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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.
ALACHUA COUNTY v. EXPEDIA, INC., 110 So.3d 941, 38 Fla. L. Weekly D482a & D840a (Fla. 1DCA 2013). Supreme Court Case No. SC13-838 (Alachua County v. Expedia, Inc.). Order dated September 10, 2013. Oral argument set by separate order. Taxation--Tourist Development Tax--Scope--Tourist Development Tax does not apply to entire amount online travel companies collect from hotel customers who reserve their hotel rooms through the companies--Tax applies only to the amount of money the companies send to the hotels for the reserved rooms, and not to additional compensation retained by companies--The privilege being exercised for purposes of the Tourist Development Tax is renting rooms to tourists--Question certified: Does the "Local Option Tourist Development Act," codified at section 125.0104, Florida Statutes, impose a tax on the total amount of consideration received by an on-line travel company from tourists who reserve accommodations using the on-line travel company's website, or only on the amount the property owner receives for the rental of the accommodations?
ALCORN v. STATE, __ So. 3d __, 36 Fla. L. Weekly D1220a (Fla. 4DCA 2011). Supreme Court Case No. SC11-1322 (Alcorn v. State). Order dated October 31, 2011. No oral argument. Criminal law--Post conviction relief--Claim that counsel failed to convey to defendant before trial a twelve-year plea offer and failed to advise defendant that he qualified as a habitual offender and faced a potential life sentence, and that defendant would have accepted the plea offer if he had been properly advised--In denying claim that counsel failed to convey plea offer, court did not err in rejecting defendant's self-serving testimony and considering counsel's testimony regarding standard practice and circumstantial evidence to find that plea offer was conveyed and rejected--Defendant cannot demonstrate prejudice resulting from counsel's failure to advise him that he qualified as a habitual offender where defendant was aware that he could receive up to thirty years in prison when he rejected the plea offer, and defendant was sentenced to thirty years--Conflict certified with regard to the proper remedy when an attorney fails to correctly advise a defendant at the time of a plea offer regarding the statutory maximum sentence.
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.
ARNOLD v. AUDIFFRED, 98 So.3d 746, 37 Fla. L. Weekly D2373d (Fla. 1DCA 2012). Supreme Court Case No. SC12-2377 (Audiffred v. Arnold). Order dated May 3, 2013. No oral argument. Torts--Automobile accident--Attorney's fees--Proposal for settlement--Validity--Joint proposal--Proposal for settlement was a joint proposal, although it stated at outset that it was submitted by only one party, where, when read as a whole, the proposal clearly expressed promise that two plaintiffs would dismiss with prejudice each of their individual claims against defendant upon acceptance and where proposal was submitted by the plaintiffs' shared attorney, an individual who had the apparent authority to make the proposal for settlement--Joint proposal for settlement was not valid where it failed to apportion proposed amount between the two plaintiffs.
ARSALI v. CHASE HOME FINANCE LLC, __ So. 3d __, 37 Fla. L. Weekly D230b (Fla. 4DCA 2012). Supreme Court Case No. SC12-600 (Arsali v. Chase Home Finance LLC). Order dated May 11, 2012. Oral argument will be set by separate order. Mortgage foreclosure--Sale--Vacation--Circuit court did not abuse its discretion when it granted defendants' motion to vacate foreclosure sale and certificate of sale, vacated final judgment, and dismissed case without holding hearing to determine whether sale price was grossly inadequate where it was undisputed that bank and defendants had settled case and that their agreement provided that the foreclosure sale should have been cancelled--Court recedes from line of cases which suggests that grossly inadequate sale price must always be part of legal equation when ruling on motion to set aside foreclosure sale--Question certified: Does the test set forth in Arlt v. Buchanan, 190 So. 2d 575 (Fla. 1966), for vacating a foreclosure sale apply when adequacy of the bid price is not at issue?
ATWELL v. STATE, 128 So.3d 167, 38 Fla. L. Weekly D2363b (Fla. 4DCA 2013). Supreme Court Case No. SC14-193 (Atwell v. State). Order dated September 16, 2014. No oral argument. Criminal law--Post conviction relief--Sentencing--Defendant not entitled to relief on claim that life sentences without possibility of parole for 25 years for homicide committed while defendant was juvenile constituted cruel and unusual punishment under U.S. Supreme Court's holding in Miller v. Alabama, as Miller applies only to mandatory sentence of life without possibility of parole--Claim that defendant was impermissibly sentenced to life without possibility of parole on armed robbery count was not preserved and may not be raised for first time on appeal.
AUSTIN v. STATE, __ So.3d __, 39 Fla. L. Weekly D1952a (Fla. 1DCA 2014). Supreme Court Case No. SC14-2215 (Austin v. State). Order dated February 13, 2015. No oral argument. Criminal law--Evidence was sufficient to support convictions of first-degree premeditated murder, armed kidnapping with intent to facilitate felony, and armed robbery--Sentencing--Homicide and nonhomicide offenses committed when defendant was juvenile--Appeals--Claim that 99-year sentences for nonhomicide offenses committed when defendant was juvenile amounted to de facto life-without-parole sentences and violated U.S. Supreme Court ruling in Graham v. Florida was not preserved for appeal by either contemporaneous objection or rule 3.800(b) motion--Claim that aggregate sentence of 135 years for nonhomicide offenses committed in two separate cases exceeded any natural life expectancy was not preserved for appeal where defendant failed to raise any argument before trial court that aggregation of sentences imposed in distinct cases at separate times violated Graham or was even subject to Graham--Claim that 90-year sentence for premeditated first-degree murder was illegal because the only statutorily authorized sentence for a juvenile who commits first degree murder is mandatory life imprisonment was not preserved for appeal--Claim that 90-year sentence for first degree murder amounted to de facto life sentence and was imposed without considering information necessary to make findings required by U.S. Supreme Court's holding in Miller v. Alabama was not preserved for review.
BANK OF AMERICA CORPORATION v. VALLADARES, 141 So.3d 714, 39 Fla. L. Weekly D1390a (Fla. 3DCA 2014). Supreme Court Case No. SC14-1629 (Valladares v. Bank of America Corporation). Order dated January 28, 2015. Oral argument set by separate order. Torts--Negligence--Action against bank by plaintiff who suffered personal injuries at the hands of the police when bank mistakenly reported plaintiff to be a bank robber--A person cannot be held liable for simple negligence when contacting police to report suspected criminal activity--Judgment for plaintiff reversed--Because plaintiff elected to go to trial on theory of simple negligence, plaintiff is not entitled to a new trial on a different theory--Remand for entry of judgment for defendant bank.
BEARDEN v. STATE, 62 So.3d 656, 36 Fla. L. Weekly D760a (Fla. 2DCA 2011). Supreme Court Case No. SC12-1314 (Bearden v. State). Order dated July 25, 2013. Oral argument set by separate order. Criminal law--Second degree murder--Evidence--Hearsay--Exceptions--Statements against penal interest--Trial court did not err by excluding hearsay testimony from witness who claimed to have heard third party admit to committing the offense for which defendant was convicted after determining that third party's statement was not corroborated by any evidence in the case other than defendant's pretrial statement--No error in refusing to permit defendant to recall third party, whom defendant had called as a defense witness, in order to question him about his purported statements against penal interest where the statements at issue did not satisfy test for admissibility--Under circumstances, it was impermissible for defendant to call third party as defense witness for sole purpose of placing impeaching testimony before the jury.
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.
BLACKMON v. STATE, 58 So.3d 343, 36 Fla. L. Weekly D690a (Fla. 1DCA 2011). Supreme Court Case No. SC11-903 (Blackmon v. State). Order dated August 16, 2011. Oral argument set for March 6, 2012. Criminal law--Defendant was erroneously convicted of both petit theft and dealing in stolen property where the offenses involved the same property and arose from the same course of conduct--Error may properly be raised on appeal even though defendant did not raise objection in trial court--There is no merit to contention that failure to instruct jury that it cannot return a guilty verdict for both theft and dealing in stolen property can only be corrected by award of new trial--Proper remedy is for conviction of lesser offense of petit theft to be vacated--Conflict certified regarding proper remedy when defendant is convicted of both theft and dealing in stolen property.
BOOZER v. STALLEY, 146 So.3d 139, 39 Fla. L. Weekly D1907b (Fla. 5DCA 2014). Supreme Court Case No. SC14-1818 (Stalley v. Boozer). Order dated December 15, 2014. Oral argument set by separate order. Insurance--Automobile liability--Bad faith--Discovery--Attorney-client privilege is applicable to discovery sought by injured party in third-party bad faith action against liability insurer where there was been no assignment from insured to injured party--Trial court departed from essential requirements of law in ordering attorney for insured and insurer to submit to deposition and produce documents without adequate consideration of insured's attorney-client privilege--Question certified: Do the decisions in Allstate Indemnity Co. v. Ruiz, 899 So. 2d 1121 (Fla. 2005), and Genovese v. Provident Life & Accident Insurance Co., 74 So. 3d 1064 (Fla. 2011), shield attorney-client privileged communications from discovery in third-party bad faith litigation?
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.
BRETHERICK v. STATE, __ So.3d __, 38 Fla. L. Weekly D2276a (Fla. 5DCA 2013). Supreme Court Case No. SC13-2312 (Bretherick v. State). Order dated April 15, 2014. Oral argument set by separate order. Criminal law--Aggravated assault with firearm--Immunity--Stand Your Ground law--Prohibition--Appropriate vehicle to obtain review before trial of denial of "Stand Your Ground" motion invoking self-defense immunity is petition for writ of prohibition--Trial court properly placed on defendant the burden of proving entitlement to immunity from prosecution--Trial court correctly found that victim's actions after he had cut in front of defendant's vehicle, slammed on his brakes, and stopped his truck on highway in front of defendant's vehicle did not rise to level of false imprisonment, aggravated assault, or other forcible felony, and, accordingly, defendant could not justify use of force on this basis--Question certified: Once the defense satisfies the initial burden of raising the issue, does the state have the burden of disproving a defendant's entitlement to self-defense immunity at a pretrial hearing as it does at trial?
BROWNING v. POIRIER, 128 So.3d 144, 38 Fla. L. Weekly D2333d (Fla. 5DCA 2013). Supreme Court Case No. SC13-2416 (Browning v. Poirier). Order dated June 20, 2014. Oral argument set by separate order. Contracts--Oral--Statute of frauds--Agreement not to be performed within one year--Agreement between parties who were involved in a romantic relationship and living together to split the proceeds of any lottery tickets that they may purchase and that the agreement was to last as long as they remained romantically involved--Trial court did not err in granting directed verdict for defendant on count alleging breach of the oral agreement where there was evidence that parties contemplated that the relationship would last more than one year--Unjust enrichment--Trial court erred in entering directed verdict for defendant on unjust enrichment count where plaintiff testified that he gave defendant the money to purchase winning lottery ticket and that they jointly purchased the ticket with the implied understanding that they would share the proceeds--Question certified: Is an oral agreement to play the lottery and split the proceeds in the event a winning ticket is purchased unenforceable under the statute of frauds when: there is no time agreed for the complete performance of the agreement; the parties intended the agreement to extend for a period longer than one year and it did extend for a period of fourteen years; and it clearly appears from the surrounding circumstances and the object to be accomplished that the oral agreement would last longer than one year?
BRYANT v. STATE, 93 So. 3d 381, 37 Fla. L. Weekly D1544a (Fla. 2DCA 2012). Supreme Court Case No. SC12-1507 (Bryant v. State). Order dated November 6, 2012. No oral argument. Criminal law--Sentencing--Guidelines--Departure--Trial court erred in sentencing defendant to five years incarceration for petit theft where defendant's guidelines scoresheet score was 17.1 points and trial court failed to make written findings that a non-state prison sanction could present a danger to the public--Remand for resentencing where court may again impose prison sanction if it makes proper written findings--Conflict certified.
CAPONE v. PHILIP MORRIS USA, INC., 56 So. 3d 34, 35 Fla. L. Weekly D2639a (Fla. 3DCA 2010). Supreme Court Case No. SC11-849 (Capone v. Philip Morris USA, Inc.). Order dated April 12, 2012. Oral argument set for June 5, 2012. Wrongful death--Limitation of actions--Action against cigarette manufacturers--Wrongful death action was barred by statute of limitations because personal injury action abated upon death of decedent, and separate wrongful death action was not filed prior to expiration of two-year statute of limitations for that cause of action--A personal injury claim is extinguished upon death of plaintiff, and any surviving claim must be brought as a new and separate wrongful death claim.
CASTELLANOS v. NEXT DOOR COMPANY, 124 So.3d 392, 38 Fla. L. Weekly D2232a (Fla. 1DCA 2013). Supreme Court Case No. SC13-2082 (Castellanos v. Next Door Company). Order dated March 14, 2014. Oral argument set by separate order. Workers' compensation--Attorney's fees--Statutory formula for attorney's fee awards set forth in section 440.34(1) is constitutional, both on its face and as applied in instant case in which claimant's counsel was awarded fee of less than $200 for over 100 hours of legal work reasonably necessary to secure claimant's workers' compensation benefits--Question certified whether the award of attorney's fees in this case is adequate, and consistent with the access to courts, due process, equal protection, and other requirements of the Florida and federal constitutions.
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.
CONDOMINIUM ASSOCIATION OF LA MER ESTATES, INC. v. BANK OF NEW YORK MELLON, 137 So.3d 396, 39 Fla. L. Weekly D398b (Fla. 4DCA 2014). Supreme Court Case No. SC14-1049 (Bank of New York Mellon v. Condominium Association of La Mer Estates, Inc.). Order dated August 7, 2014. No oral argument. Civil procedure--Real property--Default--Quiet title--Void and voidable judgments--A default judgment based upon a complaint which fails to state a cause of action is voidable, and thus can be attacked only within a year of the entry of judgment, but not void, such that it could be attacked at any time--Where trial court had entered final judgment quieting title for condominium association against bank, and one and a half years later granted bank's motion to vacate quiet title judgment on grounds it was void because the complaint, failing to show why bank's claim of interest in the property was invalid, had failed to state a cause of action to quiet title, trial court was properly following existing law from district court, but district court now recedes from that law--Order vacating final judgment reversed and remanded for reinstatement of final judgment--Conflict certified.
CREWS v. STATE, 130 So.3d 698, 38 Fla. L. Weekly D2392a (Fla. 1DCA 2013). Supreme Court Case No. SC14-319 (Crews v. State). Order dated May 29, 2014. Oral argument set by separate order. Criminal law--Sexual activity with child while in position of familial or custodial authority--Teacher who engaged in sexual activity with student was not in position of custodial authority where sexual activity occurred away from school, at a time when defendant was not the victim's classroom teacher, and was unconnected to a school activity--Error to deny motion to dismiss charge--Limitation of actions--Statute of limitations for other offenses committed by defendant was extended by statute providing for extension of limitations period for offenses based upon misconduct in office by public employee.
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.
DAUGHERTY v. STATE, 96 So.3d 1076, 37 Fla. L. Weekly D2145e (Fla. 4DCA 2012). Supreme Court Case No. SC14-860 (Daugherty v. State). Order dated December 17, 2014. Oral argument set by separate order. Criminal law--Second degree murder--Attempted second degree murder--Jury instructions--Manslaughter--Trial court did not reversibly err in giving standard jury instruction on lesser-included offense of manslaughter where jury was also instructed on lesser-included offense of third degree murder, making manslaughter two steps removed from second degree murder charge for which defendant was convicted--Trial court did not, under circumstances, fundamentally err in instructing jury on attempted voluntary manslaughter as lesser included offense of attempted murder charges--Conflict certified--Sentencing--Cruel and/or unusual punishment--Although sentence of life imprisonment without possibility of parole for homicide committed when defendant was seventeen years old was permissible sentence, sentencing judge had responsibility of expressly considering whether any of the numerous "distinctive attributes of youth" referenced by U.S. Supreme Court in Miller v. Alabama diminish the "penological justifications" for imposing a life-without-parole sentence upon defendant--Trial court not precluded from again imposing life term without parole if court, upon reconsideration, deems such sentence justified.
DE LA PORTILLA v. STATE, __ So.3d __, 39 Fla. L. Weekly D1457a (Fla. 1DCA 2014). Supreme Court Case No. SC14-1625 (State v. De La Portilla). Order dated September 8, 2014. Oral argument set by separate order. Contempt--Direct criminal--Dissolution of marriage--Failure to appear in court is punishable by direct criminal contempt under rule 3.830 and may be adjudged concurrently in a civil proceeding--Question certified whether a party who is ordered by a trial court to appear at a scheduled hearing, but fails to do so, may be found in direct criminal contempt under Florida Rules of Criminal Procedure 3.830; or whether such conduct should be addressed as indirect criminal contempt under Florida Rules of Criminal Procedure 3.840?--Trial court erred in holding former husband in direct criminal contempt for failure to appear at contempt hearing without finding that husband had been notified that he was required to attend but failed to do so without excuse--Double jeopardy--Reinstitution of direct criminal contempt proceedings on remand is prohibited where original criminal contempt conviction was based on insufficient evidence.
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.
DORSETT v. STATE, __ So.3d __, 38 Fla. L. Weekly D233a (Fla. 4DCA 2013). Supreme Court Case No. SC13-310 (State v. Dorsett). Order dated August 7, 2013. No oral argument. Criminal law--Leaving scene of a crash involving injury--Jury instructions--Where defendant claimed that he was unaware that an accident had occurred, it was error for trial court to fail to give requested instruction that in order to prove the crime of leaving the scene of an accident state must prove that the defendant knew that he was involved in an accident--Question certified: In a prosecution for violation of section 316.027, Florida Statutes (2006), should the standard jury instruction require actual knowledge of the crash?
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.
FLOYD v. STATE, __ So.3d __, 39 Fla. L. Weekly D1800a (Fla. 1DCA 2014). Supreme Court Case No. SC14-2162 (State v. Floyd). Order dated December 16, 2014. Oral argument set by separate order. Criminal law--Second degree murder--Self-defense--Stand Your Ground Law--Jury instructions--Trial court committed fundamental error in giving conflicting jury instructions which stated that defendant had no duty to retreat if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or another, or to prevent the commission of a forcible felony, but also that defendant had to exhaust every reasonable means of escape--In effect, jury instruction provided that defendant did not have duty to retreat before meeting deadly force with deadly force if in fear of death or great bodily harm and did have a duty to try to retreat before using deadly force if in fear of death or great bodily harm.
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.
FRAZIER v. PHILIP MORRIS USA, INC., 89 So.3d 937, 37 Fla. L. Weekly D832a (Fla. 3DCA 2012). Supreme Court Case No. SC12-1401 (Philip Morris USA, Inc. v. Russo). Order dated September 3, 2013. Oral argument set by separate order. Torts--Product liability--Tobacco--Individual action by member of Engle class--Limitation of actions--Error to deny plaintiff's motion for directed verdict on statute of limitations defense--There was no competent record evidence that the accumulated effects of tobacco had manifested in a way which supplied plaintiff some evidence of the causal relationship to tobacco before the limitations bar date--Plaintiff made and preserved meritorious objections to court's adoption of jury instruction and special interrogatory verdict question submitted by defendants on statute of limitations defense--Evidence--Trial court properly granted motion in limine to preclude speculative testimony by defense expert regarding time frame when plaintiff had knowledge of her COPD and emphysema, and expert's testimony exceeded the limitations imposed by court order--Trial court did not err in giving preclusive effect to findings in Engle--Twelve-year statute of repose relating to fraud claims did not bar cause of action for fraudulent concealment or conspiracy to conceal, and trial court did not err in denying jury instruction on statute of repose.GAULDEN v. STATE, __ So.3d __, 39 Fla. L. Weekly D379a (Fla. 1DCA 2014). Supreme Court Case No. SC14-399 (Gaulden v. State). Order dated April 2, 2014. No oral argument. Criminal law--Leaving scene of crash resulting in death--When a passenger separates from a moving vehicle and collides with the roadway or adjacent pavement, but the vehicle has no physical contact either with the passenger, after the passenger's exit, or with any other vehicle, person, or object, the vehicle is "involved in a crash" so that the driver may be held criminally responsible for leaving the scene--Question certified.
GEICO GENERAL INSURANCE COMPANY v. PATON, 133 So.3d 1071, 39 Fla. L. Weekly D132b (Fla. 4DCA 2014). Supreme Court Case No. SC14-282 (Paton v. Geico General Insurance Company). Order dated October 8, 2014. No oral argument. Attorney's fees--Insurance--Discovery--Attorney's billing records--Orders permitting discovery of billing records of counsel, which were sought by opposing party in support of her own claim for attorney's fees, quashed.
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.
GOLDEN v. JONES, 126 So.3d 390, 38 Fla. L. Weekly D2259a (Fla. 4DCA 2013). Supreme Court Case No. SC13-2536 (Jones v. Golden). Order dated July 1, 2014. Oral argument to be set by separate order. Estates--Claims--Timeliness--If a known or reasonably ascertainable creditor is never served with a copy of the notice to creditors, statute of limitations in section 733.702(1), Florida Statutes, never begins to run and the creditor's claim is timely if it is filed within two years of the decedent's death--Where claim was filed within two years of decedent's death, it was error for trial court to strike the claim as untimely without first determining whether claimant was a known or reasonably ascertainable creditor--Conflict certified.
GRANICZ v. CHIRILLO, 147 So.3d 544, 39 Fla. L. Weekly D400a (Fla. 2DCA 2014). Supreme Court Case No. SC14-898 (Chirillo v. Granicz). Order dated December 17, 2014. Oral argument set by separate order. Wrongful death--Suicide--Medical malpractice--Trial court erred in granting final summary judgment against plaintiff based on its determination that defendant, a primary care physician who treated decedent for depression, did not have legal duty to prevent unforeseeable suicide of an outpatient where complaint alleged that defendant had duty to exercise reasonable care in his treatment of decedent and plaintiff provided expert testimony setting forth applicable standard of care for physician treating a patient for depression, how the standard of care was breached, and how the breach proximately caused decedent's suicide--Proper inquiry court should have made to determine legal issue of duty is whether defendant's conduct created foreseeable zone of risk, not whether defendant could foresee specific injury that actually occurred--Conflict certified.
GRIFFIN v. STATE, __ So.3d __, 38 Fla. L. Weekly D1972a (Fla. 2DCA 2013). Supreme Court Case No. SC13-2450 (Griffin v. State). Order dated February 17, 2014. No oral argument. Criminal law--Second-degree murder--Jury instructions--Manslaughter by act--Where defendant was tried for second-degree murder and parties agreed that lesser included offense of manslaughter by act should be read to jury, trial court erroneously gave 2006 version of manslaughter by act instruction which erroneously requires an intent to kill--Error was not fundamental, however, because, since the defendant's only defense was mistaken identity, the intent element was not disputed at trial; hence the erroneous instruction did not pertain to a disputed element of the offense.
GUTIERREZ v. STATE, 133 So.3d 1125, 39 Fla. L. Weekly D364a (Fla. 5DCA 2014). Supreme Court Case No. SC14-799 (Gutierrez v. State). Order dated September 9, 2014. No oral argument. Criminal law--Sexual battery--Jury instructions--It was error for trial court to grant state's request for a special jury instruction informing the jury that a sexual battery victim's testimony need not be corroborated--Door was not opened to giving of instruction by assertion by defense in opening statement that there would be no corroborating evidence presented--Error in giving of instruction was harmless where, although there were no eyewitnesses, there was DNA evidence obtained from vaginal swab that matched defendant, as well as testimony from sexual assault nurse and photographs of victim's injuries that were consistent with described attack.
HAHAMOVITCH v. HAHAMOVITCH, __ So.3d __, 39 Fla. L. Weekly D102a (Fla. 4DCA 2014). Supreme Court Case No. SC14-277 (Hahamovitch v. Hahamovitch). Order dated April 22, 2014. Oral argument set by separate order. Dissolution of marriage--Prenuptial agreement--Trial court did not err in finding prenuptial agreement to be valid where wife failed to establish that agreement was invalid for fraud or misrepresentation, and agreement was fair when it was entered into--Application of equitable distribution statute to prenuptial agreement executed before enactment of statute did not constitute an unconstitutional impairment of a preexisting contract--Provisions of prenuptial agreement were broad enough to waive wife's claim to any assets owned by husband at time of agreement or acquired in his name thereafter, including any enhancement of property titled in husband's name that was acquired or enhanced during marriage with marital labor or earnings--Conflict certified--Trial court erred in finding that wife waived right to petition for modification of alimony--Question certified: Where a prenuptial agreement provides that neither spouse will ever claim any interest in the other's property, states that each spouse shall be the sole owner of property purchased or acquired in his or her name, and contains language purporting to waive and release all rights and claims that a spouse may be entitled to as a result of the marriage, do such provisions serve to waive a spouse's right to any share of assets titled in the other spouse's name, even if those assets were acquired during marriage due to the parties' marital efforts or appreciated in value during the marriage due to the parties' marital efforts?
HEADLEY v. CITY OF MIAMI, 118 So.3d 885, 38 Fla. L. Weekly D1559a (Fla. 1DCA 2013). Supreme Court Case No. SC13-1882 (Headley v. City of Miami). Order dated August 28, 2014. Oral argument set by separate order. Labor relations--Public employees--Unfair labor practices--Public Employees Relations Commission did not err in finding that city did not commit an unfair labor practice by unilaterally modifying collective bargaining agreement pursuant to section 447.4095, Florida Statutes (2010), on the basis that the city was facing a financial urgency that required the modification--Financial urgency is a dire financial condition requiring immediate attention and demanding prompt and decisive action, but not necessarily a financial emergency or bankruptcy--Section 447.4095 may only be invoked if the financial condition requires modification of the agreement--If financial condition can be adequately addressed by other reasonable means, modification of the agreement is not required--If other reasonable alternatives available to local government are not adequate to address the financial condition facing the government, section 447.4095 permits the local government to unilaterally modify the CBA--PERC properly found that city was not required to proceed through the impact resolution process before modifying the CBA.
INGRAM v. STATE, __ So.3d __, 39 Fla. L. Weekly D412a (Fla. 5DCA 2014). Supreme Court Case No. SC14-564 (State v. Ingram). Order dated July 31, 2014. Oral argument set by separate order. Criminal law--Public records--Mandamus--Trial court departed from essential requirements of law when it failed to treat motion of defendant serving life sentence for sexual battery of child to compel production of mirror images of defendant's computer hard drive, reports resulting from forensic examination of his computer, and copies of videotaped interviews of victim and her mother, as a petition for writ of mandamus and failed to have a hearing before denying the public records request--State's position that there is nothing for the trial court to compel it to do because it remains "ready and willing" to provide the records once defendant makes arrangements for the material's redaction is directly contrary to statutory directive that the records' custodian "shall" redact the record and produce remaining portions--Exemptions to public records request--Defendant is entitled to videotaped statement of victim in unredacted form, while all other records must be redacted in accordance with statute before being produced for defendant--Question certified: Does Florida's Public Records Act, specifically section 119.071(2)(j)2.b., Florida Statutes (2013), require a state agency to provide a convicted, incarcerated inmate with an unredacted copy of the videotaped statement of the minor victim of his or her crime?
JACKSON v. STATE, 137 So.3d 470, 39 Fla. L. Weekly D635a (Fla. 4DCA 2014). Supreme Court Case No. SC14-842 (Jackson v. State). Order dated July 8, 2014. Oral argument to be set by separate order. Criminal law--Youthful offender act -- Constitutionality of statute--Equal protection claim--Argument that 2008 amendment changing eligibility for youthful offender sentencing from being under 21 at the time of the offense to being under 21 at the time of sentencing violates equal protection in treating two classes of similarly situated people differently, since, of two defendants who commit crimes the same number of days before turning 21, one may be eligible and the other ineligible depending on when sentencing occurs -- Youthful offender sentencing is not a fundamental right; hence, rational basis analysis applies -- Ensuring the population in the youthful offender program remains "youthful" is a sufficient rational basis for the statute; hence, equal protection argument fails -- Due process claim -- Argument that 2008 amendment violates substantive due process in that it may cause a youthful defendant to make defensive concessions in an effort to hasten his sentencing also fails.JANIE DOE 1 v. SINROD, 117 So.3d 786, 38 Fla. L. Weekly D1022a (Fla. 4DCA 2013). Supreme Court Case No. SC13-1834 (Palm Beach County School Board v. Janie Doe 1). Order dated June 11, 2014. No oral argument. Torts--School boards--Civil rights--Sex discrimination by recipient of federal education funding--Limitation of actions--Amended complaint--Relation back--Impact rule--Action against teacher and school board brought by parents, individually and on behalf of children who were allegedly sexually abused by teacher--Trial court did not err in dismissing parents' claims of negligent infliction of emotional distress on ground that claims were barred by impact rule--Trial court erred in dismissing children's Title IX claims, asserted for the first time in third amended complaint, on ground that claims were time-barred--Children's Title IX statutory claims related back to negligence claims alleged in original proceeding where claims arose from same conduct and resulted in same injury.
J.B. v. DEPARTMENT OF CHILDREN AND FAMILIES, __ So.3d __, 39 Fla. L. Weekly D2100a (Fla. 1DCA 2014). Supreme Court Case No. SC14-1990 (J.B. v. Florida Department of Children and Families). Order dated October 21, 2014. Oral argument set for February 3, 2015. Dependent children--Termination of parental rights--Ineffective assistance of counsel--Claim of ineffective assistance of counsel in termination of parental rights proceeding cannot be raised for first time on appeal unless counsel's ineffectiveness is apparent on face of record, and mother failed to demonstrate on face of record that her trial counsel was ineffective--Standard applicable to ineffective assistance of counsel claims in termination of parental rights proceedings is the criminal standard of ineffective assistance of counsel--Questions certified: I. Is the criminal standard of ineffective assistance of counsel announced in Strickland v. Washington applicable to claims of ineffective assistance of counsel in proceedings involving the termination of parental rights? II. Is any procedure available following the termination of parental rights to raise claims of ineffective assistance of counsel that are not apparent on the face of the record?
JOHNSON v. STATE, 108 So.3d 1153, 38 Fla. L. Weekly D626f (Fla. 5DCA 2013). Supreme Court Case No. SC13-711 (Johnson v. State). Order dated August 2, 2013. No oral argument. Criminal law--Burglary of dwelling while armed--Sentencing--100-year sentence for burglary of dwelling while armed, committed when defendant was under 18 years of age, does not violate Graham v. Florida--Conflict certified.
KELLY v. STATE, 137 So.3d 2, 39 Fla. L. Weekly D570a (Fla. 1DCA 2014). Supreme Court Case No. SC14-916 (Kelly v. State). Order dated October 7, 2014. Oral argument set by separate order. Criminal law--Sentencing--Resentencing following successful rule 3.800 motion--Mandatory minimum--Discharge of firearm--Where it was clear from transcript of original sentencing hearing and written sentencing documents signed at that hearing that trial court's sentence was for 40 years' imprisonment, with special provision that defendant serve a mandatory minimum of 25 years, new sentence which increased the mandatory minimum to make it applicable to the entire 40-year sentence was legally impermissible--Trial court was not precluded from imposing sentence in addition to the mandatory minimum, although overall sentence exceeded statutory maximum for offense--Once trial court imposed mandatory minimum that exceeded the maximum sentence that would otherwise apply to the offense, there was no requirement that additional sentence over that mandatory minimum be authorized by another sentence-enhancing statute--Conflict certified.
KNIGHT v. STATE, 107 So.3d 449, 38 Fla. L. Weekly D157a (Fla. 5DCA 2013). Supreme Court Case No. SC13-564 (Knight v. State). Order dated July 29, 2014. Oral argument set by separate order. Criminal law--Possession of cannabis--Sufficiency of evidence--Standard of review--Trial court properly denied motion for judgment of acquittal grounded on claim that evidence was insufficient to sustain the knowledge element of possession where defendant's theory of innocence was that passenger inside defendant's car could have slipped marijuana into defendant's suitcase while defendant was out of car and just before a K-9-initiated vehicle search occurred--Florida's "special standard of review," applicable to convictions "wholly based on circumstantial evidence," holding that the state must have presented evidence to rebut any reasonable hypothesis of innocence, is inappropriate here because only the knowledge element is supported wholly by circumstantial evidence, with officer testimony providing direct evidence that cannabis was within defendant's dominion and control--Even if the special standard applies, reversal is inappropriate because whether defendant's hypothesis of innocence is "reasonable" should be a question for the jury--Under the special standard a reasonable fact-finder could reject the hypothesis of innocence based on circumstances--Florida's special standard with regard to circumstantial evidence cases should be reconsidered by the Florida Supreme Court because it is misleading, confusing, unhelpful as an analytical tool, and adds to the general standard no substantive protection against improper convictions--Conflict certified.
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.
LAKEVIEW RESERVE HOMEOWNERS ASSOCIATION, INC. v. MARONDA HOMES, INC. OF FLORIDA, 48 So.3d 902, 35 Fla. L. Weekly D2413a (Fla. 5DCA 2010). Supreme Court Case Nos. SC10-2292 & SC10-2336 (Maronda Homes, Inc. of Florida v. Lakeview Reserve Homeowners Association, Inc.; T.D. Thomson Construction Company v. Lakeview Reserve Homeowners Association, Inc.). Order dated April 20, 2011. Oral argument will be set for December 6, 2011. Contracts--Implied warranty of habitability--Homeowners association has claim for breach of common law implied warranties of fitness and merchantability, also referred to as a warranty of habitability, against a builder/developer for defects in roadways, drainage systems, retention ponds, and underground pipes in a residential subdivision--Conflict certified--If an improvement providing a service is essential to the habitability of the home, implied warranties apply--Claims are not required to be brought by individual homeowners.
LAWTON v. STATE, 109 So.3d 825, 38 Fla. L. Weekly D522b (Fla. 3DCA 2013). Supreme Court Case No. SC13-685 (Lawton v. State). Order dated January 14, 2014. No oral argument. Criminal law--Sentencing--Correction--Sentence of life imprisonment without possibility of parole for nonhomicide committed by juvenile violated the holding of U.S. Supreme Court in Graham v. Florida although defendant was also sentenced for an unrelated homicide on the same day--Separate sentence of life imprisonment without possibility of parole for nonhomicide committed by juvenile did not violate Graham where defendant was also sentenced for a homicide that arose out of the same criminal episode on the same day, even though defendant received a lesser sentence of life imprisonment without parole eligibility for twenty-five years for the homicide.
THE LEAGUE OF WOMEN VOTERS OF FLORIDA v. DETZNER, __ So.3d __, 39 Fla. L. Weekly D2079a (Fla. 1DCA 2014). Supreme Court Case No. SC14-1905 (The League of Women Voters of Florida v. Detzner). Order dated October 23, 2014. Oral argument set for March 4, 2015. Legislation--Congressional redistricting--Appeal from final judgment of circuit court declaring parts of Florida legislature's 2012 congressional redistricting plan unconstitutional and approving as a remedy a subsequent redistricting plan adopted by the legislature in a special session--Judgment certified for direct review by Florida Supreme Court.
LEE v. BOARD OF TRUSTEES, JACKSONVILLE POLICE & FIRE PENSION FUND, 113 So.3d 1010, 38 Fla. L. Weekly D889b (Fla. 1DCA 2013). Supreme Court Case No. SC13-1315 (Board of Trustees, Jacksonville etc. v. Lee). Order dated June 18, 2014. Oral argument set by separate order. Attorney's fees--Public records--Lower court erred as matter of law by concluding that plaintiff was not entitled to attorney's fees, despite agency's violation of section 119.07 by refusing to disclose certain records, because agency's violation was neither knowing, willful, nor done with malicious intent--Refusal by an entity that is clearly an agency within meaning of chapter 119 constitutes an unlawful refusal.
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.
LIMONES v. SCHOOL DISTRICT OF LEE COUNTY, 111 So.3d 901, 38 Fla. L. Weekly D280a (Fla. 2DCA 2013). Supreme Court Case No. SC13-932 (Limones v. School District of Lee County). Order dated February 6, 2014. Oral argument set by separate order. Torts--Counties--School boards--Action on behalf of high school athlete who collapsed on field during high school soccer game and suffered brain injury when he was not resuscitated until emergency personnel arrived and used a defibrillator, alleging that school board was negligent in failing to maintain an automated external defibrillator on or near the soccer field, to make it available for use, or in failing to actually use it on plaintiff--School board did not have a common law duty to maintain, make available, or use an AED--Undertaker's doctrine--School board did not voluntarily undertake the duty to use an AED by acquiring one and providing training on its use--Neither Good Samaritan Act nor Cardiac Arrest Survival Act sets forth duty to use an AED--Even if there had been such a duty, school board would have been entitled to immunity from civil liability under Cardiac Arrest Survival Act because under the terms of that Act, it acquired an AED and made it available for use by having it in the end zone of the soccer field--Trial court properly entered summary judgment for defendant school board.
LUCAS v. STATE, 147 So.3d 611, 39 Fla. L. Weekly D1925a (Fla. 4DCA 2014). Supreme Court Case No. SC14-1925 (State v. Lucas). Order dated January 8, 2015. No oral argument. Criminal law--Post conviction relief--Counsel--Ineffectiveness--Trial court erred in finding claim that counsel was ineffective for failing to consult and hire ophthalmologist expert to rebut state's claim that victim suffered "permanent damage" as an element of aggravated battery was legally insufficient because defendant did not identify specific witness--Motion sufficiently explained relevance and substance of expected testimony and alleged that outcome of proceedings would have been different.
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?
MAUNA LOA INVESTMENTS, LLC. v. SANTIAGO, 122 So.3d 520, 38 Fla. L. Weekly D2176a (Fla. 3DCA 2013). Supreme Court Case No. SC13-2194 (Santiago v. Mauna Loa Investments, LLC.). Order dated May 22, 2014. Oral argument set by separate order. Torts--Premises liability--Trip and fall on allegedly unsafe walkway--Error to enter default judgment against defendant who was not the owner of the property on date when plaintiff's injury occurred--Default judgment may not be entered against defendant on a complaint which wholly fails to state a cause of action against the defendant--Because complaint failed to state a claim against defendant, trial court erred in failing to grant defendant's motion to vacate judgment as void.
McADAMS v. STATE, __ So.3d __, 39 Fla. L. Weekly D431a (Fla. 2DCA 2014). Supreme Court Case Nos. SC14-788 and SC14-826 (State v. McAdams, McAdams v. State (Consolidated)). Order dated May 7, 2014. Oral argument set by separate order. Criminal law--Murder--Search and seizure--Residence--No error in denying motion to suppress evidence seized during search of residence of defendant's wife where wife had been reported missing by other family members and, in any event, search was done with defendant's consent--Confession--No error in finding that defendant was not in custody at time he confessed to murders--Officers did not violate defendant's due process rights by refusing to interrupt noncustodial interview upon the arrival at the police station of an attorney whom defendant's parents had retained on his behalf--No error in denying motion to suppress evidence collected during non-custodial portion of interview--Question certified: Does an adult suspect who is not in custody but voluntarily engages in a lengthy interview in an interrogation room at a law enforcement office have a due process right to be informed that a lawyer has been retained by his family and is in the public section of the law enforcement office and wishes to talk to him?--Evidence collected after detectives read defendant his Miranda rights until they told him about the attorney was collected in violation of defendant's right to due process and should have been suppressed.
McCLOUD v. STATE, 139 So.3d 474, 39 Fla. L. Weekly D1158b (Fla. 5DCA 2014). Supreme Court Case No. SC14-1150 (McCloud v. State). Order dated December 17, 2014. Oral argument set by separate order. Criminal law--Second degree murder--Jury instructions--Trial court's error in giving faulty instruction on manslaughter by act as lesser included offense was harmless where manslaughter was two steps removed from second degree murder conviction due to inclusion of third degree felony murder charge in jury instructions and on verdict form.
McFADDEN v. STATE, 130 So.3d 697, 38 Fla. L. Weekly D2333c (Fla. 2DCA 2013). Supreme Court Case No. SC14-93 (McFadden v. State). Order dated June 9, 2014. No oral argument. Criminal law--Sentencing--Reduction or suspension--Trial court did not err in denying state's motion filed pursuant to section 921.186, Florida Statutes, to reduce or suspend defendant's sentence for providing substantial assistance--Appeals--Appellate court has jurisdiction to review trial court order denying motion filed pursuant to section 921.186 where the defendant alleges that the trial court misapplied the statute--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.
MILES v. WEINGRAD, 103 So.3d 259, 38 Fla. L. Weekly D40b (Fla. 3DCA 2013). Supreme Court Case No. SC13-54 (Miles v. Weingrad). Order dated October 15, 2013. Oral argument set by separate order. Affirmed.
MLINAR v. UNITED PARCEL SERVICE, INC., 129 So.3d 406, 38 Fla. L. Weekly D2542a (Fla. 4DCA 2013). Supreme Court Case No. SC14-54 (Mlinar v. United Parcel Service, Inc.). Order dated April 30, 2014. Oral argument set by separate order. Contracts--Torts--Carriers--Federal preemption--Action against carrier by shipper whose valuable oil paintings she had created were not delivered to destination by carrier, but were sold by carrier to its lost goods contractor and eventually auctioned--Trial court properly found that claims against carrier were preempted by federal Carmack Amendment--Claims are excepted from Carmack Amendment only if the claims are based on conduct separate and distinct from the delivery, loss of, or damage to goods--Claim against carrier for conversion is preempted because it is predicated on failure to deliver goods--Claim of unauthorized use of plaintiff's name and likeness in resale of paintings is preempted because it is directly related to carrier's course of conduct in failing to deliver the paintings--Claims of fraud and deceptive and unfair trade practices are so closely related to the performance of the shipping contract that they are preempted--Conflict certified.
MONROE v. STATE, __ So.3d __, 39 Fla. L. Weekly D2234c (Fla. 1DCA 2014). Supreme Court Case No. SC14-2296 (Monroe v. State). Order dated December 17, 2014. Oral argument set by separate order. Criminal law--Sexual battery on child under 12 years of age by defendant 18 years of age or older--Lewd or lascivious molestation of child under 12 years of age by defendant 18 years of age or older--Evidence--Statements of defendant--Trial court did not err in denying motion to suppress statements made to investigator during interrogation at which defendant was not read Miranda rights where defendant was not in custody at time of interrogation--Defendant was not in custody where interview took place in an unlocked conference room on a college campus, defendant was escorted into room by his football coach rather than a law enforcement officer, investigator did not use coercive measures to elicit information, and defendant was repeatedly told that he was free to leave the room at any time--Fact that investigator already had a warrant for defendant's arrest did not conclusively establish that defendant was in custody--Appeals--Claim that evidence was insufficient to prove that defendant was 18 years of age or older at time of offense was not properly preserved for appellate review and did not rise to level of fundamental error--Failure to prove that defendant committed charged offense did not constitute fundamental error where evidence was sufficient to prove that defendant committed a lesser included offense--Question certified: Do F.B v. State, 852 So. 2d 226 (Fla. 2003), and Young v. State, 141 So. 3d 161 (Fla. 2013), require preservation of an evidentiary deficiency where the state proved only a lesser included offense and the sentence required for the greater offense would be unconstitutional as applied to the lesser offense?
MOORE v. STATE, 114 So.3d 486, 38 Fla. L. Weekly D1263a (Fla. 1DCA 2013). Supreme Court Case No. SC13-1236 (State v. Moore). Order dated December 16, 2014. Oral argument set by separate order. Criminal law--Second degree murder--Jury instructions--Trial court erred in instructing jury that in order to find defendant guilty of lesser included offense of manslaughter it must find that defendant intentionally caused the death of the victim, but the error was waived where defense counsel specifically requested the erroneous language from the standard jury instruction--Trial court erred when it failed to instruct jury that defendant could not be guilty of manslaughter if the killing was either justifiable or excusable homicide--Error was not waived where defense counsel did not affirmatively agree to an instruction that he was aware was incomplete--Questions certified: In order for counsel to waive an error in a jury instruction that would otherwise be fundamental, is it only necessary that counsel affirmatively agree to the instruction, or is it also necessary for counsel to affirmatively agree to the portion of the instruction that is error and/or to be aware that the instruction is erroneous?--When a defendant is convicted of either manslaughter or a greater offense not more than one step removed, does the failure to instruct the jury on justifiable or excusable homicide constitute fundamental error not subject to harmless error analysis even where the record reflects there was no dispute as to this issue and there was no evidence presented from which the jury could find justifiable or excusable homicide?
NOEL v. STATE, 127 So.3d 769, 38 Fla. L. Weekly D2494a (Fla. 4DCA 2013). Supreme Court Case Nos. SC14-274 and SC14-1952 (Noel v. State). Order dated December 5, 2014. No oral argument. Criminal law--Racketeering--Conspiracy--Grand theft--Convictions arising out of scheme to steal advance fees from victims who sought to obtain funding for business projects--Sentencing--Sentence of ten years in prison followed by 10 years' probation, with provision that if defendant made restitution of $20,000 within 60 days, his prison sentence would be mitigated to 8 years, did not give rise to any constitutional violation--When deciding sentence to initially impose, sentencing judge may consider entire background of defendant, including employment history, financial resources, and ability to make restitution--Constitution does not preclude judge from actively using sentencing process to encourage payment of restitution to victims of crimes, nor does it prevent judge from showing mercy by reducing severity of a previously imposed sentence--Court recedes from opinion entered in case of one of defendant's co-conspirators in which court held that trial court violated defendant's equal protection rights by proposing to consider reduction in prison sentence if he paid specified restitution within sixty days of sentencing hearing--Conflict certified.
NORVIL v. STATE, __ So.3d __, 39 Fla. L. Weekly D520a (Fla. 4DCA 2014). Supreme Court Case No. SC14-746 (Norvil v. State). Order dated December 15, 2014. No oral argument. Criminal law--Sentencing--Considerations--Trial court did not err in considering subsequent charge pending against defendant at sentencing--To extent appellate court's prior holding in Seays v. State can be interpreted as prohibiting consideration of subsequent arrests in sentencing, court clarifies that sentencing court may properly consider subsequent arrests and related charges, if relevant, in determining appropriate sentence, although sentencing court must remain mindful that arrests and pending charges are not convictions or findings of guilt--In case at issue, new charge involving burglary of vehicle was relevant to instant sentencing for armed burglary, allegations of criminal conduct were supported by evidence in record, defendant had not been acquitted of the charge that arose from the subsequent arrest, record did not show that trial court placed undue emphasis on subsequent arrest and charge in imposing sentence, and defendant had opportunity to explain or present evidence on issue of his prior and subsequent arrests--Court recedes from prior case law to extent that it is inconsistent with opinion in this case.
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.
ORLANDO/ORANGE COUNTY EXPRESSWAY v. TUSCAN RIDGE, LLC, 137 So.3d 1154, 39 Fla. L. Weekly D713b (Fla. 5DCA 2014). Supreme Court Case No. SC14-1007 (Joseph P. Doerr Trust v. Central Florida Expressway Authority). Order dated July 8, 2014. Oral argument to be set by separate order. Eminent domain--Attorney's fees--Trial court erred in finding that benefits-based statutory fee formula was unconstitutional as applied to instant case because condemning authority engaged in tactics causing excessive litigation--Question certified: In an eminent domain proceeding, when the condemning authority engages in litigation tactics causing excessive litigation and the application of the statutory fee formula results in a fee that compensates the landowner's attorneys at a lower-than-market fee, when measured by the time involved, is the statutory fee deemed unconstitutional as applied, entitling the landowner to pursue a fee under section 73.092(2)?PERDIDO SUN CONDOMINIUM ASSOCIATION, INC. v. CITIZENS PROPERTY INSURANCE CORPORATION, 129 So.3d 1210, 39 Fla. L. Weekly D213a (Fla. 1DCA 2014). Supreme Court Case No. SC14-185 (Citizens Property Ins. Corp. v. Perdido Sun Condominium Assoc., Inc.). Order dated March 26, 2014. Oral argument set by separate order. Insurance--Bad faith failure to settle claim--Citizens Property Insurance Corporation--Trial court erred in dismissing complaint against Citizens Property Insurance Corporation, alleging failure to attempt in good faith to settle claim, on ground that Citizens is immune from suit--Citizens' immunity does not extend to the willful tort of failing to attempt to settle claims in good faith--Conflict certified--Question certified: Whether the immunity of Citizens Property Insurance Corporation, as provided in section 627.351(6)(s), Florida Statutes, shields the corporation from suit under the cause of action created by section 624.155(1)(b), Florida Statutes for not attempting in good faith to settle claims?
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.
PHILIP MORRIS USA, INC. v. HESS, 95 So.3d 254, 37 Fla. L. Weekly D1082a (Fla. 4DCA 2012). Supreme Court Case No. SC12-2153 (Hess v. Philip Morris USA, Inc.). Order dated June 3, 2013. Oral argument to be set by separate order. Wrongful death--Product liability--Tobacco--Engle progeny case--Fraudulent concealment--Limitation of actions--Statute of repose--Trial court did not misapply findings of Engle v. Liggett Group, Inc.--Trial court erred in denying motion for judgment as matter of law on fraudulent concealment claim, upon which punitive damages award was based, where jury found that decedent had relied on defendant's fraudulent statements only before May 5, 1982--In light of jury's finding that defendant did not defraud decedent within twelve years prior to filing of Engle complaint, fraudulent concealment claim and punitive damages award were barred by statute of repose.
PLANK v. STATE, 130 So.3d 289, 39 Fla. L. Weekly D227a (Fla. 1DCA 2014). Supreme Court Case No. SC14-414 (Plank v. State). Order dated April 17, 2014. Oral argument set by separate order. Criminal law--Contempt--Counsel--Trial court did not err in failing to appoint counsel or failing to give opportunity to seek counsel for defendant charged with direct criminal contempt--Defendant does not have right to counsel under Sixth Amendment or Florida Rules of Criminal Procedure when charged with direct criminal contempt--Conflict certified.
POWELL v. STATE, 133 So.3d 594, 39 Fla. L. Weekly D440a (Fla. 1DCA 2014). Supreme Court Case No. SC14-593 (Powell v. State). Order dated June 20, 2014. No oral argument. Criminal law--Sentencing--Separate sentences as habitual violent felony offender and as violent career criminal, although improper, are affirmed because defendant did not object at sentencing or file rule 3.800(b)(2) motion--Questions certified: Notwithstanding Maddox, should an appellate court correct a sentencing error in an Anders case which was not preserved pursuant to the applicable rules of procedure?--If not, what steps should an appellate court follow to carry out the mandates of Anders and Causey in such a case?
PRATT v. WEISS, 92 So.3d 851, 37 Fla. L. Weekly D1079a (Fla. 4DCA 2012). Supreme Court Case No. SC12-1783 (Pratt v. Weiss). Order dated July 18, 2013. No oral argument. Torts--Medical malpractice--Attorney's fees--Proposal for settlement--Validity--Joint proposal--Proposal for settlement filed by two defendants, each of whom "owned, operated, maintained, and controlled" hospital at which plaintiff was treated and against each of which plaintiffs alleged identically worded claims for negligent hiring/retention and vicarious liability for negligence of individual doctors, was not invalid for failing to apportion the offer between the two offerors--Defendants were treated as single entity during litigation--Offer was not ambiguous for requiring release of hospital's agents--Although complaint alleged that doctors were agents of hospital, release specifically stated that acceptance would not release other named defendants--Offer did not require release of future unknown claims, as release restricted future claims to "the injuries and damages alleged" by the plaintiff--No error in awarding attorney's fees based on proposal for settlement.
REED v. STATE, __ So.3d __, 39 Fla. L. Weekly D1672a (Fla. 1DCA 2014). Supreme Court Case No. SC14-1801 (State v. Reed). Order dated October 8, 2014. No oral argument. Criminal law--Sexually violent predators--Civil Commitment--Jurisdiction--Trial court erred in denying defendant's motion to dismiss involuntary civil commitment petition filed against him where defendant was not in lawful custody when commitment process was initiated--Where defendant was sentenced to time served and returned to county jail in order to be processed out, and then released to Florida Civil Commitment Center, defendant was not in lawful custody--Even though defendant obtained an order for immediate release while in lawful custody, state still had to take steps to initiate commitment process before his sentence expired--Question certified: Does a trial court have jurisdiction over a petition filed under the Jimmy Ryce Act against a person who obtains an order for immediate release while in lawful custody where the commitment process is initiated under section 394.9135, Florida Statutes, after the person's sentence expired but before he is actually released?
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. CICCONE, 123 So.3d 604, 38 Fla. L. Weekly D1729a (Fla. 4DCA 2013). Supreme Court Case No. SC13-2415 (R.J. Reynolds Tobacco Company v. Ciccone). Order dated June 13, 2014. Oral argument set by separate order. Wrongful death--Product liability--Tobacco--Engle progeny case--Manifestation of disease for purpose of inclusion in Engle class membership--Trial court did not err in instructing jury that decedent's manifestation of peripheral vascular disease occurred when he had symptoms of the disease, instead of when decedent was on notice of the causal connection between his smoking and the disease--Conflict certified--Trial court did not err in denying defendant's motion for directed verdict on the basis that plaintiff failed to introduce reliable medical evidence demonstrating that decedent experienced symptoms of PVD prior to class membership cutoff date--Trial court erred in allowing plaintiff to recover punitive damages under theory of gross negligence since that cause of action was not pled in original Engle class case and jury found for defense on concealment and conspiracy claims.
ROBERTS v. STATE, __ So. 3d __, 36 Fla. L. Weekly D2584a (Fla. 2DCA 2011). Supreme Court Case No. SC11-2567 (Roberts v. State). Order dated February 29, 2012. Oral argument will be set by separate order. Criminal law--Sentencing--Correction--Habitual violent felony offender--Aggravated battery--Reenactment statute--Effective date--Argument that court was not permitted to use prior aggravated battery as predicate offense to impose HVFO enhancement where aggravated battery was not a statutorily listed predicate offense at the time principal offenses occurred in September 1991 because the biennial rennactment of the 1989 statute attempting to add aggravated battery as a predicate offense contained language stating that reenactment was to take effect upon publication, which occurred after the principal offenses in December 1991--Post conviction court's denial is affirmed where Florida supreme court has specifically stated window for challenging an HVFO sentence predicated on aggravated battery was only open to those whose principal offense dates were before May 2, 1991, the date included in session law that reported that the bill became law without governor's approval--Question certified: Does the annual or biennial reenactment of Florida Statutes become effective on the date that the bill providing for such reenactment becomes law, with or without the governor's signature, when the legislation includes language that the law shall take effect immediately upon publication?
RODRIGUEZ v. STATE, 129 So.3d 1135, 39 Fla. L. Weekly D34a (Fla. 3DCA 2014). Supreme Court Case No. SC14-160 (Rodriguez v. State). Order dated May 22, 2014. Oral argument set by separate order. Criminal law--Search and seizure--Residence--Inevitable discovery--Trial court properly denied motion to suppress, based on inevitable discovery doctrine, where bail bondsmen located grow operation while searching defendant's home in an attempt to locate their client and notified police of grow operation, and officers arrived and searched home based on probable cause, which defendant acknowledges existed, and on verbal and signed consent that trial court determined were coerced, but the search was conducted before the process of obtaining a warrant was initiated--Facts provided by bondsmen triggered the police investigation and assured that inculpatory evidence would have been found--Inevitable discovery exception to exclusionary rule does not require that police be in the actual process of seeking a warrant when a nonconsensual search occurs.
ROUGHTON v. STATE, 92 So.3d 284, 37 Fla. L. Weekly D1662a (Fla. 5DCA 2012). Supreme Court Case No. SC12-1719 (Roughton v. State). Order dated April 18, 2013. Oral argument to be set by separate order. Criminal law--Double jeopardy--Separate convictions for sexual battery on victim under twelve years of age and lewd or lascivious molestation of victim under twelve years of age arising out of the same act do not violate double jeopardy--Conflict certified.
RUBLE v. RINKER MATERIALS CORP., 59 So. 3d 137, 36 Fla. L. Weekly D237a (Fla. 3DCA 2011). Supreme Court Case No. SC11-1173 (Ruble v. Rinker Materials Corp.). Order dated April 12, 2012. Oral argument set for June 5, 2012. Wrongful death--Abatement or extinguishment of personal injury action upon death of plaintiff.
SAFECO INSURANCE COMPANY OF ILLINOIS v. FRIDMAN, 117 So.3d 16, 38 Fla. L. Weekly D1159c (Fla. 5DCA 2013). Supreme Court Case No. SC13-1607 (Fridman v. Safeco Insurance Company of Illinois). Order dated April 14, 2014. Oral argument set by separate order. Insurance--Underinsured motorist--Bad faith--Where insurer refused to pay on uninsured/underinsured motorist (UM) claim to its insured, insured filed Civil Remedy Notice alleging bad faith, then filed one-count complaint seeking damages under insurance policy, and shortly before trial insurer tendered a check to insured for the policy limits and filed confession of judgment and motion for entry of confession of judgment, which trial court denied, resulting in jury trial with determination of $1 million in damages, entry of judgment in favor of plaintiff for policy limits, and reservation of jurisdiction to determine insured's right to seek and litigate bad faith damages, trial court was in error to require the parties to proceed to trial and should instead have merely entered the confessed judgment in favor of insured, reserving jurisdiction to award only costs, interest and reasonable attorney's fees--When insurer agreed to entry of judgment against it in the amount of policy limits, the issues between the parties as framed by the pleadings became moot--No merit to insured's claim that entry of confessed judgment renders remedies for insurer's failure to act in good faith "impotent and obsolete"--There is no legal impediment to insured's pursuing bad faith action against insurer--An insured is not required to obtain a jury verdict in excess of the applicable UM coverage as condition precedent to bringing first party bad faith action.
SCHMIDT v. VAN, 65 So. 3d 1105, 36 Fla. L. Weekly D1425a (Fla. 1DCA 2011). Supreme Court Case No. SC11-1467 (Van v. Schmidt). Order dated March 23, 2012. Oral argument set for November 7, 2012. Torts--Automobile accident--New trial--Trial court abused discretion in awarding plaintiff new trial upon determining that jury verdict for defendant, finding that plaintiff had not suffered an injury as result of automobile accident, was against manifest weight of evidence--Trial court erroneously concluded that jury could not reject testimony of expert medical witnesses who opined that plaintiff's injury and resulting surgery was caused, at least in part, by automobile accident, despite conflicting lay testimony--Jury may reject expert testimony, so long as rejection is based on some reasonable basis in the evidence, and conflicting lay testimony and evidence in this case provided a reasonable basis for rejecting expert testimony.
SHELLEY v. STATE, 134 So.3d 1138, 39 Fla. L. Weekly D578b (Fla. 2DCA 2014). Supreme Court Case No. SC14-755 (State v. Shelley). Order dated July 1, 2014. Oral argument to be set by separate order. Criminal law--Use of computer services to solicit parent or legal guardian of child to consent to participation of child in sexual conduct--Traveling to meet minor after using computer services to solicit consent of parent or legal guardian--Double jeopardy--Separate convictions for soliciting and traveling in the course of one criminal transaction violate prohibition against double jeopardy because the soliciting offense is subsumed by the traveling offense--Conflict certified.
SOFFER v. R.J. REYNOLDS TOBACCO COMPANY, 106 So.3d 456, 37 Fla. L. Weekly D2498a; 106 So.3d 465, 38 Fla. L. Weekly D83b (Fla. 1DCA 2012, 2013) (Soffer v. R.J. Reynolds Tobacco Company). Order dated February 28, 2014. Oral argument set by separate order. Wrongful death--Product liability--Tobacco--Punitive damages--Plaintiff who is member of class in Engle v. Liggett Group, Inc. is not entitled to seek punitive damages for negligence and strict liability counts--Because lead plaintiffs in Engle did not timely assert claims for punitive damages as to negligence and strict liability counts, the claims were barred by the statute of limitations, and they are unavailable to Engle progeny plaintiffs--Question certified: Are members of the class in Engle v. Liggett Group, Inc., 945 So 2d 1246 (Fla. 2006) entitled to pursue an award of punitive damages under theories of negligence or strict liability?
STATE v. BROWN, 77 So.3d 693, 36 Fla. L. Weekly D2438b (Fla. 3DCA 2011). Supreme Court Case No. SC11-2470 (Brown v. State). Order dated October 25, 2012. No oral argument. Criminal law--Second degree murder--Attempted murder--Armed robbery--New trial--Trial court erred in granting new trial on grounds that verdict was contrary to weight of evidence and that state improperly commented on defendant's right to silence in closing argument--It was within province of jury to weigh the evidence, determine credibility of witnesses and evidence presented and arrive at verdict--Trial court abused discretion in requesting that certain witnesses and parties submit to polygraph examinations where there was no stipulation between the parties and in reviewing the results of the examinations prior to ruling on motion for new trial--Evidence not considered by jury in reaching its verdict could not be relied on by court in determining that verdict was contrary to weight of evidence--Comment in closing argument regarding defendant's refusal to have his statements to police recorded did not constitute an improper comment on defendant's right to silence.
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. DEBAUN, 129 So.3d 1089, 38 Fla. L. Weekly D2266a (Fla. 3DCA 2013). Supreme Court Case No. SC13-2336 (Debaun v. State). Order dated April 3, 2014. Oral argument set by separate order. Criminal law--Knowingly having sexual intercourse with another person without informing the other person of positive HIV status--Trial court erred in interpreting "sexual intercourse" as used in statute as meaning only contact between genitals of a man and a woman, and dismissing charges against defendant for having uninformed HIV infected sexual intercourse with another man--"Sexual intercourse" applies to behavior other than contact between the genitals of a man and a woman, including that between two men--Conflict certified.
STATE v. GIL, 68 So. 3d 999, 36 Fla. L. Weekly D1977b (Fla. 3DCA 2011). Supreme Court Case No. SC11-1983 (Gil v. State). Order dated August 16, 2012. Oral argument will be set by separate order. Criminal law--Double jeopardy--Separate convictions for driving while license revoked as habitual traffic offender pursuant to section 322.34(5) and driving with canceled, suspended, or revoked license pursuant to section 322.34(2) do not violate double jeopardy principles.
STATE v. HARRIS, 129 So.3d 1166, 39 Fla. L. Weekly D96a (Fla. 3DCA 2014). Supreme Court Case No. SC14-258 (Harris v. State). No oral argument. Criminal law--Sentencing--Correction--Claim that sentence was illegal because trial court did not orally pronounce the sentence is moot where defendant has completed the sentence--Post conviction court erred in granting relief on claim that sentencing court erred in failing to specifically pronounce violent career criminal sentence where court's intention was discernible from record.STATE v. MIRANDA, 137 So.3d 1133, 39 Fla. L. Weekly D693a (Fla. 3DCA 2014). Supreme Court Case No. SC14-888 (Miranda v. State). Order dated December 17, 2014. Oral argument set by separate order. Criminal law--Competency of defendant--Where examining experts concluded that defendant was incompetent to proceed, and that his incompetence was due to intellectual deficits rather than mental illness, it was error for experts to fail to perform any standardized intelligence tests on defendant to ascertain the nature or extent of his intellectual deficits or whether defendant met statutory definition of retardation--If examining expert concludes that defendant is incompetent to proceed due to a mental illness or an intellectual disability, expert's report is required to identify the mental illness or intellectual disability that is causing the incompetence; recommend the treatment or training needed; and address the likelihood that, with recommended treatment or training, defendant will attain competency in the foreseeable future--Trial court erred by finding defendant incompetent to proceed without holding evidentiary hearing as requested by state to determine whether defendant is competent to proceed; if defendant is incompetent to proceed, whether he meets criteria for involuntary commitment; what treatment or training, if any, defendant needs to attain a level of competency to proceed; how long the treatment or training would take; and what facilities are available to provide the necessary treatment or training--There is no requirement that defendant must be released if he is incompetent to proceed but does not meet the criteria for involuntary commitment under Chapter 916, as Florida Rule of Criminal Procedure 3.212 provides court with other options.
STATE v. PUBLIC DEFENDER, ELEVENTH JUDICIAL CIRCUIT, 12 So.3d 798 (Fla. 3DCA 2009). Supreme Court Case No. SC09-1181 (Public Defender, Eleventh Judicial Circuit of Florida v. State). Order dated May 19, 2010. Oral argument set for June 7, 2012. Criminal law -- Public defenders -- Public defender's motions seeking permission to be relieved of obligation to represent indigent defendants in noncapital felony cases, accompanied by certificate of conflict wherein public defender claimed that underfunding led to excessive caseloads, which had prevented it from carrying out its legal and ethical obligations to indigent defendants -- Circuit court erred in entering order permitting Public Defender for Florida's Eleventh Judicial Circuit to decline representation in all future third-degree felony cases, and ordering Office of Criminal Conflict and Civil Regional Counsel for the Third District to represent affected indigent defendants -- State had standing to oppose public defender's motion -- Only after an assistant public defender proves prejudice or conflict, separate from excessive caseload, may that attorney withdraw from a particular case.
STATE, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES v. WIGGINS, __ So.3d __, 39 Fla. L. Weekly D1894a (Fla. 1DCA 2014). Supreme Court Case No. SC14-2195 (Wiggins v. Florida Department of Highway Safety and Motor Vehicles). Order dated December 17, 2014. Oral argument set by separate order. Administrative law--Department of Highway Safety and Motor Vehicles--Licensing--Driver's license--Appeals--Certiorari--Circuit court, in its appellate capacity, departed from essential requirements of law when it concluded that its independent review and assessment of events on a video of traffic stop trumped hearing officer's factual findings, which were based on arresting officer's testimony and report--Under clearly established legal principle, circuit court applies the "wrong" or "incorrect" law when it reweighs or reevaluates conflicting evidence and decides the merits of the underlying dispute anew--Not applying correct law results in miscarriage of justice--Question certified whether a circuit court fails to apply the correct law by rejecting as non-credible the entirety of an arresting officer's testimony and report concerning a traffic stop, upon which the hearing officer's factual findings relied, based solely on the circuit court's own independent review and assessment of events on the video of a traffic stop.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. JOERG, __ So.3d __, 38 Fla. L. Weekly D1378a (Fla. 2DCA 2013). Supreme Court Case No. SC13-1768 (Joerg v. State Farm Mutual Automobile Insurance Company). Order dated July 11, 2014. Oral argument set by separate order. Insurance--Uninsured motorist--Damages--Future medical expenses--Collateral source benefits--Medicare benefits of developmentally disabled adult plaintiff--Trial court erred in excluding from jury evidence of plaintiff's receipt of medical services under Medicare program for purpose of determining future medical expenses--Because there is no evidence that plaintiff contributed to the financing of the Medicare program, the program's benefits are unearned and not subject to exclusion under the collateral source rule.
TUTTLE v. STATE, 137 So.3d 393, 39 Fla. L. Weekly D321a (Fla. 2DCA 2014). Supreme Court Case No. SC14-817 (State v. Tuttle). Order dated July 3, 2014. No oral argument. Criminal law--Armed burglary--Separate convictions for attempted home invasion robbery and armed burglary violated double jeopardy--Applying test set forth by supreme court in Pizzo v. State, burglary was lesser offense, and burglary conviction should be vacated on remand--Trial court improperly found home invasion robbery to be the lesser offense by comparing punishments for the two offenses rather than their statutory elements.UCF ATHLETICS ASSOCIATION, INC. v. PLANCHER, 121 So.3d 1097, 38 Fla. L. Weekly D1756a (Fla. 5DCA 2013). Supreme Court Case No. SC13-1872 (Plancher v. UCF Athletics Association, Inc.). UCF ATHLETICS ASSOCIATION, INC. v. PLANCHER, 121 So.3d 616, 38 Fla. L. Weekly D1763a (Fla. 5DCA 2013). Supreme Court Case No. SC13-1874 (Plancher v. UCF Athletics Association, Inc.). Order dated August 13, 2014. No oral argument. Wrongful death--State universities--Releases--Sovereign immunity--Action against state university Athletics Association by parents of university football player who collapsed and died during football practice after participating in series of conditioning drills--Trial court did not err in denying defendant's motion for summary judgment based on exculpatory clause of Medical Examination and Authorization Waiver signed by decedent--Exculpatory clause was ambiguous where it did not inform decedent that he would be contracting away his right to sue defendant for its own negligence, and language of clause could have led decedent to believe that defendant would be supervising his training in a non-negligent manner--Trial court erred in denying defendant's motion for partial summary judgment based on sovereign immunity--Because defendant Athletic Association functions primarily as an instrumentality of state university, it is entitled to limited sovereign immunity--Attorney's fees--Offer of judgment--Although verdict for plaintiff in wrongful death action awarded damages of $10 million, an amount at least 25 percent more than plaintiff's demand for judgment, plaintiff is not entitled to award of attorney's fees where appellate court held that defendant was entitled to limited sovereign immunity and ordered judgment reduced to $200,000, an amount which is less than the demand for judgment--The judgment obtained, rather than the verdict, controls whether fees can be awarded.
UNION CARBIDE CORPORATION v. AUBIN, 97 So.3d 886, 37 Fla. L. Weekly D2018c (Fla. 3DCA 2012). Supreme Court Case No. SC12-2075 (Aubin v. Union Carbide Corporation). Order dated April 18, 2013. Oral argument to be set by separate order. Torts--Product liability--Asbestos--Action against defendant which manufactured SG-210, a particular grade of chrysotile asbestos which was used by intermediary manufacturers in joint compounds and ceiling textures, by plaintiff who contracted peritoneal mesothelioma after being exposed to the products during home construction--Trial court erred in finding that claims are governed by Second Restatement of Torts rather then Third Restatement--Court has adopted component parts doctrine articulated in Section 5 of Third Restatement as governing law for products liability claims arising out of a defendant's sale of a component part to a manufacturer who then incorporates the component into its own product--Design defect--Although there was sufficient evidence to conclude that product was a designed product and that design was defective, trial court erred in denying defendant's motion for directed verdict on design defect claim where there was no evidence suggesting that product's design caused plaintiff's mesothelioma--Warning defect--Trial court did not err by denying defendant's motion for directed verdict on warning defect claim where there was sufficient evidence to create factual issue regarding whether, based on the foreseeable risks of harm posed by product, defendant discharged its duty to warn end-users by adequately warning intermediary manufacturers, and reasonably relying on them to warn end-users--Jury instructions--Trial court erred in instructing jury that defendant had duty to warn end-users without also informing jury that defendant could have discharged its duty by adequately warning intermediary manufacturers and reasonably relying on them to warn end-users.
U.S. BANK NATIONAL ASSOCIATION v. BARTRAM, __ So.3d __, 39 Fla. L. Weekly D871d (Fla. 5DCA 2014). Supreme Court Case Nos. SC14-1265, SC14-1266, SC14-1305 (Bartram v. U.S. Bank National Association; The Plantation at Ponte Vedra v. U.S. Bank National Association). Order dated September 11, 2014. Oral argument set by separate order. Mortgage foreclosure--Limitation of actions--Acceleration of payments due under a note and mortgage in a foreclosure action that was dismissed for failure of mortgagee to appear at case management conference does not trigger application of statute of limitations to prevent a subsequent foreclosure action by the mortgagee based on payment defaults occurring subsequent to the first foreclosure suit--Question certified.
VILLANUEVA v. STATE, 118 So.3d 999, 38 Fla. L. Weekly D1783a (Fla. 3DCA 2013). Supreme Court Case No. SC13-1828 (Villanueva v. State). Order dated January 14, 2014. No oral argument. Criminal law--Probation--Conditions--Trial court had authority to impose as a special condition of probation for offense of misdemeanor battery that defendant undergo sex offender therapy where facts in record indicate that the non-consensual physical contact underlying the battery involved the touching of a juvenile female's breasts and buttocks--Sex offender therapy as a condition of probation is not restricted to statutorily enumerated sexual offenses--In imposing sex offender therapy as a condition of probation, court is not limited to considering only the face of the conviction, but may also consider the facts underlying the conviction--Scrivener's error in probation order to be corrected--Written sentencing order to be corrected to conform to oral pronouncements.
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.
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, __ So.3d __, 36 Fla. L. Weekly D1571a (Fla. 2DCA 2011). Supreme Court Case No. SC11-1543 (Williams v. State). Order dated September 22, 2011. Oral argument set for March 6, 2012. Criminal law--Grand theft--Dealing in stolen property--Separate convictions arising out of one scheme or course of conduct--Trial court did not err in failing to instruct jury, in accordance with section 812.025, Florida Statutes (2008), that jury could return a verdict on offense of grand theft or offense of dealing in stolen property, but not on both offenses--Trial court properly dismissed charge of third-degree grand theft after jury had returned verdict of guilty on both grand theft and dealing in stolen property charges--Conflict recognized--Questions certified: 1. Must the trial court instruct the jury to perform the selection process described in section 812.025 of the Florida Statutes? 2. If so, must the appellate court order a new trial on both offenses if the trial court fails to give the instruction? 3. If the appellate court is not required to mandate a new trial, must it require the trial court to select the greater offense or the lesser offense when the two offenses are offenses of different degrees or of different severity ranking?
WILLIAMS v. STATE, __ So.3d __, 38 Fla. L. Weekly D912a (Fla. 4DCA 2013). Supreme Court Case No. SC13-1080 (Williams v. State). Order dated July 16, 2013. Oral argument set by separate order. Criminal law--Sentencing--Aggravated assault with firearm--Consecutive sentences--Single criminal episode--Trial court did not err in finding it was statutorily required to impose consecutive sentences for multiple convictions arising from single criminal episode--Question certified: Does section 775.087(2)(d)'s statement that "The court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense" require consecutive sentences when the sentences arise from one criminal episode?