|FLW Mobile - For easier navigation on your mobile phone!|
Research Associates, Inc.
PLACE AN ORDER
2/24-Hour Online Access
Florida Law Weekly
Sample FLW Online
Week In Review
Current Issue Index
2017 Cumulative Index
2016 Cumulative Index
REVIEW GRANTED - CUMULATIVE LISTING
Cases in which the Supreme Court of Florida has granted review. Subject matter is taken from Florida Law Weekly headnotes and may not directly reflect issues for review.
ACEVEDO v. STATE, 174 So.3d 437, 40 Fla. L. Weekly D1752b (Fla. 4DCA 2015). Supreme Court Case No. SC15-1873 (Acevedo v. State). Order dated March 16, 2016. Oral argument set by separate order. Criminal law--Sentencing--Correction--Mandatory minimum twenty-five year sentence as a dangerous sexual felony offender--Qualifying offenses--Offense under former statutory designation which is similar in elements to a qualifying offense--Former version of section 800.04, Florida Statutes (1981) is similar in elements to sections 800.04(4) and 800.04(5), Florida Statutes (2005)--Conflict certified.
ALLSTATE INSURANCE COMPANY v. HOLMES REGIONAL MEDICAL CENTER, INC., 171 So.3d 163, 40 Fla. L. Weekly D1713a (Fla. 5DCA 2015). Supreme Court Case No. SC15-1555 (Holmes Regional Medical Center, Inc. v. Allstate Insurance Company). Order dated June 10, 2016. No oral argument. Torts--Equitable subrogation--Action by tortfeasor and its liability insurer against whom judgment has been entered finding tortfeasor liable in personal injury action, seeking equitable subrogation from medical providers who are allegedly responsible for a substantial portion of the damages in the underlying personal injury action--Trial court erred in dismissing equitable subrogation action on the basis that tortfeasor and tortfeasor's insurer have not paid the entirety of injured party's damages--Right to equitable subrogation arises when payment has been made or judgment has been entered, so long as the judgment represents the victim's entire damages--Question certified to Florida Supreme Court: Is a party that has had judgment entered against it entitled to seek equitable subrogation from a subsequent tortfeasor when the judgment has not been fully satisfied?
AMERICAN HOME ASSURANCE COMPANY, INC. v. SEBO, 141 So.3d 195, 38 Fla. L. Weekly D1982a (Fla. 2DCA 2013). Supreme Court Case No. SC14-897 (Sebo v. American Home Assurance Company, Inc.). Order dated October 7, 2014. Oral argument set by separate order. Insurance--Homeowners--All risk policy--Coverage--Damage caused by multiple perils--In the case of a first-party insurance policy, where damage is caused by multiple perils, some of which are covered and some of which are excluded, the efficient proximate cause doctrine rather than the concurrent causation doctrine is applicable to determine whether coverage is provided--Where damage to insured home was caused by rain and wind, which were covered perils, and by defective construction, which was an excluded peril, issue of coverage should have been determined under efficient proximate cause doctrine, and finder of fact should have determined which peril was the most substantial or responsible factor in the loss.
BANKS v. JONES, 197 So.3d 1152, 41 Fla. L. Weekly D1584a (Fla. 1DCA 2016). Supreme Court Case No. 16-1478 (Banks v. Jones). Order Dated November 1, 2016. No oral argument. Criminal law--Prisoners--Close management status--Prisoners' challenges to close management housing assignments may not properly be asserted by petition for writ of habeas corpus--Because claims challenging close management classification do not assert entitlement to release from incarceration, but only assert a right to remain in prison's general population, such claims do not implicate a constitutionally protected liberty interest--Prisoner's claim that he has been improperly assigned to close management classification can only be considered by petition for writ of mandamus in circuit court in Leon County, asserting that Department of Corrections has not complied with its own close management procedures--Further review of circuit court orders in cases involving challenges to close management assignment shall be by second-tier certiorari review in district court of appeal--Court recedes from prior decisions to the contrary--Conflict certified.
BARTOW HMA, LLC v. EDWARDS, 175 So.3d 820, 40 Fla. L. Weekly D1599a (Fla. 2DCA 2015). Supreme Court Case No. SC15-1893 (Edwards v. Thomas). Order dated October 10, 2016. Oral argument set by separate order. Torts--Medical malpractice--Hospitals--Discovery--Article X, section 25, Florida Constitution (Amendment 7), which preempts statutory discovery protections for the peer review process by providing patients a right of access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident--External peer review reports made for purpose of litigation do not fall within the ambit of Amendment 7 because they were not made or received in the course of business--Because circuit court has determined that external peer review reports are privileged, it was a departure from essential requirements of law to order their production.
BLACK v. STATE, 95 So.3d 884, 37 Fla. L. Weekly D593a (Fla. 2DCA 2012). Supreme Court Case No. SC12-1938 (Black v. State). Order dated December 4, 2014. Criminal law--Second degree murder--Attempted second degree murder--Evidence--Malice--Evidence that defendant, who had told a friend that he wanted to kill himself and that he intended to make big headlines and go out with a bang, drove his vehicle into a group of people and then drove his vehicle directly toward a woman on a sidewalk was sufficient to support finding that defendant acted with malice--Trial court did not err in denying motion for judgment of acquittal--Jury instructions--Jury instruction on lesser included offense of intentional act manslaughter, which stated that it was not necessary for state to prove that defendant had premeditated intent to cause death, only an intent to commit an act which caused death, was not erroneous--Further, an erroneous instruction on manslaughter by act does not constitute fundamental error when jury is also instructed of offense of manslaughter by culpable negligence.
BOLLETTIERI RESORT VILLAS CONDOMINIUM ASSOCIATION, INC. v. THE BANK OF NEW YORK MELLON, 198 So.3d 1140, 41 Fla. L. Weekly D1988b (Fla. 2DCA 2016). Supreme Court Case No. SC16-1680 (Bollettieri Resort Villas Condominium Association, Inc. v. The Bank of New York Mellon). Order dated November 2, 2016. No oral argument. Mortgage foreclosure--Limitation of actions--Where initial foreclosure complaint was voluntarily dismissed without prejudice, second foreclosure complaint was not subject to dismissal on basis that complaint was barred by statute of limitations because it was based on a default that occurred more than five years before the filing of the complaint, as complaint alleged that no subsequent payments on note had been made--Complaint was sufficient to establish that foreclosure could be based on any of missed payments since initial breach--Conflict certified.
BRAGDON v. STATE, 123 So.3d 654, 38 Fla. L. Weekly D2111a (Fla. 4DCA 2013). Supreme Court Case No. SC13-2083 (Bragdon v. State). Order dated July 2, 2014. Oral argument to be set by separate order. Criminal law--Immunity--Stand Your Ground law--Defendant engaged in unlawful activity--Defendant's crime of possession of firearm by convicted felon precludes him from seeking immunity under Stand Your Ground law--Conflict certified on issue of whether defendant engaged in "unlawful activity" is precluded from claiming self-defense immunity from prosecution.
CANTORE v. WEST BOCA MEDICAL CENTER, INC., 174 So.3d 1114, 40 Fla. L. Weekly D2182a (Fla. 4DCA 2015). Supreme Court Case No. SC15-1926 (Cantore v. West Boca Medical Center, Inc.). Order dated October 11, 2016. No oral argument. Torts--Medical malpractice--Evidence--Expert physician testimony--Testimony of co-treating or consulting treating physician was not improper testimony of a subsequent treating physician that adequate care by the defendant physician would not have altered the subsequent care--Trial court did not abuse discretion by allowing witness to answer hypothetical questions about how he would have treated patient under different circumstances--When witness answered hypothetical questions, he was not a subsequent treating physician testifying that adequate care by the defendant would not have altered the subsequent care; rather, he was explaining his medical decision-making process and how different decisions by him would have impacted the patient's status and condition.
CHERISMA v. STATE, 86 So.3d 1195, 37 Fla. L. Weekly D1050a (Fla. 3DCA 2012). Supreme Court Case No. SC12-1068 (Cherisma v. State). Order dated March 7, 2013. No oral argument. Criminal law--Evidence--Bolstering of witnesses--No error in allowing officer to testify that he would have arrested defendant despite inconsistencies between victim's initial and subsequent account of the details where testimony was elicited in rebuttal to defense's suggestion that victim was unreliable, and responses did not amount to vouching for victim's credibility or the truthfulness of his testimony--Appeals--General objection to questioning of officer in response to defense questions regarding objectivity of photo line up used to identify defendant was not specific enough to preserve issue for appeal.
CITY OF FORT PIERCE v. TREASURE COAST MARINA, LC, __ So.3d __, 41 Fla. L. Weekly D1271a (Fla. 4DCA 2016). Supreme Court Case No. SC16-1107 (Treasure Coast Marina, LC v. City of Fort Pierce). Order dated August 25, 2016. Oral argument set by separate order. Taxation--Ad valorem--Exemptions--Municipal or public purpose--Marinas owned and operated by city served "municipal or public purpose" under applicable case law where marinas were open to public use, exclusively owned and operated by city, and part of larger recreational park complex providing recreation for local residents and supporting local economy by attracting non-local residents--Trial court erred by determining that city was not entitled to exemption--Supreme court did not change legal standard for municipal or public purpose exemption in Florida Department of Revenue v. City of Gainesville--Question certified: In light of Florida Department of Revenue v. City of Gainesville, 918 So. 2d 250 (Fla. 2005), does a municipally owned and operated marina still qualify as a traditionally exempt "municipal or public purpose" under Article VII, section 3(a) of the Florida Constitution?
CITY OF JACKSONVILLE v. SMITH, 159 So.3d 888, 40 Fla. L. Weekly D516a (Fla. 1DCA 2015). Supreme Court Case No. SC15-534 (Smith v. City of Jacksonville). Order dated May 22, 2015. Oral argument set by separate order. Real property--Bert J. Harris, Jr., Private Property Rights Protection Act--Action against city alleging that city's construction and operation of a fire station on city property inordinately burdened plaintiffs' adjacent property by making it effectively unmarketable as a luxury home site, entitling plaintiffs to relief under Harris Act--Harris Act is not applicable where plaintiffs' property was not itself subject to any governmental regulatory action--Trial court erred in finding that plaintiffs were entitled to relief under act--Question certified: May a property owner maintain an action pursuant to the Harris Act if that owner has not had a law, regulation, or ordinance directly applied to the owner's property which restricts or limits the use of the property?
CZAJKOWSKI v. STATE, 178 So.3d 498, 40 Fla. L. Weekly D2464b (Fla. 4DCA). Supreme Court Case No. SC15-2313. (Czajkowski v. State). Order dated March 24, 2016. Oral argument to be set by separate order. Criminal law--Unlawful compensation or reward for official behavior--Conspiracy--Trial court did not err in denying motion to dismiss information on ground that statute was unconstitutional as applied to defendant because of vagueness of phrase "not authorized by law"--Although phrase is not defined in statute itself, its meaning can be ascertained by reference to other statutory provisions, case law, and plain and ordinary meaning of its words of common usage.
D'AGASTINO v. CITY OF MIAMI, __ So.3d __, 41 Fla. L. Weekly D689a (Fla. 3DCA 2016). Supreme Court Case No. SC16-645 (D'Agastino v. City of Miami). Order dated June 28, 2016. Oral argument set by separate order. Municipal corporations--Police officers--Municipal ordinance creating a Civilian Investigative Panel to investigate civilian complaints against police officers and to propose recommendations to city manager and police chief regarding allegations of misconduct does not directly conflict with state statute.
DAVIS v. STATE, 95 So.3d 340, 37 Fla. L. Weekly D1784a (Fla. 5DCA 2012). Supreme Court Case Nos. SC12-2212 and SC12-2214, Consolidated (State v. Davis; Davis v. State). Order dated December 19, 2013. Oral argument set by separate order. Criminal law--Conspiracy to traffic cocaine--Sufficiency of evidence--Defendant convicted of conspiracy to traffic in cocaine as a result of his selling cocaine to buyer, and then buyer selling that same cocaine to a third person--Evidence was insufficient to support conviction of conspiracy--Agreement that constitutes conspiracy must be an agreement to commit the same criminal offense, and evidence here failed to demonstrate any agreement or concurrent intent between defendant and buyer to join in the same act of selling, purchasing, delivering, or possessing a particular item of cocaine--Evidence demonstrated that defendant intended to possess and then sell cocaine, and that buyer intended to purchase and then possess cocaine--Neither buyer's purchase of cocaine nor his resale to a third party created any inference that defendant agreed with buyer that buyer would resell it--Fact that defendant gave his phone number to another party to give to buyer does not support conviction because although the other party knew the number was for purpose of connecting buyer and defendant for the purchase of cocaine, there was no evidence the other party knew or agreed to any details of any prospective drug transaction--Defendant's allusions to anonymous third parties in phone conversation with buyer were not sufficient where no evidence showed that such parties existed and that defendant conspired with them--Conflict certified.
DEAN v. STATE, 193 So.3d 1108, 41 Fla. L. Weekly D1167b & 41 Fla. L. Weekly D1520a (Fla. 4DCA 2016). Supreme Court Case No. SC16-1314 (Dean v. State). Order dated August 24, 2016. No oral argument. Criminal law--Second degree murder--Jury instructions--Lesser included offenses--Question certified: Is manslaughter a category one lesser included offense of second-degree felony murder?
DEPARTMENT OF TRANSPORTATION v. CSX TRANSPORTATION, INC., 128 So.3d 209, 38 Fla. L. Weekly D2616a (Fla. 2DCA 2013). Supreme Court Case No. SC14-69 (Florida Department of Transportation v. Schwefringhaus). Order dated April 3, 2014. Oral argument set by separate order. Torts--Indemnity--Department of Transportation--Agreement by which Department of Transportation's predecessor agreed to indemnify railroad for losses at railroad crossing in consideration for license to use railroad's land for crossing is enforceable--Trial court properly found that DOT was obligated to indemnify railroad for amount of settlement paid by railroad to resolve a negligence action arising from an accident at the railroad crossing--Because DOT's liability was based on an express contract, DOT's liability was not limited to $200,000 under waiver of sovereign immunity statute--Questions certified: Is DOT bound by a railroad crossing agreement under which it received a revocable license to use land as right-of-way if the sole consideration for the license was an agreement to indemnify the railroad for losses arising out of DOT's activity on the land? If so, is DOT's liability under the crossing agreement limited by section 768.28(5), Florida Statutes (2002)?
DIAZ v. STATE, 106 So.3d 515, 38 Fla. L. Weekly D320a (Fla. 2DCA 2013). Supreme Court Case No. SC14-2385 (Diaz v. State). Order dated December 10, 2014. Criminal law--Sentencing--Considerations--Trial court erred in considering the alleged untruthfulness of defendant's testimony in its sentencing determination--Remand for resentencing before a different judge.
DOE v. STATE, __ So.3d __, 41 Fla. L. Weekly D2220a (Fla. 2DCA 2016). Supreme Court Case No. SC16-1852 (Doe v. State) (Consolidated with SC16-1854, SC16-1855, SC16-1856, SC16-1857, SC16-1858, SC16-1859, SC16-1860, SC16-1861, SC16-1862, SC16-1863, SC16-1864, SC16-1865, SC16-1866, SC16-1867). Order dated October 27, 2016. Oral argument set for February 7, 2017. Baker Act--Mandamus--Petitioners are not entitled to writ of mandamus directing judicial officers assigned to preside over Baker Act hearings to appear for those hearings at the receiving facilities where the patients are held rather than via videoconference from the courthouse--There is no ministerial, indisputable legal duty clearly established in the law which requires judicial officers presiding over involuntary inpatient placement hearings to be physically present with the patients, witnesses, and attorneys--Question certified: Does a judicial officer have an existing indisputable legal duty to preside over section 394.467 hearings in person?
DOMINIQUE v. STATE, 171 So.3d 204, 40 Fla. L. Weekly D1828a (Fla. 4DCA 2015). Supreme Court Case No. SC15-1613 (State v. Dominique). Order dated November 25, 2015. No oral argument. Criminal law--Second degree murder--Jury instructions--Lesser-included offenses--Manslaughter by act--Trial court erred in giving standard jury instruction which required jury to find killing was intentional--Error was fundamental where erroneous instruction pertained to disputed element of offense, defendant's state of mind, and error was pertinent or material to what jury had to consider to convict the defendant--Error not cured by instructing jury on manslaughter by culpable negligence--Conflict certified.
DOZIER v. STATE, 175 So.3d 322, 40 Fla. L. Weekly D1946g (Fla. 1DCA 2015). Supreme Court Case No. SC15-2092 (Dozier v. State). Order dated May 2, 2016. Oral argument set by separate order. Criminal law--Speedy trial--Interstate Agreement on Detainers Act--Defendant is not entitled to discharge under speedy trial protections of IADA where, at the time of defendant's IADA request, even though a detainer had been filed, no indictment, information, or complaint yet existed that would trigger IADA's application--IADA cannot be triggered solely by the filing of a detainer pursuant to a felony warrant--Further, defendant's requests were not in substantial compliance with the requirements for a request for a final disposition under IADA--Petition for writ of prohibition denied.
EUSTACHE v. STATE, 199 So.3d 484, 41 Fla. L. Weekly D2022a (Fla. 4DCA 2016). Supreme Court Case No. SC16-1712 (Eustache v. State). Order dated February 17, 2017. No oral argument. Criminal law--Post conviction relief--Probation revocation--Youthful offenders--Sentencing--Mandatory minimum--Trial court has discretion, upon revocation of youthful offender supervision for a substantive violation, either to continue with a youthful offender cap sentence or to impose any sentence that might have been originally imposed without regard to the defendant's youthful offender status--If court exercises discretion not to impose youthful offender cap sentence upon revocation, if original offense originally required minimum mandatory sentence, court is required to impose that sentence--Court recedes from contrary language in Blacker v. State--Conflict certified--Question certified: Where a defendant is initially sentenced to probation or community control as a youthful offender, and the trial court later revokes supervision for a substantive violation and imposes a sentence above the youthful offender cap under sections 958.14 and 948.06(2), is the court required to impose a minimum mandatory sentence that would have originally applied to the offense?
EVANS v. STATE, __ So.3d __, 38 Fla. L. Weekly D217f (Fla. 5DCA 2013). Supreme Court Case No. SC13-282 (State v. Evans). Order dated April 18, 2013. Oral argument to be set by separate order. Criminal law--Sexually violent predators--Civil commitment under Jimmy Ryce Act--Jurisdiction--Lawful custody--State did not have jurisdiction to initiate civil commitment proceedings under the involuntary Civil Commitment of Sexually Violent Predators Act against an inmate who is entitled to immediate release based on a corrected award of time served--Question certified.
FEDERATED NATIONAL INSURANCE COMPANY v. JOYCE, 179 So.3d 492, 40 Fla. L. Weekly D2606a (Fla. 5DCA 2015). Supreme Court Case No. SC16-103 (Joyce v. Federated National Insurance Company). Order dated August 12, 2016. No oral argument. Insurance--Attorney's fees--Award of fees to insureds following settlement of coverage dispute with insurer--Trial court abused discretion by awarding a multiplier where case was not a complicated case, and there was no evidence that insureds had any difficulty obtaining counsel.
FINR II, INC. v. HARDEE COUNTY, 164 So.3d 1260, 40 Fla. L. Weekly D1355a (Fla. 2DCA 2015). Supreme Court Case No. SC15-1260 (Hardee County v. FINR II, Inc.). Order dated August 18, 2015. Oral argument set by separate order. Real property--Private property rights--Bert J. Harris, Jr. Act provides a cause of action to an owner of real property that has been inordinately burdened and diminished in value due to governmental action directly taken against an adjacent property--Conflict certified--Trial court erred in dismissing property owner's action under Harris Act against county which granted a special exception to adjacent property to allow phosphate mining activity closer to owner's property than that allowed by setback provision of comprehensive plan.
FRANCE v. FRANCE, 90 So. 3d 860, 37 Fla. L. Weekly D1299c (Fla. 5DCA 2012). Supreme Court Case No. SC12-1370 (France v. France). Order dated November 6, 2012. Oral argument will be set by separate order. Torts--Florida Security of Communications Act--Interception of communications without consent--Jurisdiction--Action arising out of defendant's recording of phone calls with plaintiff without plaintiff's consent while defendant was in North Carolina and plaintiff was in Florida--Trial court erred in granting defendant's motion to dismiss for lack of personal jurisdiction--Tortious act occurred in Florida because the interception occurred where the communication was uttered, not where it was heard--Conflict certified.
FRANKLIN v. STATE, 141 So.3d 210, 39 Fla. L. Weekly D1018c (Fla. 1DCA 2014). Supreme Court Case No. SC14-1442 (Franklin v. State). Order dated November 28, 2016. No oral argument. Criminal law--Post conviction relief--Sentencing--Claim that concurrent sentences totaling 1000 years for non-homicide offenses committed when defendant was juvenile were unconstitutional under Graham v. Florida because they did not afford defendant a meaningful opportunity for release upon demonstration of maturity and rehabilitation--Extreme length of sentence does not in itself establish violation of Graham when sentence is parole eligible and no constitutional deficiency in parole system has been established--Because claim before circuit court did not provide information or arguments necessary to hold sentence unconstitutional, even assuming truth of facts alleged, defendant failed to set forth prima facie case for relief--Further, due to legal insufficiency of motion, trial court was not required to afford defendant an evidentiary hearing or attach records conclusively refuting claim, and trial court was within its discretion to deny defendant's request for counsel.
GERACI v. SUNSTAR EMS, 93 So.3d 384, 37 Fla. L. Weekly D1545b (Fla. 2DCA 2012). Supreme Court Case No. SC12-2073 (Sunstar EMS v. Geraci). Order dated April 23, 2013. Oral argument to be set by separate order. Estates--Claims--Exempt property--Homestead--Condominium that is subject to a long-term leasehold may qualify as homestead to be protected from forced sale to pay creditors of deceased owner--When a lessee's interest in leasehold estate includes right to use and occupy the premises for a long term, and the lessee has made the residence his principal and exclusive residence, such an interest is entitled to Florida's homestead exemption from forced sale--Trial court erred in declining to apply homestead exemption based on its determination that the homestead protection at issue was actually that of descent and devise.
GOODMAN v. FLORIDA DEPARTMENT OF LAW ENFORCEMENT, __ So.3d __, 41 Fla. L. Weekly D1247b; question certified at 41 Fla. L. Weekly D1968a (Fla. 4DCA 2016). Supreme Court Case No. SC16-1752 (Goodman v. Florida Department of Law Enforcement). Order dated October 14, 2016. Oral argument set by separate order. Administrative law--Department of Law Enforcement--Rules--Blood testing--Questions certified: (1) Are current FDLE rules inadequate under State v. Miles for purportedly failing to sufficiently regulate proper blood draw procedures, as well as the homogenization process to "cure" a clotted blood sample? (2) Are the present rules similarly inadequate for failing to specifically regulate the work of analysts in screening blood samples, documenting irregularities, and rejecting unfit samples?
GORDON v. STATE, 139 So.3d 958, 39 Fla. L. Weekly D1203a (Fla. 2DCA 2014). Supreme Court Case No. SC15-1654 (Gordon v. State). Order dated December 7, 2015. Criminal law--Trafficking in and conspiracy to traffic in oxycodone--Sentencing--Excessive fines--Neither $100,000 fine imposed for trafficking conviction nor $500,000 fine imposed for conspiracy conviction was excessive within proscriptions of state or federal constitutions--Appeals--Although defendant did not preserve any error as to fines either by objecting at sentencing or by rule 3.800(b) motion, because defendant challenges a sentencing statute as facially unconstitutional, and no appellate court has already addressed the issue, the issue is reviewable.
GOVERNMENT EMPLOYEES INSURANCE COMPANY v. MACEDO, 190 So.3d 1155, 41 Fla. L. Weekly D1114b (Fla. 1DCA 2016). Supreme Court Case No. SC16-935 (Government Employees Insurance Company v. Macedo). Order dated October 19, 2016. No oral argument. Insurance--Automobile liability--Attorney's fees and costs--Trial court properly awarded attorney's fees and costs against insurer jointly and severally with insured pursuant to plaintiff's proposal for settlement--Policy provision stating that insurer would cover "other expenses incurred at our request" included costs associated with choosing to litigate a case instead of settling it--Conflict certified.
GRESHAM v. STATE, 181 So.3d 1207, 40 Fla. L. Weekly D2706b (Fla. 1DCA 2015). Supreme Court Case No. SC16-359 (Gresham v. State). Order dated May 24, 2016. No oral argument. Criminal law--Post conviction DNA testing--Trial court did not err in denying motion for post conviction DNA testing without a response from state where motion was facially insufficient--Motion was facially insufficient where it did not allege that identification was a genuinely disputed issue at trial or explain how DNA testing would exonerate defendant.
GRETNA RACING, LLC v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF PARI-MUTUEL WAGERING, 40 Fla. L. Weekly D2242a (Fla. 1DCA 2015). Supreme Court Case No. SC15-1929 (Gretna Racing, LLC v. Florida Department of Business and Professional Regulation). Order dated December 1, 2015. Oral argument set by separate order. Administrative law--Pari-mutuel wagering--Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering properly denied license for slot machine gaming at a horsetrack facility in Gadsden County after approval by a countywide vote--There is no legislative authorization for counties other than Miami-Dade and Broward to hold slot machine referenda in their jurisdictions without passage of additional authority--Further, the Gadsden County vote was not an authorized "referendum"--Question certified: Whether the Legislature intended that the third clause of section 551.102(4), Florida Statutes, enacted in 2009, authorize expansion of slot machines beyond Miami-Dade and Broward Counties via local referendum in all other eligible Florida counties without additional statutory or constitutional authorization after the effective date of the act?
HALL v. LOPEZ, __ So.3d __, 41 Fla. L. Weekly D1763a (Fla. 1DCA 2016). Supreme Court Case No. SC16-1921 (Lopez v. Hall). Order dated January 23, 2017. Oral argument to be set by separate order. Attorney's fees--Claim or defense not supported by material facts or applicable law--Trial court erred in ruling that attorney's fees pursuant to section 57.105, Florida Statutes, cannot be awarded in an action for injunction for protection against violence--Conflict certified.
HILES v. AMERICARE HOME THERAPY, INC., 183 So.3d 449, 41 Fla. L. Weekly D67a (Fla. 5DCA 2016). Supreme Court Case No. SC16-400 (Americare Home Therapy, Inc. v. Hiles). Order dated July 8, 2016. Oral argument set by separate order. Injunctions--Enforcement of restrictive covenants in employment agreement--Referral sources do not qualify as legitimate business interests for purpose of enforcing restrictive covenants--Conflict certified--Evidence did not establish that temporary injunction was reasonably necessary to protect former employer's "valuable business information" based solely on former employee's possession of emails and attached documents which defendant had already seen during her employment and had no value other than reference to referral sources--Moreover, there was no evidence that defendant used information to compete with plaintiff--Portion of injunction stating that defendant was violating restrictive covenants by soliciting business from plaintiff's partners/referral sources must be stricken, and other provisions must be narrowed to remove references to referral sources--Portion of injunction prohibiting defendant from competing with plaintiff must be stricken entirely as not reasonably necessary to support legitimate business interest--Catch-all provision enjoining defendant from "otherwise violating any of the restrictive covenants contained in the Agreement" must be stricken for failure to comply with requirements of rule 1.610(c) requiring that acts restrained be described in reasonable detail without reference to other documents.
HOOKER v. HOOKER, 174 So.3d 507, 40 Fla. L. Weekly D1986a (Fla. 4DCA 2015). Supreme Court Case Nos. SC15-1881 and SC16-589 (Hooker v. Hooker). Order dated March 18, 2016. Oral argument set by separate order. Dissolution of marriage--Prenuptial agreement--Equitable distribution--Marital/non-marital assets--Gifts--Where husband purchased two properties with funds that could be traced to his pre-marital assets, which were kept separate by the parties' prenuptial agreement, and prenuptial agreement provided that any appreciation of those assets would remain separate, the only way wife could claim interest in either property was by interspousal gift--With respect to property that constituted parties' primary marital residence through vast majority of marriage and was site of business in which wife was extremely and directly involved, none of the facts found by trial court evidenced a clear and unmistakable intention on part of husband to make a gift, as required to establish donative intent--Trial court erred in finding that wife had interest in this property by virtue of interspousal gift--With respect to second home, facts evidenced sufficient donative intent to uphold trial court's determination that wife had interest in this property--Husband bought this property in a location where wife desired to live, told wife home was for both of them, and sent wife a card for their tenth wedding anniversary with picture of the property, and wife purchased some furnishings and incidentals for the home from her separate funds--Evidence was sufficient to establish two remaining elements of gift, delivery or possession and surrender of dominion and control--Trial court did not abuse its discretion in finding that delivery was made at time wife obtained keys to property and began to possess property as her summer home according to intention of husband--Evidence was uncontroverted that wife had unfettered access to home and made decisions on care and maintenance of property with ability to incur expenses on behalf of husband--Disproportionate distribution--Trial court made appropriate findings regarding statutory factors to support unequal award to wife of only 25% interest in this property--Equitable distribution schedule to be reconsidered on remand after awarding 100% of first property to husband as his own non-marital property.
HUNTER v. SHAW, 182 So.3d 784, 41 Fla. L. Weekly D43d (Fla. 1DCA 2016). Supreme Court Case No. SC16-118 (Shaw v. Hunter). Order dated May 25, 2016. Oral argument set by separate order. Torts--Sheriffs--Venue--Home venue privilege--Action against sheriff is his official capacity, alleging sheriff's vicarious liability for negligence of deputy sheriff in rear-end collision with plaintiffs' vehicle--Sheriff and deputy sheriff were not joint tortfeasors, and joint tortfeasor exception to home venue privilege was not applicable--Florida law does not recognize a co-defendant exception.
HUNTER v. STATE, 174 So.3d 1011, 40 Fla. L. Weekly D1109a (Fla. 1DCA 2015). Supreme Court Case No. SC15-1958 (Hunter v. State). Order dated August 12, 2016. No oral argument. Criminal law--Robbery with deadly weapon--Aggravated assault on person 65 or older--Competency to stand trial--Where trial court received report from state hospital indicating that defendant, who was previously adjudicated incompetent, had regained competency to proceed with trial, trial court scheduled and convened a competency hearing and on the record considered reports from two forensic mental health specialists deeming defendant competent to stand trial, but court made no competency determination at time of hearing because defense counsel sought psychiatric reevaluation of defendant primarily to address whether defendant was insane at time of charged offenses, appellate court construes trial court's reply of "okay" to defense counsel's statement at subsequent status conference that defendant was competent to stand trial but could still be insane as an oral determination of defendant's competency to proceed with trial--Case remanded for entry of written adjudication of competency nunc pro tunc--Evidence--Hearsay--911 call--Recorded statements during 911 call in which caller conveyed information from an unidentified speaker were inadmissible hearsay within hearsay--Error in admitting portion of recording containing these statements was harmless where information contained in statements was merely cumulative to trial testimony and information conveyed was not crucial to identifying defendant as perpetrator--Sentencing--Neither habitual violent felony offender sentence nor prison releasee reoffender sentence is based on factors which state must prove to jury under U.S. Supreme Court precedent.
KNIGHTON v. STATE, 193 So.3d 115, 41 Fla. L. Weekly D1244b (Fla. 4DCA 2016). Supreme Court Case No. SC16-1426 (State v. Knighton). Order dated December 30, 2016. No oral argument. Criminal law--Lewd or lascivious battery--Jury instructions--Lesser included offenses--Unnatural and lascivious act--Trial court erred by failing to give requested lesser-included offense instruction on unnatural and lascivious act--Sister district's reasoning that a defendant charged with lewd or lascivious battery is entitled to an instruction on the lesser-included offense of unnatural and lascivious act is adopted--Sexual intercourse between an adult and child constitutes an unnatural and lascivious act--The offense of unnatural and lascivious act is a permissible lesser-included offense to lewd or lascivious battery--Sentencing--Scoresheet--Although moot in light of the holding on jury instructions, there was no error in including prior juvenile dispositions on sentencing scoresheet.
KOPEL v. KOPEL, 117 So.3d 1147, 38 Fla. L. Weekly D666a (Fla. 3DCA 2013). Supreme Court Case No. SC13-992 (Kopel v. Kopel). Order dated June 11, 2014. No oral argument. Contracts--Limitation of actions--Unjust enrichment--Plaintiff's breach of contract claim was barred by statute of limitations where claim was first raised in amended complaint after limitations period had run, and amended complaint did not relate back to initial complaint because it raised a claim that was new, different, and distinct from initial claim--Error to enter judgment for plaintiff on unjust enrichment claim where plaintiff's investment of funds into a jointly held corporation did not benefit either individual defendant directly, but only indirectly benefitted one individual defendant through a corporation which he happened to partially own.
LEE v. STATE, 117 So.3d 848, 38 Fla. L. Weekly D1521c (Fla. 5DCA 2013). Supreme Court Case No. SC14-1073 (Lee v. State). Order dated October 20, 2014. Criminal law--Robbery with firearm--Aggravated battery with firearm--New trial--Verdict against weight of evidence--Defendant entitled to new hearing on motion for new trial founded on claim that principal testimony against defendant at trial was fatally inconsistent where it is unclear whether trial judge applied correct standard in denying the motion.
LEE v. STATE, 130 So.3d 707, 38 Fla. L. Weekly D2475a (Fla. 2DCA 2013). Supreme Court Case No. SC14-416 (Lee v. State). Order dated November 17, 2016. No oral argument. Criminal law--Juveniles--Attempted first degree murder--Sentencing--Cruel and unusual punishment--In resentencing defendant pursuant to United States Supreme Court's decision in Graham v. Florida, trial court properly imposed 40-year term of imprisonment with 25-year minimum mandatory term--Presentence investigation--No merit to defendant's claim he was entitled to updated PSI at sentencing hearing where, with counsel having updated the record with information documenting defendant's prison experience and given the defendant's own testimony, it is unlikely such an update would contain anything not already in the record--Verdict--Jury's verdict authorizes 25-year minimum mandatory term even though the verdict form did not require the jury to make express findings that defendant "discharged" a firearm or that he caused "great bodily harm"--While generally it is error to enhance a sentence under the statute without a clear jury finding regarding the factual basis for enhancement, here the jury's finding that defendant committed attempted first-degree murder "with a firearm as charged in the information," where the information charged that he did "inflict upon [the victim] mortal wounds by shooting with a firearm," it is beyond a reasonable doubt that the jury found defendant met the statutory requirements--Failure to obtain a jury finding can be determined to be harmless beyond a reasonable doubt in the case of an Alleyne error.
LOMAX v. STATE, 148 So.3d 119, 39 Fla. L. Weekly D1942a (Fla. 1DCA 2014). Supreme Court Case No. SC16-2033 (Lomax v. State). Order dated November 10, 2016. Criminal law--Search and seizure--Traffic stop--Officer's observation of defendant's vehicle swerving over solid double yellow lines on two-lane highway provided probable cause for traffic stop--Although defendant was not attempting to pass another vehicle, actions of swerving across double yellow lines constituted a violation of traffic control device of double yellow lines.
M.A.B. v. STATE, 957 So.2d 1219 (Fla. 2DCA 2007). Supreme Court Case No. SC07-1381 (M.A.B. v. State). Order dated August 21, 2007. Oral argument set by separate order. Criminal law -- Juveniles -- Evidence -- Statements of juvenile -- Claim that postarrest statements should have been suppressed because Miranda warnings failed to inform juvenile of right to have attorney present during questioning -- Adjudications affirmed -- Question certified: Does the failure to provide express advice of the right to the presence of counsel during questioning vitiate Miranda warnings which advise of both (a) the right to talk to a lawyer “before questioning” and (b) the “right to use” the right to consult a lawyer “at any time” during questioning?
MCCOY v. STATE, 194 So.3d 1058, 41 Fla. L. Weekly D1450b (Fla. 1DCA 2016). Supreme Court Case No. SC16-1316 (McCoy v. State). Order dated August 23, 2016. No oral argument. Criminal law--Second degree murder--Jury instructions--Lesser included offenses--Listing of second degree felony of aggravated battery after third degree felony of attempted manslaughter as lesser included offenses in jury instructions and on verdict form did not constitute fundamental error--Error in listing of lesser included offenses on verdict form and in jury instructions is not fundamental error in first district--Conflict certified.
MEDERI CARETENDERS VISITING SERVICES OF SOUTHEAST FLORIDA, LLC v. WHITE, 179 So.3d 564, 40 Fla. L. Weekly D2664a (Fla. 4DCA 2015). Supreme Court Case No. SC16-28 (White v. Mederi Caretenders Visiting Services of Southeast Florida, LLC). Order dated July 8, 2016. Oral argument set by separate order. Contracts--Employment--Noncompetition covenant--Home health care provider's referral sources were protectable legitimate interests--Employment contract containing non-compete and non-solicitation provisions was enforceable, and trial court erred in entering final summary judgment denying enforcement and dismissing tortious interference claim--Conflict certified.
MENDEZ v. HAMPTON COURT NURSING CENTER, LLC., 140 So.3d 671, 39 Fla. L. Weekly D1191a (Fla. 3DCA 2014). Supreme Court Case No. SC14-1349 (Mendez v. Hampton Court Nursing Center, LLC.). Order dated December 16, 2014. Oral argument set by separate order. Torts--Nursing homes--Arbitration--Enforceability of arbitration clause--Non-signatory who is third-party beneficiary--Nursing home resident was bound by arbitration provision in nursing home admission agreement that was signed by his son after doctor at nursing home determined that resident lacked capacity to give informed consent or make medical decisions because resident was the intended third-party beneficiary of agreement.
MICHEL v. STATE, 204 So.3d 101, 41 Fla. L. Weekly D2525a (Fla. 4DCA 2016). Supreme Court Case No. SC16-2187 (State v. Michel). Order dated January 18, 2017. No oral argument. Criminal law--Sentencing--Homicide committed by juvenile--Supreme court decision in Atwell v. State interpreted as holding that Florida's existing parole system does not provide individualized sentencing required by U.S. Supreme Court's decision in Miller v. Alabama--Conflict certified--Resentencing required pursuant to provisions enacted in Chapter 2014-220, Laws of Florida.
MORRIS v. MUNIZ, 189 So.3d 348, 41 Fla. L. Weekly D1010b (Fla. 1DCA 2016). Supreme Court Case No. SC16-931 (Morris v. Muniz). Order dated January 19, 2017. No oral argument. Wrongful death--Medical malpractice--Presuit requirements--Trial court did not err in dismissing action on basis that plaintiff failed to provide access to information during presuit investigation regarding plaintiff's presuit expert's qualifications.
MORRIS v. STATE, 206 So.3d 154, 41 Fla. L. Weekly D2735a (Fla. 2DCA 2016). Supreme Court Case No. SC16-2271 (Morris v. State). Order dated February 24, 2017. No oral argument. Criminal law--Sentencing--Correction--Costs order to be corrected to eliminate additional prosecution costs and supervision costs--Defendant is not entitled to be resentenced under the framework established by chapter 2014-220, Laws of Florida.
MORRISON v. STATE, 161 So.3d 564, 39 Fla. L. Weekly D2255b (Fla. 2DCA 2014). Supreme Court Case No. SC15-1526 (Morrison v. State). Order dated August 20, 2015. Criminal law--Evidence--Hearsay--Exceptions--Excited utterance--Trial court erred by failing to conduct hearing or make required predicate findings before admitting 911 recording of domestic violence victim as excited utterance, but because defendant was convicted of battery on a law enforcement officer and obstructing or opposing an officer with violence, and not of the domestic violence charge, the improperly admitted evidence was not relevant to the charges for which the defendant was convicted, and the error was harmless.
OCHOA v. KOPPEL, 197 So.3d 77, 41 Fla. L. Weekly D1196b (Fla. 2DCA 2016). Supreme Court Case No. SC16-1474 (Koppel v. Ochoa). Order dated November 9, 2016. No oral argument. Attorney's fees--Proposal for settlement--Trial court erred in finding that plaintiff timely accepted proposal for settlement where plaintiff did not accept proposal during 30-day period provided for in rule--Tolling--Filing of rule 1.090 motion to enlarge time to accept proposal for settlement under rule 1.442 does not toll 30-day acceptance period between date of proposal and when it is deemed rejected--Conflict certified.
OCHOA v. STATE, 120 So.3d 70, 38 Fla. L. Weekly D1672a (Fla. 2DCA 2013). Supreme Court Case No. SC13-1830 (Ochoa v. State). Order dated December 8, 2014. Criminal law--Double jeopardy--Separate convictions and sentences for both grand theft and dealing in stolen property were improper where offenses arose from single course of conduct--Possession of drugs--Challenge to facial constitutionality of applicable sections of Florida Drug Abuse Prevention and Control Act is without merit.
O.I.C.L. v. DEPARTMENT OF CHILDREN AND FAMILIES, 169 So.3d 1244, 40 Fla. L. Weekly D1690a (Fla. 4DCA 2015). Supreme Court Case No. SC15-1570 (O.I.C.L. v. Department of Children and Families). Order dated October 30, 2015. Oral argument set for February 2, 2016. Dependent children--Abuse, abandonment, or neglect--Private petition for adjudication of dependency by undocumented immigrant shortly before his eighteenth birthday alleging abandonment and neglect by parents in foreign country, which adjudication would assist child in securing Special Immigration Juvenile Status visa that would enable him to apply for lawful permanent residency and secure a path to possible citizenship--Trial court did not err in denying petition based on finding that child did not qualify as dependent and was admittedly being well-cared-for by uncle who was ready, willing, and able relative and against whom no allegations of abandonment, abuse, or neglect were made--Discussion of factors trial court should consider when evaluating private dependency petitions filed on behalf of alien child--Although determination of child's status as dependent should be made independent of motivations for seeking that status, courts are cautioned to consider these sorts of petitions carefully.
OSTERHOUDT v. STATE, 182 So.3d 16, 40 Fla. L. Weekly D2363c (Fla. 5DCA 2015). Supreme Court Case No. SC16-303 (Osterhoudt v. State). Order dated July 8, 2016. No oral argument. Criminal law--Sentencing--Correction--Appeals--Defendant waived claims of error regarding discretionary fees, costs, and fines when he raised only procedural, and not substantive, claims in his rule 3.800 motion--Sentencing scoresheet to be corrected to reflect that defendant was found guilty by a jury.
PATEL v. KUMAR, 196 So.3d 468, 41 Fla. L. Weekly D1541a (Fla. 2DCA 2016). Supreme Court Case No. SC16-1457 (Kumar v. Patel). Order dated October 14, 2016. No oral argument. Torts--Battery--Negligence--Prohibition--Immunity from suit--Stand Your Ground law--Someone who has successfully demonstrated that he has Stand Your Ground immunity in a criminal proceeding is not required to prove it again in a subsequent civil suit--Immunity conferred by section 776.032 encompasses all criminal and civil actions based on that conduct--Writ of prohibition granted to prevent circuit court from proceeding in civil action against defendant--Conflict certified.
PFEFFER v. LABOR READY SOUTHEAST, INC., __ So.3d __, 39 Fla. L. Weekly D1336b (Fla. 1DCA 2014). Supreme Court Case No. SC14-1325 (Pfeffer v. Labor Ready Southeast, Inc.). Order dated November 7, 2014. No oral argument. Workers' compensation--Attorney's fees--Statutory formula--Constitutionality.
PREPARED INSURANCE COMPANY v. GAL, 209 So.3d 14, 41 Fla. L. Weekly D2322a (Fla. 4DCA 2016). Supreme Court Case No. SC16-2190 (Gal v. Prepared Insurance Company). Order dated April 26, 2017. No oral argument. Insurance--Homeowners--Property damage--Replacement cost policy--Trial court erred in finding as matter of law that replacement cost policy required insurer to replace damaged kitchen cabinets as matter of law--Under both governing statute and insurance policy at issue, insurer may limit its liability to reasonable and necessary cost to repair damaged, destroyed, or stolen covered property--Trial court erred in ruling that payment for general contractor's overhead and profit was required as matter of law where there remained disputed issues of fact as to whether a general contractor would be necessary to repair damage--Trial court abused its discretion when it struck all insurer's witnesses because they were not general contractors where there were disputed issues of fact as to whether damaged kitchen cabinets could be repaired and whether contractor was reasonably necessary--Trial court abused its discretion by prohibiting inquiry into a second leak that occurred after initial water damage to kitchen cabinets, notwithstanding claim by insured's expert that the second leak did not impact his opinion regarding amount of loss--Remand for new trial.
RAMROOP v. STATE, 174 So.3d 584, 40 Fla. L. Weekly D2065a (Fla. 5DCA 2015). Supreme Court Case No. SC15-1816 (Ramroop v. State). Order dated April 8, 2016. Oral argument set by separate order. Criminal law--First degree murder--Evidence--Trial court erred in admitting into evidence an inflammatory photograph of victim's body in intersection where crash occurred where defendant and state mutually stipulated to identity of deceased and fact that victim had died from injuries sustained when he was ejected from his vehicle after vehicle was struck by defendant's car--Error was harmless under circumstances--Argument--Comments by prosecutor disparaging defense counsel and theory of defense, although improper, did not rise to level of fundamental error and were not preserved for appellate review by objection--Attempted second-degree murder of law enforcement officer engaged in lawful performance of duty--Sentencing--Knowledge of victim's status as law enforcement officer is prerequisite to enhanced penalty pursuant to section 782.065--Because jury instruction pertaining to jury's special finding that victim was law enforcement officer engaged in performance of duties at time of offense failed to also require the jury to find that defendant had knowledge of victim's status, jury's special finding must be vacated--Section 782.065 is reclassification statute, rather than a statute creating a substantive offense--Under U.S. Supreme Court precedent, any fact that elevates defendant's maximum possible sentence, other than prior conviction, must be found beyond reasonable doubt by jury, rather than by judge--Appropriate remedy is resentencing on attempted second-degree murder conviction without reclassification--Extensive discussion of section 782.065.
RICHARDS v. STATE, 128 So.3d 959, 39 Fla. L. Weekly D46a (Fla. 2DCA 2014). Supreme Court Case No. SC14-184 (Richards v. State). Order dated May 26, 2016. No oral argument. Criminal law--Attempted second degree murder--Jury instructions--Giving of flawed standard jury instruction on attempted manslaughter as lesser included offense of attempted second degree murder did not constitute fundamental error where next lesser included offense on which jury was instructed was aggravated battery, so that offense for which defendant was convicted was two steps removed from attempted manslaughter--Error was not fundamental for additional reason that defendant's sole defense was self-defense, and he never claimed that he did not intend to kill victim--Even if error had been fundamental, error was waived because defendant affirmatively requested the jury instruction.
RICHARDSON v. ARAMARK/SEDGWICK CMS, 134 So.3d 1133, 39 Fla. L. Weekly D388a (Fla. 1DCA 2014). Supreme Court Case No. SC14-738 (Richardson v. Aramark/Sedgwick CMS). Order dated November 7, 2014. No oral argument. Workers' compensation--Attorney's fees--Statutory fee schedule--Constitutionality.
R.J. REYNOLDS TOBACCO COMPANY v. MAROTTA, __ So.3d __, 41 Fla. L. Weekly D100b (Fla. 4DCA 2016). Supreme Court Case No. SC16-218 (R.J. Reynolds Tobacco Company v. Marotta). Order dated March 8, 2016. Oral argument set by separate order. Wrongful death--Product liability--Tobacco--Engle progeny case--Federal preemption--Federal law does not implicitly preempt state law tort claims of strict liability and negligence by Engle progeny plaintiffs based on sale of cigarettes--Question certified--Engle progeny cases do not support conclusion that strict product liability claims amount to a ban on the sale of cigarettes--Further, federal tobacco laws expressly preserve a state's ability to regulate tobacco in ways other than manufacturing and labeling while declining to "modify or otherwise affect any action or the liability of any person under the product liability law of any State."
R.J. REYNOLDS TOBACCO COMPANY v. SCHOEFF, 178 So.3d 487, 40 Fla. L. Weekly D2477a (Fla. 4DCA 2015). Supreme Court Case No. SC15-2233 (Schoeff v. R.J. Reynolds Tobacco Company). Order dated May 26, 2016. Oral argument set by separate order. Wrongful death--Product liability--Tobacco--Engle progeny case--Action against tobacco company alleging causes of action for strict liability, fraudulent concealment, conspiracy, negligence, and gross negligence arising out of death from lung cancer caused by decedent's addiction to cigarettes--Damages--Trial court erred in denying defendant's motion for remittitur of $30 million punitive damages award--Award was excessive in light of $10.5 million compensatory damages award--Even if not unconstitutionally excessive, remittitur should have been granted where award exceeded amount sought by counsel for plaintiff and trial court found that there was "no logical or sound reason" for jury to exceed the amount sought by plaintiff's counsel--Remand with directions to grant motion for remittitur and, if defendant does not agree with remitted amount, to hold new trial on punitive damages--Compensatory damages--Reduction--Comparative negligence--Trial court did not err in reducing compensatory damages award under comparative fault statute despite plaintiff's argument that comparative fault reduction was barred because jury found defendant had committed intentional tort of fraudulent concealment--Waiver--Trial court did not err in finding that plaintiff waived right to assert intentional tort exception to comparative fault where, although complaint specifically stated that plaintiff was seeking apportionment of fault for only negligence claims and not intentional tort claims, plaintiff's counsel represented to jury that plaintiff accepted that decedent was partially at fault for smoking-related illness and death and jury was likely misled that its award would be reduced by its determination of comparative fault--With respect to trial court's alternative finding that intentional tort exception did not apply to plaintiff's case because it was a product liability case at its core based on conduct grounded in negligence, appellate court agrees with this finding--Appeals--De novo standard of review applies to trial court's determination of whether certain conduct qualifies as negligence.
SELLS v. CSX TRANSPORTATION, INC., 170 So.3d 27, 40 Fla. L. Weekly D1044b (Fla. 1DCA 2015). Supreme Court Case No. SC15-1639 (Sells v. CSX Transportation, Inc.). Order dated February 19, 2016. Oral argument set by separate order. Wrongful death--Railroads--Action against railroad under Federal Employers Liability Act by personal representative of conductor on train who suffered cardiac arrest while train was in a rural area--Trial court did not err in setting aside jury verdict in favor of plaintiff and entering directed verdict in favor of defendant railroad--Defendant did not have duty to make automated external defibrillators available or to train its employees in CPR in anticipation of decedent's cardiac arrest--There was no showing that defendant's failure to procure prompt medical assistance contributed to decedent's death--Defendant did not have duty to require that its employees administer medical care in the form of life-saving techniques that require training or certification.
SHANDS TEACHING HOSPITAL AND CLINICS INC. v. ESTATE OF LAWSON, 175 So.3d 327, 40 Fla. L. Weekly D2000b (Fla. 1DCA 2015). Supreme Court Case No. SC15-1827 (Estate of Lawson v. Shands Teaching Hospital and Clinics Inc.). Order dated June 17, 2016. No oral argument. Wrongful death--Hospitals--Medical malpractice--Presuit requirements--Applicability--Action alleging ordinary negligence against hospital arising out of death of psychiatric patient who apparently took employee's unattended keys and badge, escaped hospital, made her way onto nearby interstate highway and into the path of a truck, which struck and killed her--Because claims arose from services and care hospital was giving to patient who was confined within hospital's locked unit, which was the service that decedent's condition allegedly required, action was one for medical negligence and was subject to presuit requirements of chapter 766--Trial court departed from essential requirements of law by denying defendant's motion to dismiss--Allowing noncomplying medical negligence litigation to proceed frustrates purposes of Medical Malpractice Reform Act and imposes material and irreparable harm to medical defendants.
SMITH v. SMITH, __ So.3d __, 41 Fla. L. Weekly D542b & 41 Fla. L. Weekly D1514a (Fla. 4DCA 2016). Supreme Court Case No. SC16-1312 (Smith v. Smith). Order dated August 25, 2016. Oral argument set by separate order. Marriage--Annulment--Guardianship--Incapacitated persons--Question certified: Where the fundamental right to marry has not been removed from a ward under section 744.3215(2)(a), Florida Statutes, does the statute require the ward to obtain approval from the court prior to exercising the right to marry, without which approval the marriage is absolutely void, or does such failure render the marriage voidable, as court approval could be conferred after the marriage?
SPENCER v. STATE, 196 So.3d 400, 41 Fla. L. Weekly D700c (Fla. 2DCA 2016). Supreme Court Case No. SC16-1599 (Spencer v. State). Order dated October 10, 2016. No oral argument. Criminal law--Jurors--Peremptory challenge--Racial discrimination--Race-neutral reason--Genuineness--Appeals--Defendant's claim that race-neutral reason for strike of juror was not genuine was not preserved for appeal where defendant did not expressly claim that reason was a pretext--Question certified: During a Melbourne hearing, when a trial court finds that the proponent's reason for a peremptory challenge is facially neutral, is it the burden of the opponent (1) to claim the reason is a pretext, (2) to place into the record the circumstances supporting its position, and (3) to object if the trial court's ruling does not contain adequate findings on the issue of genuineness?
ST. PAUL FIRE AND MARINE INSURANCE COMPANY v. LLORENTE, 156 So.3d 511, 40 Fla. L. Weekly D67a (Fla. 3DCA 2015). Supreme Court Case No. SC15-508 (Llorente v. St. Paul Fire and Marine Insurance Company). Order dated August 18, 2015. Oral argument set by separate order. Insurance--Professional liability--Exclusions--Policy provision which excluded "claims arising out of the inability or failure to pay, collect, administer or safeguard funds held or to be held for others," unambiguously excluded coverage for insured's negligent disbursement of funds being held in her trust account while acting as escrow agent in real estate transaction.
STAHL v. HIALEAH HOSPITAL, 160 So.3d 519, 40 Fla. L. Weekly D718a (Fla. 1DCA 2015). Supreme Court Case No. SC15-725 (Stahl v. Hialeah Hospital). Order dated October 13, 2015. Oral argument set by separate order. Workers' compensation--Medical benefits--No merit to claimant's assertion that 1994 addition of $10 copay for medical visits after claimant attains maximum medical improvement and 2003 elimination of permanent partial disability benefits make Workers' Compensation Law an inadequate exclusive replacement remedy for a tort action--Copay furthers legitimate stated purpose of ensuring reasonable medical costs after injured worker has reached MMI, and PPD benefits were supplanted by impairment income benefits.
STATE v. CARPENTER, 158 So.3d 693, 40 Fla. L. Weekly D348b (Fla. 1DCA 2015). Supreme Court Case No. SC15-1830 (Carpenter v. State). Order dated November 19, 2015. Criminal law--Traveling to meet minor--Solicitation of minor--Transmission of harmful material to minor--Search and seizure--Cell phone--Where at time of search, binding appellate precedent expressly permitted warrantless search of cell phone incident to arrest, and search of defendant's cell phone in instant case was conducted in objectively reasonable reliance on this binding precedent, search fell under good-faith exception to exclusionary rule--Trial court erred in granting motion to suppress evidence obtained from warrantless search of cell phone based on subsequent supreme court ruling that warrant was required before searching data and contents of cell phone.
STATE v. D.A., 939 So.2d 149 (Fla. 5DCA 2006). Supreme Court Case No. SC06-2100 (State v. D.A.). Order dated February 12, 2008. No oral argument. Criminal law -- Juveniles -- Lewd and lascivious molestation -- Speedy trial -- Amendment of charging document during speedy trial recapture period -- Trial judge correctly applied binding precedent when it dismissed petition pursuant to juvenile speedy trial rule because state amended petition during recapture period to change erroneous citation to statute which applies to a defendant 18 years of age or older to citation to statute which applies to a defendant under age 18 -- Court is compelled by supreme court's decision in Glover v. State to conclude that age of defendant is element of crime of lewd or lascivious molestation -- Trial court correctly concluded that amended delinquency petition charged a new crime -- Conflict certified -- Questions certified: In light of the ruling in Glover v. State, 863 So. 2d 236 (Fla. 2003), is the age of the offender an element of the offense of lewd or lascivious offenses under section 800.04, Florida Statutes? -- If so, does Williams v. State, 791 So. 2d 1088 (Fla. 2001), require dismissal of an amended delinquency petition, filed after expiration of the speedy trial period, which changed the age of the offender?
STATE v. PERRY, __ So.3d __, 41 Fla. L. Weekly D714c (Fla. 5DCA 2016). Supreme Court Case No. SC16-547 (Perry v. State). Order dated April 6, 2016. Oral argument set for June 7, 2016. Criminal law--First degree murder--U.S. Supreme Court decision in Hurst v. Florida, which held that certain aspects of Florida's capital sentencing scheme are unconstitutional, struck down Florida's procedure for imposing death penalty, not the death penalty itself--Trial courts erred in striking state's notices of intent to seek death penalty in two different cases on ground that Florida no longer had death penalty statute or statutory authority under which state could seek death penalty--Ex post facto laws--New capital sentencing legislation enacted in response to Hurst applies to pending prosecutions--Legislative acts effecting changes in criminal procedure, including procedural changes that disadvantage a defendant, generally do not violate ex post facto clause, and the new sentencing statute altered process used to determine whether death penalty will be imposed, but made no change to punishment attached to first-degree murder--Questions certified: 1) Did Hurst v. Florida declare Florida's death penalty unconstitutional? 2) If not, does chapter 2016-13, Laws of Florida, apply to pending prosecutions for capital offenses that occurred prior to its effective date?
STATE v. YEE, 177 So.3d 72, 40 Fla. L. Weekly D2332a (Fla. 3DCA 2015). Supreme Court Case No. SC15-1925 (Yee v. State). Order dated March 16, 2016. Oral argument set by separate order. Criminal law--Search and seizure--Residence--Warrantless search--Exigent circumstances--Trial court improperly granted defendant's motion to suppress physical evidence found in home he was renting where, given broken window that neighbors told officer had not been broken the night before and nonresponse to officer's call to anyone who might be inside, the possibility of an ongoing or recent burglary created an exigency making the warrantless entry into the home reasonable.
STEVENS v. STATE, 195 So.3d 403, 41 Fla. L. Weekly D1482a (Fla. 2DCA 2016). Supreme Court Case No. SC16-1357 (Stevens v. State). Order Dated November 14, 2016. Oral argument to be scheduled at a later date. Criminal law--First-degree arson of dwelling--Jury instructions--Lesser included offenses--Instruction on second-degree arson of structure as a permissive lesser-included offense of first-degree arson of a dwelling is not required where, as in instant case, undisputed trial evidence demonstrates that structure that was subject of the arson charge was used exclusively as a dwelling, thereby excluding it from consideration as a second-degree arson offense under plain language of arson statute--Conflict certified
VARGAS v. GUTIERREZ, 176 So.3d 315, 40 Fla. L. Weekly D1971a (Fla. 3DCA 2015). Supreme Court Case No. SC15-1924 (Gutierrez v. Vargas). Order dated October 10, 2016. No oral argument. Torts--Medical malpractice--Negligent failure to timely diagnose child's kidney disease, which ultimately resulted in renal failure, dialysis, and kidney transplants--Trial court erred in denying defendant's motion for new trial where plaintiff violated pre-trial "one expert per specialty" rule by calling four pathologists to testify regarding the nature of the disease that caused plaintiff's injuries, while defendant was limited to one pathology expert to testify regarding the nature of the disease, and this error was exacerbated by misstating the evidence and bolstering the plaintiff's expert opinion testimony during closing argument.
WALTON v. STATE, 106 So.3d 522, 38 Fla. L. Weekly D333a (Fla. 1DCA 2013). Supreme Court Case No. SC13-1652 (Walton v. State). Order dated April 3, 2014. Oral argument set by separate order. Criminal law--Sentencing--Mandatory minimum--Consecutive sentences--Trial court may properly impose consecutive mandatory minimum sentences under 10-20-Life statute where defendant discharges a firearm during single episode involving multiple victims, and also where there are multiple victims in a single episode and defendant does not discharge a firearm--Trial court did not err in imposing consecutive mandatory minimum sentences on two counts of attempted armed robbery with possession of a firearm where the offenses were committed on two different victims in a single episode--Conflict certified--Trial court erred in resentencing defendant in his absence--Defense counsel's consent did not serve to waive defendant's right to be present at resentencing.
WEATHERSPOON v. STATE, __ So.3d __, 40 Fla. L. Weekly D1470a & D1915a (Fla. 4DCA 2015). Supreme Court Case No. SC15-1542 (Weatherspoon v. State). Order dated October 15, 2015. Oral argument set by separate order. Criminal law--Attempted murder--Jury instructions--No error in instructing jury on attempted felony murder although information charged attempted premeditated murder--Statements of defendant--Statements made subsequent to request to contact counsel--Equivocal request--Question certified: In light of the legislature's creation of section 782.051, which created a crime called "attempted felony murder," that was previously declared by State v. Gray to be a nonexistent crime under section 782.04(1)(a), does the state need to specifically allege the elements of and cite to section 782.051 or does an allegation of attempted premeditated murder automatically include attempted felony murder, just as an indictment for premeditated murder automatically includes felony murder?
WEAVER v. MYERS, 170 So.3d 873, 40 Fla. L. Weekly D1676f (Fla. 1DCA 2015). Supreme Court Case No. SC15-1538 (Weaver v. Myers). Order dated April 13, 2016. Oral argument set by separate order. Wrongful death--Medical malpractice--Presuit requirements--Statutory amendments which allow for presuit ex parte interviews between potential defendants and potential claimants' treating health care providers, and require potential claimants to sign a written waiver of federal privacy protection concerning relevant medical information prior to instigating a medical malpractice lawsuit, are constitutional and are not preempted by Health Insurance Portability Accountability Act--Amendments do not violate separation of powers doctrine by intruding upon Florida Supreme Court's procedural rule-making power--Amendments do not constitute a special law--Amendments do not burden right of access to courts--Amendments do not violate right to privacy.
WEBER v. MARINO PARKING SYSTEMS, INC., 100 So.3d 729, 37 Fla. L. Weekly D2576a (Fla. 2DCA 2012). Supreme Court Case No. SC12-2507 (Weber v. Marino Parking Systems, Inc.). Order dated April 23, 2013. Oral argument to be set by separate order. Wrongful death--Negligence--Valet service--Action against valet parking service by estate of decedent who was killed in automobile accident while riding in vehicle being driven by vehicle owner to whom valet service had returned car keys while owner was obviously intoxicated--Trial court properly dismissed action on ground that valet parking service owes no duty to third parties to refrain from returning car keys to an obviously intoxicated customer--A valet service, a bailee, cannot be liable for negligently entrusting a car to its rightful owner.
WEEKS v. STATE, 146 So.3d 81, 39 Fla. L. Weekly D1798a (Fla. 1DCA 2014). Supreme Court Case No. SC14-1856 (State v. Weeks). Order dated December 15, 2014. No oral argument. Criminal law--Possession of firearm by convicted felon--Replica of antique firearm--Section 790.23, Florida Statutes, is unconstitutional with respect to the possession of a replica of an antique firearm by a convicted felon--Statute is unconstitutionally vague as to antique replica firearms because the phrases "firearm" and "antique firearm" defined in chapter 790 do not give adequate notice of what constitutes a permissible replica of an antique firearm which may be lawfully carried by a convicted felon--Conflict certified.
WILLIAMS v. STATE, 167 So.3d 483, 40 Fla. L. Weekly D1337a (Fla. 5DCA 2015). Supreme Court Case No. SC15-1417 (Williams v. State). Order dated December 30, 2015. Oral argument set by separate order. Criminal law--Refusal to submit to breath alcohol test--Search and seizure--It is not unconstitutional to punish a person criminally for refusing to submit to a breath alcohol test when the officer conducting the test does not have a warrant--Although warrantless search of defendant in the form of a breath alcohol test following arrest for driving under the influence does not fall under exceptions to warrant requirement as a consent to search under statutory implied consent law or as a search incident to arrest, such a warrantless search satisfies general reasonableness requirement of Fourth Amendment.
WILLIAMS v. STATE, 189 So.3d 288, 41 Fla. L. Weekly D898d (Fla. 1DCA 2016). Supreme Court Case No. SC16-785 (Williams v. State). Order dated August 23, 2016. No oral argument. Criminal law--Sentencing--Correction--Trial court did not err in denying claim that sentence of life imprisonment as a dangerous sexual offender for a second-degree felony punishable by up to fifteen years' imprisonment was an illegal sentence--A minimum mandatory life sentence is authorized by section 794.0115 regardless of the statutory maximum of the crime--Conflict certified.
WILLIAMS v. STATE, 184 So.3d 1205, 41 Fla. L. Weekly D189a (Fla. 1DCA 2016). Supreme Court Case No. SC16-451 (Williams v. State). Order dated November 21, 2016. No oral argument. Criminal law--Search and seizure--Package sent via U.S. Postal Service--Search of package received by third party where the addressee was an alias used by third party, who had agreed to turn the package over to defendant after receipt--Evidence did not support finding that law enforcement impermissibly relied on third party's consent to search the package because law enforcement knew that third party was not the person to whom the package was addressed--Standing to challenge search--Expectation of privacy--Defendant had no standing to challenge search of package where defendant was not listed as the sender or addressee, package was not addressed to defendant under his fictitious name, and defendant had no expectation of privacy in the location where the package was delivered--Error to suppress marijuana discovered in search of package.
WILLIAMS v. STATE, __ So.3d __, 42 Fla. L. Weekly D363b (Fla. 5DCA 2017). Supreme Court Case No. SC17-506 (Williams v. State). Order dated April 4, 2017. Oral argument to be set by separate order. Criminal law -- Murder committed by juvenile -- Sentencing -- Sentence review after appellate court had reversed sentence of life imprisonment -- Where appellate court, on remand, had instructed trial court to make written finding as to whether defendant killed, intended to kill, or attempted to kill the victim, because the jury did not find that defendant actually possessed and discharged a firearm during the crime, trial court did not err in denying defendant's motion to empanel a jury to make a factual finding as to whether defendant actually killed, intended to kill, or attempted to kill the victim -- Question certified: Does Alleyne v. United States, 133 S.Ct. 2151 (2013), require the jury and not the trial court to make the factual finding under section 775.082(1)(b), Florida Statutes (2016), as to whether a juvenile offender actually killed, intended to kill, or attempted to kill the victim?
WILLIAMS v. STATE, 203 So.3d 1020, 41 Fla. L. Weekly D2495b (Fla. 2DCA 2016). Supreme Court Case No. SC16-2170 (Williams v. State). Order dated May 3, 2017. No oral argument. Criminal law--Sentencing--Sentence of thirty-five years' imprisonment for murder committed when defendant was a juvenile is not unconstitutional--Sentence of twenty-five years with a twenty-five-year mandatory minimum for nonhomicide committed when defendant was a juvenile is not a de facto life sentence, and is not unconstitutional.
WRIGHT v. CITY OF MIAMI GARDENS, __ So.3d __, 41 Fla. L. Weekly D1907a (Fla. 3DCA 2016). Supreme Court Case No. SC16-1518 (Wright v. City of Miami Gardens). Order dated August 26, 2016. No oral argument. Elections--Qualification of candidate--Where the check for qualification fee of potential candidate for mayor was returned by bank after expiration of qualifying period through no fault of potential candidate, potential candidate was disqualified as a candidate--Trial court properly denied potential candidate's motion for injunctive and mandamus relief to require placement of his name on list of qualified candidates--Question certified: Does section 99.061(7)(a)1. require a candidate's disqualification when the candidate's qualifying fee check is returned by the bank after the expiration of the qualifying period due to a banking error over which the candidate has no control?