vop arraignment, it’s tough to get a plea offer out of the state prior to the next status hearing. So, it’s fine to waive these vop dates under certain circumstances (for example, if the vop is a definite hearing, why bother getting a plea offer at arraignment?), but make sure you know the judge’s rules before skipping court.