|FLW Mobile - For easier navigation on your mobile phone!|
Research Associates, Inc.
PLACE AN ORDER
2/24-Hour Online Access
Florida Law Weekly
Sample FLW Online
Week In Review
Current Issue Index
2013 Cumulative Index
2012 Cumulative Index
REVIEW GRANTED - CUMULATIVE LISTING
Cases in which the Supreme Court of Florida has granted review. Subject matter is taken from Florida Law Weekly headnotes and may not directly reflect issues for review.
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?
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.
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?
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.
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.
CAMPBELL v. STATE, 75 So. 3d 757, 36 Fla. L. Weekly D2367b (Fla. 2DCA 2011). Supreme Court Case No. SC12-28 (Campbell v. State). Order dated May 15, 2012. No oral argument. Criminal law--Plea--Withdrawal--Post-sentencing motion--Trial court properly found that without a showing of manifest injustice or clear prejudice, defendant was not entitled to withdraw plea, after sentencing, based on trial court's alleged failure to formally accept plea during plea colloquy--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.
CEDARS HEALTHCARE GROUP v. AMPUERO-MARTINEZ, __So. 3d __, 36 Fla. L. Weekly D2071a (Fla. 3DCA 2011). Supreme Court Case Nos. SC11-2208 (Ampuero-Martinez v. Cedars Healthcare Group) and SC11-2336 (Cedars Healthcare Group v. Ampuero-Martinez). Order dated May 15, 2012. No oral argument. Hospitals--Discovery--Adverse medical incidents--Trial court departed from essential requirements of law by granting request to produce records of adverse medical incidents involving patients other than plaintiff without limiting the production of those records to the same or substantially similar condition, treatment, or diagnosis as the patient requesting access.
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.
CMI, INC. v. ULLOA, 73 So. 3d 787, 36 Fla. L. Weekly D2044a (Fla. 5DCA 2011). Supreme Court Case No. SC11-2291 (Ulloa v. CMI, Inc.). Order dated May 2, 2012. Oral argument will be set by separate order. Criminal law--Driving under influence--Circuit court sitting in its appellate capacity departed from essential requirements of law when it denied foreign corporation's petition for review of county court order denying motions to quash subpoenas seeking the production of the source code for software version used in Intoxilyzer 8000 breath testing instruments manufactured by the corporation--The only way to secure out-of-state witnesses or documents in a criminal case is to follow the procedures set forth in Uniform Law to Secure Attendance of Witnesses from Within or Without the State in Criminal Proceedings--Uniform Law applies not only to out-of-state witnesses, but also to out-of-state corporations which possess documents material to a criminal case--Conflict certified--Appeals--Certiorari review is appropriate in this case, although the circuit court followed precedent from another district court of appeal, where holding of sister district court violated clearly established statutory law.
CORTEZ v. PALACE RESORTS, INC., 66 So. 3d 959, 36 Fla. L. Weekly D1318a (Fla. 3DCA 2011). Supreme Court Case No. SC11-1908 (Cortez v. Palace Resorts, Inc.). Order dated March 1, 2012. Oral argument set for September 5, 2012. Torts--Jurisdiction--Forum non conveniens--Action by California resident against resort located in Mexico, alleging that defendant is vicariously liable for sexual assault committed on plaintiff by a male masseuse while she was on vacation at the resort--Trial court did not abuse discretion in granting defendant's motion to dismiss based on forum non conveniens--Mexico is a more convenient forum and is an available and adequate forum--Inability to obtain an attorney on a contingent fee basis does not render the foreign forum inadequate--Private and public interest factors weigh more heavily in favor of proceeding against defendant in Mexico--Because plaintiff is not a resident of Florida, she is not entitled to a strong presumption in favor of Florida as her initial forum choice.
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.
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.
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.
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.
FETTERMAN AND ASSOCIATES, P.A. v. FRIEDRICH, 69 So. 3d 965, 36 Fla. L. Weekly D1659b (Fla. 4DCA 2011). Supreme Court Case No. SC11-2188 (Friedrich v. Fetterman and Associates, P.A.). Order dated July 24, 2012. No oral argument. Torts--Premises liability--Failure of defendant to warn plaintiff, a business invitee, of defective chair in defendant's office--Error to deny defendant's motion for directed verdict where evidence established that defendant had no prior knowledge that chair was defective or that the chair had been repaired; plaintiff's expert admitted that he did not know when repair work had been performed and that it could have occurred anytime between date of manufacture to day of accident; plaintiff's expert opined that he inspected his own office chairs every six months and that periodic inspections of office chairs was reasonable; and, although expert testified that a flex-test would have revealed defect in chair, expert provided no time frame concerning how long before the accident such testing would have been effective--Lack of evidence establishing when the flex-test would have revealed defect in chair prior to injury was an indispensable factor in determining liability.
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.
FRANKS v. BOWERS, 62 So. 3d 16, 36 Fla. L. Weekly D572b (Fla. 1DCA 2011). Supreme Court Case No. SC11-1258 (Franks v. Bowers). Order dated May 15, 2011. Oral argument set for October 3, 2012. Wrongful death--Medical malpractice--Contracts--Arbitration--No error in compelling arbitration pursuant to arbitration clause in doctor-patient financial agreement, which provided that all disputes relating to diagnosis, treatment, or care of patient would be resolved by arbitration, in lieu and instead of any trial by judge or jury, and which provided limitation on non-economic damages and required compliance with presuit notice requirements in Chapter 766--Arbitration clause was not contrary to public policy embodied in Chapter 766--Further, plaintiff failed to show that contractual arbitration provision was unconscionable.
GEICO GENERAL INSURANCE COMPANY v. VIRTUAL IMAGING SERVICES, INC., __ So. 3d __, 37 Fla. L. Weekly D985b (Fla. 3DCA 2012). Supreme Court Case No. SC12-905 (Geico General Insurance Company v. Virtual Imaging Services, Inc). Order dated July 20, 2012. Oral argument will be set by separate order. Insurance--Personal injury protection--Reimbursement for medically necessary services--Insurer may not limit provider reimbursement to 80 percent of 200 percent allowable amount under Medicare Part B fee schedules where policy does not make specific election to do so--Question certified to Florida Supreme Court as question of great public importance: With respect to PIP policies issued after January 1, 2008, may the insurer compute provider reimbursements based on the fee schedules identified in section 627.736(5)(a), Florida Statutes, even if the policy does not contain a provision specifically electing those schedules rather than "reasonable medical expenses" coverage based on section 627.736(1)(a)?
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.
GLENN v. ROBERTS, 95 So.3d 271, 37 Fla. L. Weekly D1460a (Fla. 3DCA 2012). Supreme Court Case No. SC12-2170 (Roberts v. Glenn). Order dated April 18, 2013. No oral argument. Estates--Wills--Will which devised the residue of estate to a named beneficiary, "having full confidence he will honor all requests made to him by me prior to my death as to friends whom I desire to benefit," was not an unauthorized oral will--Language in will was merely precatory, and not mandatory, in that it did not mandate that residuary estate be distributed according to instructions from decedent, but only expressed hope that all decedent's requests be honored--Further evidence that it was decedent's intent to devise residuary estate to beneficiary without limitation is found in language of will which disinherited her family--Trial court erred in entering judgment on pleadings, finding that residuary estate must be distributed pursuant to intestate statute
GRANEY v. CADUCEUS PROPERTIES, LLC, 91 So. 3d 220, 37 Fla. L. Weekly D1467a (Fla. 1DCA 2012). Supreme Court Case No. SC12-1474 (Caduceus Properties, LLC v. Graney). Order dated November 6, 2012. Oral argument will be set by separate order. Contracts--Limitation of actions--Action arising out of design, construction, and installation of heating, ventilation, and air conditioning system on property owned by plaintiff--Where plaintiff initially filed suit against architect, architect filed third-party complaint against engineer, and plaintiff subsequently filed direct action against third-party defendant, plaintiff's direct action complaint against third-party defendant did not relate back to date of filing of original complaint against architect--Amendment does not relate back to original complaint where a third-party defendant is made a primary defendant after the statute of limitations has run--Conflict certified.
GREENWADE v. STATE, 80 So.3d 371, 37 Fla. L. Weekly D213a (Fla. 1DCA 2012). Supreme Court Case No. SC12-598 (Greenwade v. State). Order dated June 27, 2012. Oral argument to be set by separate order. Criminal law--Trafficking in cocaine in amount more than 200 grams but less than 400 grams--Evidence that nine small baggies found in defendant's possession were field tested before their contents were combined and sent to FDLE, where chemical tests confirmed that the commingled powder contained cocaine and that the weight was more than 200 grams, was sufficient for jury to find that defendant had more than 200 grams of cocaine or a mixture of cocaine in his possession--Trial court did not err in denying defendant's motion for judgment of acquittal--Conflict certified.
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.
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.
JOHNSON v. STATE, __ So. 3d __, 34 Fla. L. Weekly D1644c (Fla. 1DCA 2009). Supreme Court Case No. SC09-1570 (State v. Johnson). Order dated March 14, 2012. Oral argument will be set by separate order. Criminal law--Sentencing--Correction--Guidelines--Departure--Error to deny claim that defendant's upward departure sentences violated dictates of Apprendi v. New Jersey and Blakely v. Washington on ground that these cases did not apply retroactively--Where defendant was resentenced after Apprendi was decided but before Blakely came down, holdings in both cases applied to defendant's sentences--Error to hold that sentences did not violate Apprendi because they did not exceed statutory maximums for offenses--Where defendant was sentenced pursuant to sentencing guidelines, not Criminal Punishment Code, statutory maximum would be the maximum guideline sentence that defendant could receive without the court imposing an upward departure.
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.
LOPEZ-LOARCA v. COSME, 76 So.3d 5, 36 Fla. L. Weekly D2319a (Fla. 4DCA 2011). Supreme Court Case No. SC12-257 (Cosme v. Lopez-Loarca). Order dated March 7, 2013. No oral argument. Torts--Limitation of actions--Amended complaint--Relation back--Error to enter summary judgment finding that plaintiff's individual claim was barred by statute of limitations--Fourth amended complaint in which plaintiff was identified as guardian of person and property of injured party related back to original complaint which was filed by workers' compensation carrier which had paid benefits to injured party and which was styled in the name of the injured party--Plaintiff and guardian were sufficiently related so that defendants were not prejudiced, fourth amended complaint proceeded on the same general allegations as original complaint, and both complaints arose out of same accident of which defendants were put on notice prior to filing of original complaint and sought the same type of damages under the same theory of negligence--Although intervening amendments changed style to reflect a subrogation claim and appeared at one point to restrict claim for damages to those paid by workers' compensation carrier on injured plaintiff's behalf, statute specifically provides for carrier to bring a claim for all damages.
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?
MACKEY v. STATE, 83 So.3d 942, 37 Fla. L. Weekly D637b (Fla. 3DCA 2012). Supreme Court Case No. SC12-573 (Mackey v. State). Order dated June 27, 2012. Oral argument to be set by separate order. Criminal law--Carrying a concealed firearm--Search and seizure--Investigatory detention--Trial court properly denied motion to suppress firearm, which was concealed but recognized on defendant's person due to officer's experience and training and discovered during investigatory stop in pat-down to which defendant did not consent--Defendant's claim that carrying a concealed firearm is illegal only without a permit and, since officer had no information suggesting the lack of a permit, he lacked reasonable suspicion for the stop, overlooks the difference between an essential element of the crime and an exception, or affirmative defense, to the crime--The absence of a license is not an element of the crime of carrying a concealed firearm, but an exception, and reasonable suspicion of the non-existence of such an exception is not required to conduct an investigatory stop--Conflict certified.
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.
MATARRANZ v. STATE, __ So. 3d __, 36 Fla. L. Weekly D1667a (Fla. 3DCA 2011). Supreme Court Case No. SC11-1617 (Matarranz v. State). Order dated May 2, 2012. Oral argument will be set by separate order. Criminal law--Jurors--Challenge for cause--Trial court did not commit manifest error in denying motion to strike for cause juror who initially stated that, because of a past experience, she would hold a grudge against people who violate the law, and that she may lean toward the state, where the totality of juror's responses demonstrated her ability to be fair and impartial and decide case based solely on evidence presented at trial.
METRO-DADE INVESTMENTS CO. v. GRANADA LAKES VILLAS CONDOMINIUM ASSOCIATION, INC., 74 So. 3d 593, 36 Fla. L. Weekly D2548c (Fla. 2DCA 2011). Supreme Court Case No. SC11-2590 (Granada Lakes Villas Condominium Association, Inc. v. Metro-Dade Investments Co.). Order dated July 24, 2012. No oral argument. Receivership--Court's inherent power to appoint a receiver for a nonprofit condominium association is not restricted by statute--Court's right to appoint receiver is inherent in court of equity, not a statutorily created right.
MIAMI-DADE COUNTY, FLORIDA v. RODRIGUEZ, 67 So. 3d 1213, 36 Fla. L. Weekly D1912a (Fla. 3DCA 2011). Supreme Court Case No. SC11-1913 (Rodriguez v. Miami-Dade County, Florida). Order dated December 1, 2011. Oral argument set for September 6, 2012. Torts--Sovereign immunity--Appeals--Certiorari--Court will no longer exercise jurisdiction to review orders either denying motions to dismiss or denying motions for summary judgment where the sovereign argues that it is not liable because no duty can be demonstrated, but court will not refuse to entertain all writs from denials of motions to dismiss or for summary judgment on sovereign immunity grounds--Conflict certified--Trial court improperly denied county's motion to dismiss, on sovereign immunity grounds, negligence action against county arising out of injuries to plaintiff caused by county patrolmen who were responding to emergency situation of a burglary in progress.
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.
PAUL v. STATE, 59 So.3d 193, 36 Fla. L. Weekly D564b (Fla. 4DCA 2011). Supreme Court Case No. SC11-690 (Paul v. State). Order dated August 4, 2011. No oral argument. Criminal law--Post conviction relief--Sentencing--Prison Releasee Reoffender--Claim that PRR sentence is illegal because offense of conviction does not qualify under forcible felony catch-all provision of PRR lacks merit--Conviction under Section 790.19, Florida Statutes (2001), of shooting into an occupied vehicle qualifies under PRR statute, because provision under which defendant is charged necessarily required use of force or violence against an individual--Conflict certified.
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.
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.
S.M. v. STATE, 91 So.3d 175, 37 Fla. L. Weekly D1267a (Fla. 4DCA 2012). Supreme Court Case No. SC12-1405 (State v. S.M.). Order dated February 27, 2013. Oral argument to be set by separate order. Criminal law--Juveniles--Habeas corpus--Probation violation--Detention--Section 958.255(1)(h) does not permit home detention without qualifying score on risk assessment instrument--Juvenile entitled to release from home detention pending probation violation hearing where RAI score was zero.
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.
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 v. S.A., 96 So.3d 1133, 37 Fla. L. Weekly D2178b (Fla. 4DCA 2012). Supreme Court Case No. SC12-2229 (State v. S.A.). Order dated March 7, 2013. No oral argument. Criminal law--Juveniles--Speedy trial--Recapture--Order dismissing counts against juvenile affirmed because state failed to bring juvenile to trial within fifteen days of filing of notice of expiration of speedy trial--No merit to state's argument that trial commencement was timely because it occurred ten days after hearing on motion for discharge, and discharge hearing was conducted within five days of motion if not counting Saturday, Sunday, and a Monday holiday--Five-ten "recapture window" provided by rules of juvenile procedure should be construed as one fifteen-day time period--Conflict certified.
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.
TREACY v. LAMBERTI, 80 So. 3d 1053, 37 Fla. L. Weekly D228b (Fla. 4DCA 2012). Supreme Court Case No. SC12-647 (Treacy v. Lamberti). Order dated November 6, 2012. Oral argument will be set by separate order. Criminal law--Juveniles--Attempted first degree premeditated murder with deadly weapon--Pretrial release--U.S. Supreme Court decision in Graham v. Florida, in which Court held that it was unconstitutional to impose sentence of life without parole on juvenile offender who did not commit homicide, does not entitle juvenile to bond as a matter of right.
TRINIDAD v. FLORIDA PENINSULA INSURANCE COMPANY, __ So. 3d __, 36 Fla. L. Weekly D1081a (Fla. 3DCA 2011). Supreme Court Case No. SC11-1643 (Trinidad v. Florida Peninsula Insurance Company). Order dated June 8, 2012. No oral argument. Insurance -- Homeowners -- Overhead and profit -- Under terms of replacement cost policy, insured was not entitled to payment from insurer for overhead and profit where insured had not hired a contractor to repair fire damage to insured home.
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.
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. Oral argument to be set by separate order. 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?
YOUNG v. STATE, 73 So. 3d 825, 36 Fla. L. Weekly D2338b (Fla. 5DCA 2011). Supreme Court Case No. SC11-2151 (Young v. State). Order dated April 10, 2012. Oral argument set for October 3, 2012. Per curiam affirmed; conflict certified.