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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.
1108 ARIOLA, LLC v. JONES, 71 So. 3d 892, 36 Fla. L. Weekly D1537a (Fla. 1DCA 2011). Supreme Court Case No. SC11-2231 (1108 Ariola, LLC v. Jones). Order dated February 29, 2012. No oral argument. Taxation--Ad valorem--Leasehold improvements--Trial court properly determined that leaseholders were equitable owners and subject to ad valorem taxes on their leasehold improvements--Court bound by stare decisis to follow its precedent in Ward v. Brown, although leaseholders in instant case do not have the right to perpetual lease renewals and legal title to improvements is vested in county, factors which distinguished instant case from Ward--Declaratory and injunctive relief--Injunction enjoining tax collector from creating any liens for taxes on leasehold estates or improvements thereon or from selling any tax certificates to collect any real property taxes assessed on the leasehold estates or on the improvements was premature as there does not yet exist a bona fide need for such a declaration.
ACCARDO v. BROWN, 63 So. 3d 798, 36 Fla. L. Weekly D856a (Fla. 1DCA 2011). Supreme Court Case No. SC11-1445 (Accardo v. Brown). Order dated February 29, 2012. No oral argument. Taxation--Ad valorem--Leasehold interests--Trial court properly found that those having leasehold interests in various properties located on Navarre Beach were equitable owners of the real property and any improvements thereon and were subject to ad valorem property taxes--Lessees hold virtually all benefits and burdens of ownership of the leased property--Statute providing that leasehold or other interest shall be taxed only as intangible personal property if rental payments are due in consideration of such leasehold does not apply given finding that plaintiffs are equitable owners--Question certified whether section 196.199(2)(b) is inapplicable to the real property at issue because appellants are the equitable owners of that property?
ADVANCED CHIROPRACTIC AND REHABILITATION CENTER CORPORATION v. UNITED AUTOMOBILE INSURANCE COMPANY, 103 So.3d 869, 38 Fla. L. Weekly D10a (Fla. 4DCA 2013). Supreme Court Case No. SC13-153 (Advanced Chiropractic and Rehabilitation v. United Automobile Insurance Company). Order dated June 4, 2013. No oral argument. Attorney's fees--Appellate--Second-tier certiorari proceedings--Where petition for writ of certiorari and reply did not seek attorney's fees for proceeding in district court, motion for appellate fees is untimely and is denied--Consistent with notice principles central to controlling precedent, which requires that claim for attorney's fees must be pled, "pleadings" in a rule 9.100 proceeding are the petition, response, and reply, and a request for attorney's fees must be included in one of them.
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.
ANUCINSKI v. STATE, 90 So.3d 879, 37 Fla. L. Weekly D1365a (Fla. 2DCA 2012). Supreme Court Case No. SC12-1281 (Anucinski v. State). Order dated March 7, 2013. No oral argument. Criminal law--Grand theft--Dealing in stolen property--Trial court erred in adjudicating defendant guilty of both third-degree grand theft and second-degree dealing in stolen property where defendant's theft and pawning of a ring on the same day were part of a single scheme or course of conduct--Remand with instructions to vacate grand theft conviction, the lesser of the two offenses--Discussion of proper remedy in light of certain language in supreme court's decision in Hall v. State suggesting some level of discretion in deciding which conviction to vacate upon remand.
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?
BASILE v. ALDRICH, 70 So.3d 682, 36 Fla. L. Weekly D1868a (Fla. 1DCA 2011). Supreme Court Case No. SC11-2147 (Aldrich v. Basile). Order dated June 28, 2012. Oral argument to be set by separate order. Estates--Wills--After-acquired property--Where a will fails to dispose of all of a decedent's property, "partial intestacy" results, and property owned by testator at time of her death which was not disposed of by her will passes to her heirs in the manner prescribed by sections 732.101-.11, Florida Statutes (2009)--Question certified whether section 732.6005, Florida Statutes (2004), requires construing a will as disposing of property not named or in any way described in the will, despite the absence of any residuary clause, or any other clause disposing of the property, where the decedent acquired the property in question after the will was executed?
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.
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.
BOARD OF TRUSTEES OF CITY PENSION FUND FOR FIREFIGHTERS AND POLICE OFFICERS IN THE CITY OF TAMPA v. PARKER, __ So.3d __, 38 Fla. L. Weekly D757a (Fla. 2DCA 2013). Supreme Court Case No. SC13-890 (Parker v. Board of Trustees of The City Pension Fund). Order dated June 3, 2013. Oral argument to be set by separate order. Attorney's fees--Municipal corporations--Award of fees to retired firefighter who was representative of class of retired firefighters and police officers in action challenging decision of Board of Trustees of City Pension Fund for Firefighters and Police Officers not to issue supplemental benefit, a 13th check, to retirees pursuant to special law governing city's pension funds with firefighters and police officers--Trial court erred in awarding attorney's fees pursuant to general laws relating to firefighter and police pensions throughout state and in finding that substantial benefit doctrine governs fee award--Fees are properly awarded under common fund doctrine--Question certified: Are the prevailing party attorney's fees provisions of sections 175.061(5) and 185.05(5), Florida Statutes, applicable to judicial proceedings to enforce claims under local laws plans or special acts.
BOWEN v. TAYLOR-CHRISTENSEN, 98 So.3d 136, 37 Fla. L. Weekly D2094a (Fla. 5DCA 2012). Supreme Court Case No. SC12-2078 (Christensen v. Bowen). Order dated December 11, 2012. Oral argument will be set by separate order. Wrongful death--Automobile accident--Vicarious liability--Dangerous instrumentality doctrine--Beneficial ownership--Action arising out of death of plaintiff's husband resulting from defendant's ex-wife's negligent operation of a vehicle that defendant gave to his ex-wife as a gift, but which was titled in names of both defendant and ex-wife--Because, as a matter of law, defendant had an identifiable property interest in vehicle at time of collision, trial court erred in denying plaintiff's motion for directed verdict--Documents executed upon purchase of vehicle evince, at most, an intent to gift a co-ownership of vehicle--Question certified: May a person who intentionally directs that title be issued in his name as co-owner, by completing a sworn application for title in conjunction with the purchase of a vehicle, avoid liability under the dangerous instrumentality doctrine by claiming that he never intended to be the owner of the vehicle and further claiming that he relinquished control to a co-owner of the vehicle?
BROIN v. PHILLIP MORRIS COMPANIES, INC., 84 So.3d 1107, 37 Fla. L. Weekly D702a (Fla. 3DCA 2012). Supreme Court Case No. SC12-988 (Young v. Achenbauch). Order dated January 28, 2013. Oral argument to be set by separate order. Attorneys--Disqualification--Conflict of interest--Class actions--Where class consisting of flight attendants brought action against tobacco companies based on exposure to second hand smoke in airline cabins, case was set to be tried in two stages, with first stage to decide common questions and second stage to determine each plaintiff's damages, parties entered into settlement agreement during first stage whereby tobacco companies, in exchange for plaintiffs' waiver of intentional tort and punitive damages claims, agreed to establish a settlement fund to endow a foundation to sponsor scientific research, and attorneys for flight attendants subsequently filed petition against the foundation, which included two flight attendant board members, seeking enforcement of the settlement agreement, accounting of settlement funds, injunction against further expenditures, and order directing distribution of settlement funds to flight attendants, trial court departed from essential requirements of law in disqualifying counsel for flight attendants on basis of conflict of interest--In context of a class action, before disqualifying a class member's attorney on the motion of another class member, the court should balance the actual prejudice to the objector with his or her opponent's interest in continued representation by experienced counsel.
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.
CHERISMA v. STATE, 86 So.3d 1195, 37 Fla. L. Weekly D1050a (Fla. 3DCA 2012). Supreme Court Case No. SC12-1068 (Cherisma v. State). Order dated March 7, 2013. No oral argument. Criminal law--Evidence--Bolstering of witnesses--No error in allowing officer to testify that he would have arrested defendant despite inconsistencies between victim's initial and subsequent account of the details where testimony was elicited in rebuttal to defense's suggestion that victim was unreliable, and responses did not amount to vouching for victim's credibility or the truthfulness of his testimony--Appeals--General objection to questioning of officer in response to defense questions regarding objectivity of photo line up used to identify defendant was not specific enough to preserve issue for appeal.
CITY OF AVENTURA v. MASONE, 89 So. 3d 233, 36 Fla. L. Weekly D2591a (Fla. 3DCA 2011). Supreme Court Case No. SC12-644 (Masone v. City of Aventura). Order dated November 6, 2012. Oral argument will be set by separate order. Municipal corporations--Ordinances--Traffic infractions--Red light cameras--Trial court erred in finding that ordinance which allows the issuance of notices of violations for red light infractions on basis of red light cameras is preempted by and in conflict with state law.
CITY OF ORLANDO v. UDOWYCHENKO, __ So. 3d __, 37 Fla. L. Weekly D1608a (Fla. 5DCA 2012). Supreme Court Case No. SC12-1471 (City of Orlando v. Udowychenko). Order dated November 6, 2012. Oral argument will be set by separate order. Municipal corporations--Ordinances--State preemption--Red light cameras--Trial court did not err in invalidating city's red light camera ordinance as preempted by state law--Legislature has mandated that drivers stop at red light signals and has provided mechanism to enforce that mandate, and imposition of separate and additional penalties for running a red light in a particular municipality does not fall within the specific authority of section 316.008(1)(w)--Conflict certified.
CLIPPER BAY INVESTMENTS, LLC. v. STATE, DEPARTMENT OF TRANSPORTATION, __ So.3d __, 38 Fla. L. Weekly D271a (Fla. 1DCA 2013). Supreme Court Case No. SC13-775 (Florida Department of Transportation v. Clipper Bay Investments, LLC.). Order dated July 16, 2013. Oral argument set by separate order. Real property--Quiet title--Marketable Record Title Act--Exception to MRTA for easements and rights-of-way is applicable to rights-of-way held by Florida Department of Transportation in fee--Trial court erred in finding that property outside interstate highway fence line was excepted from MRTA, and in quieting title to the property in FDOT where there was no evidence that property was ever devoted to or required for part of highway right-of-way--Trial court improperly relied on unrecorded right-of-way map kept at FDOT office to create an additional burden on property owner to search for unrecorded property records that predated its root of title.
COTTO v. STATE, 89 So.3d 1025, 37 Fla. L. Weekly D1288b (Fla. 3DCA 2012). Supreme Court Case No. SC12-1277 (Cotto v. State). Order dated April 17, 2013. No oral argument. Criminal law--Sentencing--Prison releasee reoffender--Habitual offender--Trial court's imposition of habitual offender sentence consecutively to prison releasee reoffender sentence does not run afoul of Florida Supreme Court precedent in Hale v. State because sentences imposed pursuant to the criminal punishment code, three-time violent felony offender statute, and prison releasee reoffender statute are not enhanced sentences within the meaning of Hale--Conflict certified.
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.
DAVIS FAMILY DAY CARE HOME v. DEPARTMENT OF CHILDREN AND FAMILIES, 117 So.3d 464, 38 Fla. L. Weekly D1542b (Fla. 2DCA 2013). Supreme Court Case No. SC13-1668 (Florida Department of Children and Families v. Davis Family Day Care Home). Order dated October 24, 2013. No oral argument. Administrative law--Department of Children and Family Services--Licensing--Appeal from order granting renewal application of family day care license on probationary basis and denying initial application for large family child care home license--Department of Children and Family Services erroneously rejected administrative law judge's conclusion that agency was required to prove allegations set forth in its administrative complaint by clear and convincing evidence--Supreme court case on which agency relied does not stand for proposition that competent substantial evidence standard is applicable as evidentiary standard in hearing conducted in accordance with section 120.57--Conflict certified--Because agency, in its self-proclaimed administrative complaint, determined the proceedings to be disciplinary in nature, ALJ was constrained to apply a standard other than the preponderance of the evidence--Provisional license or registration--Section 402.309 clearly contemplates that initial licenses for large family child care homes may be provisional--Agency erred in rejecting ALJ's recommendation that agency enter final order provisionally granting initial application for large family child care home license.
DELVA v. THE CONTINENTAL GROUP, INC., 96 So.3d 956, 37 Fla. L. Weekly D1745d (Fla. 3DCA 2012). Supreme Court Case No. SC12-2315 (Delva v. The Continental Group, Inc.). Order dated May 2, 2013. Oral argument to be set by separate order. Civil rights--Florida Civil Rights Act does not prohibit discrimination in employment on basis of pregnancy--Conflict certified.
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?
DOUGHERTY v. STATE, 96 So.3d 984, 37 Fla. L. Weekly D1913a (Fla. 5DCA 2012). Supreme Court Case No. SC12-2365 (Dougherty v. State). Order dated April 26, 2013. Oral argument to be set by separate order. Criminal law--Competency of defendant--Lack of a written order adjudicating defendant competent does not require reversal and may be cured without the need for a new trial--Defendant's contention that he did not receive a proper competency hearing is without merit where defendant stipulated to written reports finding him competent to proceed at properly scheduled competency hearing.
DRAWDY v. STATE, 98 So.3d 165, 37 Fla. L. Weekly D2112a (Fla. 2DCA 2012). Supreme Court Case No. SC12-2021 (State v. Drawdy). Order dated January 28, 2013. Oral argument to be set by separate order. Criminal law--Double jeopardy--Defendant convicted of sexual battery of a child for the rape of the victim, and lewd or lascivious molestation for the touching of the victim's breast during the sexual battery--Under Blockburger analysis, double jeopardy prohibits conviction for both sexual battery and simultaneous lewd and lascivious molestation as separate offenses--Although sexual battery statute includes an element not included in lewd or lascivious statute, the converse is not true--Conviction and sentence for lewd or lascivious molestation vacated--Conflict certified.
ERP OPERATING LIMITED PARTNERSHIP v. SANDERS, 96 So.3d 929, 37 Fla. L. Weekly D1709c (Fla. 4DCA 2012). Supreme Court Case No. SC12-2416 (Sanders v. ERP Operating Limited Partnership). Order dated August 2, 2013. No oral argument. Wrongful death--Premises liability--Apartment complex--Action against owner of apartment complex where two people were murdered inside their apartment with no evidence of forced entry--Trial court erred in failing to grant defendant a directed verdict on liability where, without proof of how assailants gained entry into the apartment, plaintiff could not prove causation--Although there was evidence to support a breach of duty to provide adequate security, plaintiff could not establish that the breach was proximate cause of the murders.
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.
FALCON v. STATE, __ So.3d __, 38 Fla. L. Weekly D949b (Fla. 1DCA 2013). Supreme Court Case No. SC13-865 (Falcon v. State). Order dated June 3, 2013. Oral argument to be set by separate order. Criminal law--Sentencing--Cruel and/or unusual punishment--Post conviction relief--Trial court properly denied claim of defendant, who was sentenced to mandatory life sentence without parole for murder committed in 1999 when she was 15 years old, that U.S. Supreme Court decision in Miller v. Alabama should be given retroactive effect and that she should be resentenced following an individualized sentencing hearing--Decision in Miller does not apply retroactively to cases on collateral review--Question certified: Whether the rule established in Miller v. Alabama, 132 S. Ct. 2455, 2460 (2012), "that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment," should be given retroactive effect?
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.GARCON v. AGENCY FOR HEALTH CARE ADMINISTRATION, 96 So.3d 472, 37 Fla. L. Weekly D2125b (Fla. 3DCA 2012). Supreme Court Case No. SC12-2406 (Garcon v. Florida Agency for Health Care Administration). Order dated September 17, 2013. Oral argument set by separate order. Administrative law--Medicaid--Liens--Where party who had suffered a gunshot injury which rendered him totally and permanently disabled was paid by Medicaid program for his past medical expenses, and party also received a settlement from a tortfeasor which was stipulated to represent compensation only for past and future medical expenses and nothing for any intangible elements of damage for which Medicaid would not have been entitled to reimbursement, under the provisions of section 409.910, Florida Statutes, the extent of Medicaid's lien on the settlement was the amount already expended by the Medicaid program--Florida statute is not preempted by federal law.
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.
GIVE KIDS THE WORLD, INC. v. SANISLO, 98 So.3d 759, 37 Fla. L. Weekly D2392a (Fla. 5DCA 2012). Supreme Court Case No. SC12-2409 (Sanislo v. Give Kids the World, Inc.). Order dated June 3, 2013. Oral argument to be set by separate order. Torts--Negligence--Releases--Contracts--Exculpatory clause--Action against non-profit organization that provides free "storybook" vacations to seriously ill children and their families at resort village, seeking to recover for injuries sustained by child's mother when pneumatic wheelchair lift on which mother and husband were posing for photograph collapsed because weight limit had been exceeded--Language of release signed by parties clearly and unambiguously released defendant from liability for the physical injuries sustained during plaintiffs' stay at defendant's resort and was sufficiently clear to make plaintiffs aware of the scope of the release and what rights they were contracting away, although there was no express reference to negligence in release--Conflict certified--Disparity in bargaining power was not an issue under circumstances of instant case.
GRIDINE v. STATE, 89 So. 3d 909 (37 Fla. L. Weekly D69c ) and 93 So.3d 360 (37 Fla. L. Weekly D1264a ) (Fla. 1DCA 2012). Supreme Court Case No. SC12-1223 (Gridine v. State). Order dated October 11, 2012. Oral argument will be set by separate order. Criminal law--Sentencing--Holding of United States Supreme Court in Graham v. Florida that the Eighth Amendment prohibits life sentences without the possibility of parole for juveniles convicted of nonhomicide crimes does not prohibit imposition of seventy-year sentence on juvenile defendant convicted of attempted first-degree murder--Seventy-year sentence is not the functional equivalent of a natural life sentence without the possibility of parole.
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.
HENRY v. STATE, 82 So. 3d 1084, 37 Fla. L. Weekly D195a (Fla. 5DCA 2012). Supreme Court Case No. SC12-578 (Henry v. State). Order dated November 6, 2012. Oral argument will be set by separate order. Criminal law--Sentencing--Cruel and/or unusual punishment--Claim that aggregate term-of-years sentences for nonhomicide crimes, committed while defendant was a juvenile, operated as de facto life sentence in violation of Graham v. Florida and the Eighth Amendment--While there is language in Graham that suggests that no matter the number of offenses or victims, a juvenile may not receive a sentence that will cause him to spend his entire life incarcerated, Graham offers no direction whatsoever on how to proceed under the notion that term-of-years sentence can be a de facto life sentence--Defendant's aggregate term-of-years sentence is not invalid under the Eighth Amendment.
HIALEAH AUTOMOTIVE, LLC v. BASULTO, __ So.3d __, 34 Fla. L. Weekly D2502a, 34 Fla. L. Weekly D2505a (clarified). (Fla. 3DCA 2009). Supreme Court Case No. SC09-2358 (Basulto v. Hialeah Automotive, LLC). Order dated January 9, 2013. Oral argument to be set by separate order. Contracts--Arbitration--Action against automobile dealership alleging fraud in the inducement and violation of Florida Deceptive and Unfair Trade Practices Act--Trial court properly found that separate arbitration agreement was unconscionable--Agreement was procedurally unconscionable where it was written in English, and defendant's personnel undertook to explain agreement to plaintiffs in Spanish but did not do so accurately--Trial court properly found that agreement was substantively unconscionable because it contained a waiver of right to seek punitive damages--Although ban on punitive damages is severable from remainder of agreement, agreement is also substantively unconscionable as impermissibly one-sided because it permits dealer to resort to court action to obtain monetary relief against customer in excess of $5000 small claims limit while customer has no corresponding right to go to court to seek monetary relief over $5000 against dealer--Arbitration clause in retail installment contract is not enforceable as to claims for declaratory and injunctive relief because arbitration clause states that arbitration award shall be issued without a written opinion, and award of declaratory and injunctive relief cannot be accomplished without a written opinion--Arbitration clause in retail installment contract is enforceable with respect to claims for monetary relief.
HORSLEY v. STATE, 121 So.3d 1130, 38 Fla. L. Weekly D1862a (Fla. 5DCA 2013). Supreme Court Case Nos. SC13-1938 and SC13-2000 (Horsley v. State, State v. Horsley). Order dated November 14, 2013. Oral argument set by separate order. Criminal law--Sentencing--Murder committed by juvenile--The only sentence now available in Florida for a charge of capital murder committed by a juvenile is life with the possibility of parole after twenty-five years--Question certified: Whether the Supreme Court's decision in Miller v. Alabama, __ U.S. __, 132 S.Ct. 2455, 183 L.Ed. 2d 407 (2012), which invalidated section 775.082(1)'s mandatory imposition of life without parole sentences for juveniles convicted of first-degree murder, operates to revive the prior sentence of life with parole eligibility after 25 years previously contained in that statute?
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.
JORDAN v. STATE, 83 So. 3d 910, 37 Fla. L. Weekly D508a (Fla. 3DCA 2012). Supreme Court Case No. SC12-854 (Jordan v. State). Order dated September 25, 2012. No oral argument. Criminal law--Sentencing--Correction--Resentencing after order granting motion to correct illegal sentence--Presence of defendant--Resentencing of defendant without a hearing is affirmed because the resentencing was only ministerial act, not requiring that the defendant be present, since it was for a concurrent offense where the defendant was serving a sentence of equal or greater length on another conviction--Although Florida Supreme Court abrogated this "concurrent sentence doctrine" in 1970, the grounds were that defendant's presence at resentencing could improve his parole opportunities, and since Florida has abolished the parole system, those grounds no longer exist.
JUPITER MEDICAL CENTER v. VISITING NURSE ASSOCIATION OF FLORIDA, INC., 72 So.3d 184, 36 Fla. L. Weekly D2030c (Fla. 4DCA 2011). Supreme Court Case No. SC11-2468 (Visiting Nurses Association of Florida, Inc. v. Jupiter Medical Center). Order Dated September 27, 2012. Oral argument to be set by separate order. Arbitration--Contracts--Legality of contract--Trial court erred by ordering enforcement of arbitral award without first considering the contract's legality--Where the issue of a contract's legality is raised, trial court must make that determination prior to deciding whether to enforce arbitral award based thereon--Although arbitration statute does not include illegality as a circumstance under which a court will vacate an arbitral award, where an arbitral award is based on the breach of a contract that is found to be illegal, a prior arbitration does not prevent the trial court from vacating the award--No merit to argument that appellant waived the defense of illegality where the issue was raised with arbitration panel and at several stages thereafter.
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.
LEFTWICH v. FLORIDA DEPARTMENT OF CORRECTIONS, 101 So.3d 404, 37 Fla. L. Weekly D2691d (Fla. 1DCA 2012). Supreme Court Case No. SC12-2669 (Leftwich v. Florida Department of Corrections). Order dated July 23, 2013. No oral argument. Criminal law--Prisoners--Provisional credits--Circuit court correctly concluded that after being sentenced as habitual offender, defendant was ineligible for provisional credits on all sentences, including those imposed before he was designated an habitual offender--Conflict certified.
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.
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?
MARSTON v. STATE, 79 So. 3d 72, 36 Fla. L. Weekly D2672a (Fla. 2DCA 2011). Supreme Court Case No. SC12-357 (Marston v. State). Order dated November 6, 2012. No oral argument. Criminal law--Prosecutorial misconduct--Voir dire--Right to remain silent--Trial court did not abuse its discretion in denying a curative instruction following prosecutor's comments concerning defendant's right to remain silent at trial--There was no reasonable possibility that the failure to give the instruction affected the verdict where there was strong DNA and identification evidence against the defendant, and the possibility of coercion to testify was absent because defendant remained silent.
McDADE v. STATE, 114 So.3d 465, 38 Fla. L. Weekly D1254a (Fla. 2DCA 2013). Supreme Court Case No. SC13-1248 (McDade v. State). Order dated September 10, 2013. Oral argument set by separate order. Criminal law--Sexual battery on child--Evidence--Hearsay--Testimony of victim's boyfriend that victim told him that she was being raped by defendant was not inadmissible hearsay where the testimony was not offered to prove that defendant actually raped victim, but rather to show why boyfriend encouraged victim to make recordings of incriminating conversations with defendant--Intercepted communications--Recordings made by victim of incriminating conversations she had with defendant were properly admitted into evidence because any expectation of privacy defendant may have had is not one which society is prepared to accept as reasonable--Question certified: Does a recording of solicitation and confirmation of child sexual abuse made by the minor child fall within the proscription of Chapter 934, Florida Statutes (2010)?
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.
MILTON v. STATE, __ So.3d __, 36 Fla. L. Weekly D1165a (Fla. 3DCA 2011). Supreme Court Case No. SC11-1338 (Milton v. State). Order dated April 12, 2013. Oral argument to be set by separate order. Criminal law--Post conviction relief--Denial of motion--Appeals--Order which denied relief in part and granted relief in part, to extent that it ordered resentencing to cure a sentencing error, was not a final, appealable order, and motion for rehearing of that order did not toll time for filing appeal--Any issues related to order denying relief on some claims and ordering resentencing should have been raised on appeal following resentencing--Appeal from portions of order denying relief dismissed for lack of jurisdiction--Test for finality is not whether further judicial labor was contemplated on defendant's post conviction motion, but whether order put an end to judicial labor in the entire "cause" between the parties--Conflict certified.
MOSLEY v. STATE, 112 So.3d 538, 38 Fla. L. Weekly D635b (Fla. 1DCA 2013). Supreme Court Case No. SC13-704 (State v. Mosley). Order dated January 14, 2014. No oral argument. Criminal law--Sentencing--Prison releasee reoffender--Consecutive sentences--Error to impose consecutive prison releasee reoffender sentences for crimes that were committed during single criminal episode--Apparent conflict recognized.
OLIVER v. STATE, __ So.3d __, 38 Fla. L. Weekly D478a (Fla. 4DCA 2013). Supreme Court Case No. SC13-1143 (State v. Oliver). Order dated August 12, 2013. Oral argument set by separate order. Criminal law--Lewd and lascivious molestation--Capital sexual battery on child under age twelve--Trial court erred in allowing screen to be placed between victim and defendant in the courtroom during victim's testimony--New trial required.
OVERHOLT v. STATE, 110 So.3d 530, 38 Fla. L. Weekly D744b (Fla. 4DCA 2013). Supreme Court Case No. SC13-962 (State v. Overholt). Order dated August 12, 2013. Oral argument set by separate order. Criminal law--Battery--Lewd and lascivious molestation of child--Trial court committed reversible error when it allowed screen to be placed between victim and defendant while victim testified in open court during jury trial.
PALMS WEST HOSPITAL LIMITED PARTNERSHIP v. BURNS, 83 So.3d 785, 36 Fla. L. Weekly D2612a (Fla. 4DCA 2012). Supreme Court Case No. SC12-1387 (Burns v. Palms West Hospital). Order dated June 3, 2013. Oral argument to be set by separate order. Wrongful death--Hospitals--Medical malpractice--Presuit requirements--Claim that hospital negligently retained physicians who it knew would not treat patients without insurance, ultimately causing death of decedent due to lack of treatment, was a claim arising under Medical Malpractice Act, even if doctors' motives for refusing to come to hospital to provide treatment were purely economic--Trial court departed from essential requirements of law when it denied motion to dismiss third amended complaint for failure to follow medical malpractice presuit requirements.
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.
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.
REIDER v. DORSEY, 98 So.3d 1223, 37 Fla. L. Weekly D2287b (Fla. 3DCA 2012). Supreme Court Case No. SC12-2197 (Dorsey v. Reider). Order dated April 23, 2013. Oral argument to be set by separate order. Torts--Negligence--Duty of care to prevent the independent act of third party--Defendant did not owe duty of care to plaintiff who was attacked with a tomahawk by a third party after the tomahawk had been taken from defendant's truck, and defendant could not be held liable for plaintiff's injuries--Although defendant was the owner of the tomahawk, he was not in actual or constructive control of it at the time of the attack, and defendant was not in actual or constructive control of the third-party tortfeasor.
RELL v. McCULLA, 101 So.3d 878, 37 Fla. L. Weekly D2399a (Fla. 2DCA 2012). Supreme Court Case No. SC12-2598 (McCulla v. Rell). Order dated July 17, 2013. Oral argument set by separate order. Torts--Medical malpractice--Presuit requirements--Corroborating affidavit of medical expert--Trial court departed from essential requirements of law by denying motion to dismiss medical malpractice complaint for failure of plaintiffs to satisfy statutory presuit notice requirements where physician's corroborating affidavit never indicated that defendant provided negligent care or treatment or that there were reasonable grounds to believe that medical negligence had occurred.
RLI LIVE OAK v. SOUTH FLORIDA WATER MANAGEMENT DISTRICT, 99 So.3d 560, 37 Fla. L. Weekly D2528a and 37 Fla. L. Weekly D2089a (Fla. 5DCA 2012). Supreme Court Case No. SC12-2336 (South Florida Water Management District v. RLI Live Oak, LLC). Order dated March 7, 2013. No oral argument. Administrative law--Environmental protection--Water management districts--Challenge to civil fines imposed for alleged unauthorized dredging and filling of wetlands without improvement--Question certified: Under the holding of Department of Banking & Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996), is a state governmental agency which brings a civil action in circuit court required to prove the alleged regulatory violation by clear and convincing evidence before the court may assess monetary penalties?
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?
ROCHESTER v. STATE, 95 So.3d 407, 37 Fla. L. Weekly D1874a (Fla. 4DCA 2012). Supreme Court Case No. SC12-1932 (Rochester v. State). Order dated April 17, 2013. Oral argument to be set by separate order. Criminal law--Lewd and lascivious molestation of child less than twelve years of age--Sentencing--Trial court did not err in concluding that it could not depart downward from mandatory minimum of twenty-five years in prison followed by term of probation for life for violation of section 800.04(5)(b) based on general mitigating circumstance that offense was committed in unsophisticated manner and was isolated incident for which defendant had shown remorse--Legislative amendment to sections 800.04(5)(b) and 775.082(3) established clear and unambiguous expression of legislative intent to impose twenty-five-year mandatory minimum sentence--Use of word "may" in section 775.082(3) interpreted as allowing trial court discretion to impose mandatory minimum prison sentence of twenty-five years as an alternative to life imprisonment, but not as providing trial court discretion to go outside the two sentencing alternatives provided in section 775.082(3)(a)4--Conflict certified.
ROCKMORE v. STATE, __ So.3d __, 37 Fla. L. Weekly D533c (Fla. 5DCA 2012). Supreme Court Case No. SC12-577 (Rockmore v. State). Order dated January 9, 2013. Oral argument to be set by separate order. Criminal law--Robbery with firearm--No error in denying motion for judgment of acquittal in which defendant contended that he "abandoned" stolen merchandise before he threatened a pursuing store employee with a firearm--Whether threatened violence was used "in the course of taking," as defined in robbery statute was proper issue for jury to determine--Jury instructions--No error in refusing to give proffered special instruction that defendant should be found not guilty if he abandoned stolen property before he threatened force, as instruction was an incorrect statement of law, confusing, and already covered in standard instruction--No abuse of discretion in giving modified special instruction in which word "voluntary" was added to qualify abandonment--Second modification to proffered instruction, although erroneous, was invited by submission of the erroneous special instruction and was harmless given inconsequential change to the proffered instruction and its redundancy with the standard instruction given.
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.
SAUNDERS v. DICKENS, 103 So.3d 871, 37 Fla. L. Weekly D2274a (Fla. 4DCA 2012). Supreme Court Case No. SC12-2314 (Saunders v. Dickens). Order dated June 3, 2013. Oral argument to be set by separate order. Torts--Medical malpractice--Failure to diagnose and treat cervical cord compression, a condition which eventually caused patient to suffer quadriplegia--No abuse of discretion in refusing to strike defendant's responsive pleadings for failure to comply with presuit requirements--Argument--Causation--No error in refusing to grant mistral because of several allegedly improper comments by defense counsel in closing argument--Counsel for defendant, the neurologist who initially treated patient, did not make impermissible burden-shifting argument on issue of negligence of neurosurgeon with whom defendant consulted by arguing that plaintiffs failed to present testimony from any neurosurgeon that he would have done anything differently--Instead, counsel appeared to argue that plaintiffs failed to present evidence of causation in light of consulting neurosurgeon's testimony that if defendant had ordered a cervical MRI earlier and the radiographic findings were identical to those seen in later films, neurosurgeon still would not have conducted cervical decompression surgery at that time because neurosurgeon's examination of patient did not find any upper extremity dysfunction--Jury instructions--Trial court properly denied instruction regarding liability of initial and subsequent tortfeasors--Although record evidence arguably supported theory that defendant-neurologist and settling codefendant-neurosurgeon were joint tortfeasors whose negligence united in causing single injury to plaintiff, it did not support conclusion that the two were "initial and subsequent" tortfeasors--Attorney's fees--Allocation--Trial court erred in entering final fee judgment jointly and severally against both patient and wife, whose sole claim was for loss of consortium, based entirely on legal argument that the claims were inextricably intertwined because a consortium claim cannot succeed unless liability for the underlying claim is established--Appellate court declines adoption of blanket rule that consortium claims are always so intertwined with spouse's claim that allocation is never possible--Remand for evidentiary hearing at which defendant will have burden to allocate fees between the claims or show that allocation is impossible.
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.
SIROTA v. STATE, 95 So.3d 313, 37 Fla. L. Weekly D1714a (Fla. 4DCA 2012). Supreme Court Case No. SC12-1683 (State v. Sirota). Order dated January 31, 2014. No oral argument. Criminal law--Post conviction relief--Ineffective assistance of counsel--Claim that counsel was deficient for misadvising defendant that court would admit testimony of therapist supporting his defense, and that failure to admit the testimony would be reversible error--Counsel was not deficient where counsel's opinion was not obviously wrong, fact that trial court disagreed with counsel's argument does not translate into deficient performance, and there is no reasonable probability outcome of trial would have differed with admission of therapist's testimony--Plea offer--Claim that counsel misadvised defendant regarding maximum penalty, causing defendant to reject favorable plea offer--Because nothing in record refutes this allegation, appellate court is bound to remand for further proceedings--In establishing a prima facie case for an evidentiary hearing on remand, defendant's statement that he would have accepted offer, standing alone, is not enough, and defendant must accompany his statement with some objective evidence that supports the inference that defendant would have accepted plea offer if properly advised--Question certified: Do the decisions in Lafler v. Cooper, 132 S. Ct. 1376 (2012), and Missouri v. Frye, 132 S. Ct. 1399 (2012), which establish the minimum requirements of the Sixth Amendment, supersede the decisions in Morgan v. State, 991 So. 2d 835 (Fla. 2008), and Cottle v. State, 733 So. 2d 963, 969 (Fla. 1999), as to the pleading requirements and remedy for an ineffective assistance of counsel claim regarding a lost plea offer? If so, are evidentiary hearings on such claims limited to circumstances involving "formal plea offers," that is, verifiable offers that are either in writing or made on the record in open court?
SMITH, ESTATE OF v. SOUTHLAND SUITES OF ORMOND BEACH, LLC., 28 So.3d 103, 35 Fla. L. Weekly D145a (Fla. 5DCA 2010). Supreme Court Case No. SC10-631 (Smith v. Southland Suites of Ormond Beach, LLC.). Order dated January 16, 2014. Oral argument set by separate order. Wrongful death--Nursing homes--Arbitration--Durable power of attorney decedent's daughter acted under in executing decedent's nursing home admission contract was broad enough to authorize daughter to enter into binding arbitration agreement on decedent's behalf, although power of attorney did not specifically reference arbitration agreements.
SPECIAL v. WEST BOCA MEDICAL CENTER, 79 So.3d 755, 36 Fla. L. Weekly D2503a (Fla. 4DCA 2011). Supreme Court Case No. SC11-2511 (Special v. West Boca Medical Center). Order dated June 20, 2012. Oral argument to be set by separate order. Appeals--Harmless error occurs in a civil case when it is more likely than not that the error did not contribute to the judgment--Question certified.
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. CHUBBUCK, 83 So.3d 918, 37 Fla. L. Weekly D582b (Fla. 4DCA 2012). Supreme Court Case No. SC12-657 (State v. Chubbick). Order dated December 17, 2012. Oral argument will be set by separate order. Criminal law--Sentencing--Guidelines--Departure--Trial court did not err in granting a downward departure sentence due to defendant's requiring specialized medical treatment, despite the fact that defendant provided no evidence that the Department of Corrections could not treat defendant's illnesses--Appellate court recedes from line of cases imposing requirement that defendant prove that the treatment he needs is not available in the prison system where plain language of statute does not contain such a requirement, and nothing in legislative history even hints that in order to justify downward departure, services must be unavailable in prison to treat condition--Because state was not aware of appellate court's present view, sentence is reversed to provide state the opportunity to present evidence as to whether the Department can provide the required specialized treatment--However, such evidence is merely an additional factor which the trial court may consider in exercising its discretion and does not preclude trial court from granting request for downward departure--Conflict certified.
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. DUDLEY, 64 So. 3d 746, 36 Fla. L. Weekly D1431b (Fla. 5DCA 2011). Supreme Court Case No. SC11-2292 (Dudley v. State). Order dated April 24, 2012. No oral argument. Criminal law--Sexual battery on mentally defective person--Evidence was sufficient to support finding that victim was a mentally defective person, and trial court erred in setting aside jury's verdicts of guilty and dismissing charges on ground that evidence was insufficient to support finding that victim was a mentally defective person--Conflict certified with decision in Mathis v. State, 682 So. 2d 175 (Fla. 1st DCA 1996), to extent that Mathis can be read as equating "mental deficiency" with competence to testify, or to mean a total or complete lack of mental capacity or understanding--Court recedes from State v. Torresgrossa, 776 So. 2d 1009 (Fla. 5th DCA 2001), to the extent it positively relied on Mathis.
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. LAFAVE, __ So.3d __, 37 Fla. L. Weekly D1935a (Fla. 2DCA 2012). Supreme Court Case No. SC12-2232 (LaFave v. State). Order dated December 31, 2012. Oral argument to be set by separate order. Criminal law-- Probation--Early termination--Circuit court departed from essential requirements of law, resulting in gross miscarriage of justice, when it granted defendant's motion for early termination of her sex offender probation, in direct violation of negotiated plea agreement in which state agreed to downward departure, nonprison sentence and defendant promised not to seek early termination of probation--State was not prohibited from using the "no early termination" provision in negotiated plea agreement, and defendant was bound by that provision--Fact that circuit court could not have imposed such a condition if defendant had been convicted after trial or had entered an open plea does not affect enforceability of the terms of the plea bargain to which defendant agreed--"No early termination" provision does not violate constitutional separation of powers doctrine--Appeals--Certiorari--Although state has no right to appeal order granting early termination of probation, case presents extraordinary circumstance under which state may seek common law certiorari review in absence of right to appeal--Question certified: In the absence of a statutory right to appeal, may the state seek certiorari review of an order terminating probation where it can show that the circuit court departed from the essential requirements of the law by violating the plea agreement between the state and the defendant which called for no early termination?
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 FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. CURRAN, __ So. 3d __, 36 Fla. L. Weekly D195b (Fla. 5DCA 2011). Supreme Court Case No. SC12-157 (State Farm Mutual Automobile Insurance Company v. Curran). Order dated February 29, 2012. Oral argument set for October 2, 2012. Insurance--Uninsured motorist--Compulsory medical examination--Insured who refused to attend compulsory medical examination was not entitled to recover uninsured motorist benefits--Compliance with policy provision requiring insured who makes claim to attend CME is a condition precedent to suit and recovery of policy benefits.
TAYLOR v. STATE, 96 So.3d 989, 37 Fla. L. Weekly D1904d (Fla. 5DCA 2012). Supreme Court Case No. SC12-2318 (Taylor v. State). Order dated April 16, 2013. Oral argument to be set by separate order. Criminal law--Post conviction relief--Denial of motion--Appeals--Order which denied relief in part and granted relief in part, to extent that it ordered resentencing to cure a sentencing error, was not a final, appealable order, and motion for rehearing of that order did not toll time for filing appeal--Any issues related to order denying relief on some claims and ordering resentencing should have been raised on appeal following resentencing--Appeal from portions of order denying relief dismissed for lack of jurisdiction--Test for finality is not whether further judicial labor was contemplated on defendant's post conviction motion, but whether order put an end to judicial labor in the entire "cause" between the parties--Conflict certified.
TEAMER v. STATE, 108 So.3d 664, 38 Fla. L. Weekly D336a (Fla. 1DCA 2013). Supreme Court Case No. SC13-318 (State v. Teamer). Order dated April 29, 2013. Oral argument to be set by separate order. Criminal law--Search and seizure--Investigatory stop--Vehicle--Drugs discovered in defendant's vehicle after defendant was stopped because the color of defendant's vehicle did not match the color indicated on motor vehicle registration records--Inconsistency in color alone is insufficient basis to support an officer's articulable and reasonable suspicion that a particular person is committing a crime in the absence of any other suspicious behavior or circumstances to allow a temporary seizure of a person for an investigatory stop--Conflict certified.
TRACEY v. STATE, 69 So.3d 992, 36 Fla. L. Weekly D1961a (Fla. 4DCA 2011). Supreme Court Case No. SC11-2254 (Tracey v. State). Order dated January 28, 2013. Oral argument to be set by separate order. Criminal law--Possession of cocaine--Search and seizure--Vehicle--Cell site location information--Although law enforcement violated Chapter 934, Florida Statutes, by tracking location of defendant using real-time cell site location information (CSLI) where it had sought court order only for pen register and trap-and-trace information and where its application failed to offer specific and articulable facts to show CSLI was relevant to ongoing investigation, trial court correctly denied motion to suppress evidence found in stopped vehicle because the exclusionary rule is not a remedy for violations of Chapter 934--Criminal penalties and civil remedy given in Chapter 934 are the only remedies authorized for such a violation--Where law enforcement used real-time CSLI to track defendant's location only on public roads, there was no Fourth Amendment violation.
TRAVELERS COMMERCIAL INSURANCE COMPANY v. HARRINGTON, 86 So.3d 1274, 37 Fla. L. Weekly D1140c (Fla. 1DCA 2012). Supreme Court Case No. SC12-1257 (Travelers Commercial Ins. Co. v. Harrington). Order dated January 28, 2013. Oral argument to be set by separate order. Insurance--Uninsured motorist--Coverage--Stacking--Trial court properly ruled that non-stacking election signed by passenger's mother, who purchased the policy at issue, did not apply to plaintiff because insurer did not obtain knowing acceptance of any such limitation by plaintiff--Waiver of stackable coverage must be personally made by insured who claims stacked benefits--Question certified whether uninsured motorist benefits are stackable under section 627.727(9) where such benefits are claimed by an insured policyholder, and where a non-stacking election was made by the purchaser of the policy, but where the insured claimant did not elect non-stacking benefits.
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.
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.
WARMINGTON v. STATE, 86 So.3d 1188, 37 Fla. L. Weekly D1038a (Fla. 3DCA 2012). Supreme Court Case No. SC12-1050 (Warmington v. State). Order dated April 17, 2013. No oral argument. Criminal law--Grand theft--Burden shifting--Investigating officer's testimony that, when questioned prior to arrest, defendant could not provide documentation to support his position that the money owed was for a loan rather than a theft, and that defendant was subsequently arrested for failure to produce such documentation--No error in denying motion for mistrial based on allegation that testimony of arresting officer improperly shifted burden of proof to defendant--Officer was only testifying as to historical fact, and officer's testimony concerning what he saw, observed, or discovered during the course of an investigation does not shift the burden of proof--Argument--No abuse of discretion in not granting mistrial when prosecutor commented, "one of the tools used to confuse you," during her review of the evidence--Statement was not so egregious or inflammatory in the context of the entire final argument to affect the fairness of the trial, even if directed at defense counsel.
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.
WHISTLER'S PARK, INC., v. FLORIDA INSURANCE GUARANTY ASSOCIATION, 90 So.3d 841, 37 Fla. L. Weekly D1188a (Fla. 5DCA 2012). Supreme Court Case No. SC12-1661 (Florida Insurance Guaranty Association, Inc. v. Whistler's Park, Inc.). Order dated April 23, 2013. No oral argument. Insurance--Property--Conditions precedent--Examination under oath--Error to enter summary judgment in favor of Florida Insurance Guaranty Association, as successor in interest for insurer, based on failure of insured and, subsequently, its assignee to submit to examination under oath where FIGA failed to plead and prove prejudice--Moreover, record indicates that FIGA was not prejudiced.
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?