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from Florida's Circuit and County Courts

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Judges -- Code of Judicial Conduct -- Disqualification -- Where judge has appointed committee of responsible persons for fundraising that includes attorneys, judge must disclose status of attorneys as committee members to counsel or parties opposing those attorneys in all proceedings before judge, irrespective of how active committee member has actually been -- Fact of attorney's committee membership does not require automatic recusal -- Judge in civil division need not seek out attorneys or parties in cases in inactive or default status to make disclosure and may limit disclosure to cases in which some action by judge is requested -- Disclosure may be made on judge's official letterhead at public expense
VIEW OPINION

Judges -- Code of Judicial Conduct -- Elections -- Judge seeking reelection may not use image of judge being sworn in by now deceased former judge in campaign literature and electronic media because use of image would give impression that deceased judge endorsed or would have endorsed candidate judge
VIEW OPINION

Judges -- Code of Judicial Conduct -- Elections -- Judge facing opposition for reelection may accept public endorsements of elected state attorney, sheriffs and police chiefs in judge's jurisdiction and may publicly identify those supporters by their titles in connection with their endorsements -- If judge concludes that campaign endorsements would cause reasonable defendant to believe he could not receive fair or impartial trial, judge should enter order of disqualification unless disqualification is waived by parties
VIEW OPINION

Judges -- Code of Judicial Conduct -- Elections -- Judicial candidate may educate public about judicial appointment process and may mention that incumbent opponent was appointed, when appointment was made and by whom appointment was made so long as candidate does not interject partisan politics into campaign
VIEW OPINION

Judges -- Code of Judicial Conduct -- Hearing officers -- Civil traffic infraction hearing officer may serve as president of board of directors of legal aid organization that does not represent clients in traffic court
VIEW OPINION

Judges -- Code of Judicial Conduct -- Elections -- Judicial candidate may provide biography to partisan political organization for publication in organization's newsletter so long as organization is not requesting biography for purpose of endorsing a judicial candidate, organization has also invited candidate's opponents to submit biographies, and organization will include notice of invitation in newsletter if opponents do not provide biographies -- If organization represents that it has requested biographies from candidate's opponents, candidate must confirm invitation with opponents before providing own biography
VIEW OPINION

Judges -- Code of Judicial Conduct -- Extrajudicial activities -- Quasi-judicial activities -- Judge may serve on board of directors of women's non-profit foundation that engages in fundraising activities so long as judge does not personally participate in solicitation of funds or other fundraising activities -- If judge elects not to serve on non-profit foundation board, judge may be involved with board in advisory capacity -- Judge may serve on board of Leukemia and Lymphoma Society that also fundraises so long as judge does not personally participate in solicitation of funds or other fundraising activities -- If judge is unable to serve on Society's board, judge may attend and personally contribute to functions organized by Society -- Judge may be a dues paying member of women's non-partisan civic group that also fundraises so long as judge does not personally participate in solicitation of funds or other fundraising activities -- Judge may be dues paying member of Junior League
VIEW OPINION

Judges -- Code of Judicial Conduct -- Judge who is not up for reelection in current election cycle may attend post-election gathering of judge's child who is running for open judicial seat where judge will not attend until after polls are closed
VIEW OPINION

Judges -- Code of Judicial Conduct -- Disqualification -- Judge's relationship as landlord to party requires disclosure and disqualification -- Judge may hear cases involving tenants if parties waive disqualification after disclosure -- Judge is only required to divest self of ownership interest in property leased to banks if judge is unable to minimize number of cases wherein disqualification is required
VIEW OPINION

Judges -- Code of Judicial Conduct -- Elections -- Judicial candidate may advertise candidacy on digital screen affixed to moving truck on which candidate's advertisement will be placed in rotation with partisan campaign advertisements and on which only one advertisement will be visible at a time
VIEW OPINION

Judges -- Code of Judicial Conduct -- Judge-appointee who is member of legislature may participate in special session of legislature that will conclude before appointee takes office
VIEW OPINION

Judges -- Code of Judicial Conduct -- Extrajudicial activities -- Judge may not serve on county development authority
VIEW OPINION

Judges -- Code of Judicial Conduct -- Senior judge may not serve as a mediator in cases pending in U.S. District Court or U.S. Bankruptcy Court that are geographically located within state judicial circuit in which senior judge presides
VIEW OPINION

Judges -- Code of Judicial Conduct -- Senior judge, as personal representative of spouse's estate, in order to close down deceased spouse's solo practice, may hire staff to bill accounts receivable, become a signor on firm's operating and trust accounts, hire an attorney, if necessary to address legal issues that may arise in administering estate and closing down practice, and purchase tail insurance for Professional Association
VIEW OPINION

Traffic infractions -- Red light cameras -- Trial court erred in upholding violation where state failed to present competent substantial evidence linking vehicle to ticketed individual -- Officer's hearsay statement alone was insufficient as matter of law
VIEW OPINION

Criminal law -- Careless operation of vessel -- Bow riding -- Defendant who was operating vessel with bow riders was not guilty of careless operation of vessel where attendant circumstances made it unlikely that vessel would have collided with any submerged object, and even if it had, that bow riders would have been thrown from vessel
VIEW OPINION

Contracts -- Credit card agreement -- Account stated -- Attorney's fees -- Reciprocal attorney's fees provision
VIEW OPINION

Civil procedure -- Settlement -- Enforcement -- Neither settlement offer accepted by plaintiff nor prior negotiations made execution of release a condition of settlement -- Plaintiff's motion to enforcement settlement is granted
VIEW OPINION

Landlord-tenant -- Eviction -- Return of security deposit -- Where tenant filed suit for return of security deposit prior to possession of property being returned to landlord, conditions precedent to suit have not been met -- Complaint dismissed without prejudice
VIEW OPINION

Landlord-tenant -- Eviction -- Public housing -- Pleadings -- Exclusion of sensitive information -- Landlord in public housing eviction action involving minor child was not exempted from complying with rule 2.425(a)'s requirement to exclude or limit from pleadings sensitive information relating to child by fact that information was obtained through public and social media or by fact that information is designated as not confidential by criminal statute -- Landlord is directed to file amended complaint that complies with rule -- Imposition of sanctions is withheld where violation was not willful
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Medical provider ordered to produce bills submitted to and payments made by Medicare, any Florida workers' compensation insurer, and any health insurer for CPT codes at issue, and any contract entered into with those entities -- Provider is ordered to produce bills submitted to and payments made by private pay customers for CPT codes at issue
VIEW OPINION

Debt collection -- Small claims -- Summary disposition is precluded by concerns with whether one affidavit filed by plaintiff in support of motion for summary disposition satisfies business records exception to hearsay rule and with qualified oath contained in second affidavit
VIEW OPINION

Contracts -- Credit card debt -- Assignee's action to collect debt under theories of money lent and unjust enrichment -- Evidence was insufficient to support judgment in favor of plaintiff
VIEW OPINION

Contracts -- Credit card agreement -- Final judgment is entered in favor of defendant in action to collect credit card debt under theories of unjust enrichment and account stated where any obligation to repay debt was based on cardholder agreement -- Further, plaintiff failed to establish its standing to enforce debt as assignee of original creditor
VIEW OPINION

Contracts -- Credit card agreement -- Final judgment is entered in favor of defendant in action to collect credit card debt under theories of unjust enrichment and account stated where any obligation to repay debt was based on cardholder agreement -- Further, plaintiff failed to establish its standing to enforce debt as assignee of original creditor
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Policy that clearly subjects all payments to any limitations of PIP statute, including all fee schedules, unambiguously elects to limit reimbursement to permissive statutory fee schedule -- Failure to reference Medicare and inclusion of language regarding payment of reasonable charges does not render policy ambiguous
VIEW OPINION

Insurance -- Attorney's fees -- Proposal for settlement -- Voluntary dismissal with prejudice is judgment for purposes of entitlement to attorney's fees under section 768.79(6) -- Insurer had reasonable basis for nominal proposal for settlement where plaintiff was not listed as passenger on police crash report
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Divergent judicial opinions from county and circuit courts as to whether policy provision at issue clearly elects to limit reimbursement to permissive statutory fee schedule render policy provision ambiguous per se -- Florida Supreme Court's opinion in Virtual Imaging does not compel finding that policy provision at issue unambiguously elects use of statutory fee schedule -- Sufficiency of policy language was never considered in Virtual Imaging opinion, and policy provision at issue here is much broader and open to wider construction than policy language in Virtual Imaging -- Policy provision that makes vague references to “any and all limitations...including, but not limited to, all fee schedules” does not unambiguously elect to limit reimbursement to permissive statutory fee schedule
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Divergent judicial opinions from county and circuit courts as to whether policy provision at issue clearly elects to limit reimbursement to permissive statutory fee schedule render policy provision ambiguous per se -- Florida Supreme Court's opinion in Virtual Imaging does not compel finding that policy provision at issue unambiguously elects use of statutory fee schedule -- Sufficiency of policy language was never considered in Virtual Imaging opinion, and policy provision at issue here is much broader and open to wider construction than policy language in Virtual Imaging -- Policy provision that makes vague references to “any and all limitations...including, but not limited to, all fee schedules” does not unambiguously elect to limit reimbursement to permissive statutory fee schedule
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Divergent judicial opinions from county and circuit courts as to whether policy provision at issue clearly elects to limit reimbursement to permissive statutory fee schedule render policy provision ambiguous per se -- Florida Supreme Court's opinion in Virtual Imaging does not compel finding that policy provision at issue unambiguously elects use of statutory fee schedule -- Sufficiency of policy language was never considered in Virtual Imaging opinion, and policy provision at issue here is much broader and open to wider construction than policy language in Virtual Imaging -- Policy provision that makes vague references to “any and all limitations...including, but not limited to, all fee schedules” does not unambiguously elect to limit reimbursement to permissive statutory fee schedule
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Policy that clearly subjects all payments to any limitations of PIP statute, including all fee schedules, unambiguously elects to limit reimbursement to permissive statutory fee schedule -- Failure to reference Medicare and inclusion of language regarding payment of reasonable charges does not render policy ambiguous
VIEW OPINION

Contracts -- Attorneys -- Fees -- Affirmative defenses -- Accord and satisfaction -- Law firm's negotiation of check tendered by client which was less than billed amount but marked “full and final payment” constituted accord and satisfaction
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Exhaustion of policy limits -- Summary judgment
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Medical provider's negotiated rates with other insurers are not relevant to determination of what insurer must pay provider for MRI -- Motion to compel is denied
VIEW OPINION

Insurance -- Personal injury protection -- Penalty and postage -- Insurer that paid medical expenses and interest after receipt of demand letter cannot defend against action for penalty and postage by claiming that services for which it paid were not related or medically necessary -- No merit to argument that insurer is obligated to pay penalty only if full amount is paid after receipt of demand letter
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy providing that insurer will pay 80% of reasonable expenses but also providing that amount payable “shall be subject to any and all limitation” authorized by PIP statute does not provide clear and unambiguous notice of intent to limit reimbursement to Medicare Part B fee schedule
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary disposition -- Opposing affidavits filed by insurer do not preclude summary disposition in favor of medical provider on issue of reasonableness of MRI charge where affidavits are conclusory and lack foundation, and affiants are not qualified to render opinion on reasonableness of MRI charge -- Fact that Medicare, workers' compensation, and health insurance pay less than amount billed by provider does not, by itself, create factual issue as to reasonableness of charge
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary disposition -- Opposing affidavit filed by insurer do not preclude summary disposition in favor of medical provider on issue of reasonableness of MRI charge where affidavit is conclusory and lacks foundation, and affiant is not qualified to render opinion on reasonableness of MRI charge -- Fact that Medicare, workers' compensation and health insurance pay less than amount billed by provider does not, by itself, create factual issue as to reasonableness of charge
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary disposition -- Opposing affidavit filed by insurer do not preclude summary disposition in favor of medical provider on issue of reasonableness of MRI charge where affidavit is conclusory and lacks foundation, and affiant is not qualified to render opinion on reasonableness of MRI charge -- Fact that Medicare, workers' compensation and health insurance pay less than amount billed by provider does not, by itself, create factual issue as to reasonableness of charge
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Summary disposition -- Opposing affidavits filed by insurer do not preclude summary disposition in favor of medical provider on issue of reasonableness of MRI charge where affidavits are conclusory and lack foundation, and affiants are not qualified to render opinion on reasonableness of MRI charge -- Fact that Medicare, workers' compensation and health insurance pay less than amount billed by provider does not, by itself, create factual issue as to reasonableness of charge
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy providing that insurer will pay 80% of reasonable expenses but also providing that amount payable “shall be subject to any and all limitation” authorized by PIP statute does not provide clear and unambiguous notice of intent to limit reimbursement to Medicare Part B fee schedule
VIEW OPINION

Landlord-tenant -- Eviction -- Commercial lease -- Tenant did not breach lease by failing to construct improvements to premises which were not required by terms of lease or by failing to construct improvements in accordance with plans not incorporated into lease -- Alleged breaches of lease provisions that expressly require tenant to make improvements do not establish grounds for eviction where landlord failed to prove that breaches were material -- Moreover, plaintiff failed to present evidence that defendant failed to cure any or all of breaches after valid notice of default
VIEW OPINION

Criminal law -- Driving under influence -- Evidence -- Expert opinion -- Scientific evidence -- Breath test results -- Testimony regarding results of breath test conducted with diagnostic instrument, such as Intoxilyzer 8000, is not expert testimony subject to Daubert standard
VIEW OPINION

Debt collection -- Credit card account -- Defendant's motion for involuntary dismissal of action to collect credit card account balance is granted where defendant denied owing any monies on account, and plaintiff, whose records custodian was not qualified to testify to original creditor's accounting practices and accuracy of account balance, did not present sufficient credible evidence of accuracy of claimed balance
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Consensual encounter -- Where officer approached vehicle which was parked at closed business in early morning hours and asked if defendant would talk to him, and defendant, who was free to leave, agreed to talk with officer, contact was consensual encounter -- Motion to suppress is denied
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Vehicle stop -- Deputy who observed defendant cross over center line four times and cross over or onto fog line three times while driving 10 - 15 mph under speed limit had reasonable suspicion to stop defendant to determine whether he was sick, tired, or impaired -- Motion to suppress is denied
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Consensual encounter -- Where deputy approached vehicle that had been parked at convenience store awhile to determine if there was need of assistance, contact was consensual encounter -- Motion to suppress is denied
VIEW OPINION

Insurance -- Personal injury protection -- Void policy -- Material misrepresentations on application -- Declaratory action is proper vehicle for insurer to obtain judicial determination that it may void policy ab initio due to a material mispresentation -- Policy in instant case may be voided ab initio where insured incorrectly stated on application that he had not been involved in any automobile accidents in the past three years as driver or passenger and had not made a claim for medical injuries in Florida within the past three years -- Misrepresentations were material where insurer would not have accepted the risk had application disclosed the true facts -- Final summary judgment entered in favor of insurer -- Final judgment extinguishes claims of others whose rights were derived under the insurance policy
VIEW OPINION

Attorney's fees -- Justiciable issue -- Where plaintiff assigned away its interest in note and mortgage before bringing action against homeowner's association and entered voluntary dismissal after association found document showing assignment, association is entitled to award of attorney's fees
VIEW OPINION

Banks -- Torts -- Conversion -- Civil theft -- Fencing -- Conspiracy -- Aiding and abetting -- Summary judgment entered in favor of bank in action alleging bank was complicit in opening certain accounts, accepting wires into and wiring funds from, these accounts, and failing to close these accounts, filed after an audit uncovered evidence of embezzlement by three of plaintiffs' employees -- There was no evidence that bank acted improperly in opening accounts or with knowledge that purpose of accounts was to receive funds embezzled from plaintiffs -- Record is devoid of any evidence that bank knew at time funds were wired to the accounts at issue that the funds were proceeds of an embezzlement and acted intentionally either as aider/abettor, a co-conspirator, or a direct participant in wrongdoing -- Under Florida law, actual knowledge is necessary element of aiding/abetting and other intentional tort claims, and there was no evidence that any bank employee had actual knowledge that funds credited to accounts were stolen -- Further, bank had no duty to non-customer plaintiffs to investigate, discover, or stop actual customer wrongdoing -- Any duty bank may have had to regulators to monitor and report suspicious transactions and enforce “Know Your Customer” policies did not extend to create a duty or cause of action in favor of non-customers such as plaintiffs for any failure to carry out regulatory obligations -- Willful blindness is not a substitute for actual knowledge to prove aiding/abetting, conspiracy, conversion, civil theft, or fencing -- Under Florida law nothing less than actual knowledge and complicity is required -- Moreover, plaintiffs failed to offer any evidence to establish willful blindness
VIEW OPINION

Criminal law -- Bail -- Revocation of pretrial release -- Defendant who is released on own recognizance and enrolled in pretrial intervention is on pretrial release within meaning of section 903.0471, which provides that court may, on its own motion, revoke pretrial release and order pretrial detention if court finds probable cause to believe that defendant committed new crime while on pretrial release -- Motion to set bond denied
VIEW OPINION

Criminal law -- Forfeiture of property -- Vehicle used by defendant to transport, sell and deliver cocaine and currency found in vehicle are forfeited under Florida Contraband Forfeiture Act
VIEW OPINION

Criminal law -- Burglary -- Violation of domestic violence injunction -- Sentencing -- Departure from guidelines -- Downward departure from sentencing guidelines is not warranted by victim's initiation of contact by sending provocative pictures to defendant where victim sent pictures many months prior to incidents that resulted in charges -- Moreover, victim's initiation of contact would not justify burglarizing her home -- Court imposes sentence below guidelines based on victim's uncoerced desire for non-incarcerative sentence
VIEW OPINION

Torts -- Discovery -- Interrogatories -- Defendant is ordered to provide better answers to interrogatories regarding relationship between defense and doctor who conducted compulsory medical examination
VIEW OPINION

Mortgages -- Foreclosure -- Condition precedent -- Notice of intent to accelerate that did not comply with mortgage and note did not satisfy condition precedent to foreclosure action
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Insurer could use Medicare fee schedules to determine reasonable amount to be paid in PIP benefits notwithstanding failure to elect use of fee schedules in policy, but fee schedules cannot be sole basis for determination of reasonable amount -- No error in striking affidavit of expert who used fee schedules as sole basis to determine reasonable amount that should be paid and entering summary disposition in favor of medical provider
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving under influence -- No merit to argument that license suspension was invalid because licensee was not issued notice of suspension where licensee admitted in affidavit supporting motion to recuse hearing officer that notice of suspension was issued -- Lawfulness of detention -- Officer who found licensee asleep behind wheel of running vehicle at major intersection, smelled odor of alcohol, and noted that licensee's eyes were bloodshot had reasonable suspicion to detain licensee for DUI investigation -- Argument that hearing officer erred in relying on uncertified driving transcript to enhance licensee's suspension was not preserved for appellate review where licensee did not object to admission of transcript into hearing record -- Hearing officers -- Disqualification -- Motion to recuse hearing officer was legally insufficient where motion asserted subjective fear that hearing officer would misapply law based on memorandum from chief of bureau of administrative reviews directing all hearing officers to apply arguably erroneous interpretation of law
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving with unlawful breath/blood alcohol level -- Lawfulness of arrest -- Licensee's post-Miranda admission that she was on her way home and got confused by traffic lights provides competent substantial evidence to support finding that arresting officer conducted sufficient personal investigation at crash scene to believe that licensee was driving and conduct lawful arrest -- Hearing -- Refusal to issue subpoenas -- No abuse of discretion in refusing requests for subpoenas duces tecum for sheriff's custodian of records and breath test operator to bring operator's certification documents and records of renewal courses to hearing where hearing officer issued alternate subpoenas requiring operator to bring only most recent certification and requiring records custodian to bring only documents relating to repairs and calibrations of machine used to test licensee's breath
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving with unlawful blood alcohol level -- Lawfulness of arrest -- Where officer who stopped licensee for speeding detected odor of alcohol on licensee's breath and observed that he had flushed face and red glassy eyes, officer had probable cause for DUI arrest -- No merit to argument that licensee's refusal to perform field sobriety exercises cannot be used against him in determining existence of probable cause for his arrest where licensee was given Miranda warnings advising that anything he said could be used against him -- Hearing -- Subpoenas -- Modification -- Where subpoenas duces tecum were overly broad, hearing officer properly modified subpoenas to limit scope to relevant information
VIEW OPINION

Criminal law -- Dismissal -- Absence of motion -- Trial court erred by sua sponte dismissing charge against defendant -- State's failure to object to dismissal is irrelevant
VIEW OPINION

Criminal law -- Driving with license suspended -- Dismissal -- Trial court abused its discretion by sua sponte dismissing charge against defendant -- State's failure to object to dismissal is irrelevant
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Vehicle stop -- Officer acting outside jurisdiction -- Fresh pursuit -- Where defendant was within officer's jurisdiction when officer observed him speeding on bridge, and defendant turned into neighboring jurisdiction as he exited bridge, officer who immediately initiated pursuit as defendant exited bridge was in fresh pursuit when he stopped defendant several blocks later -- Order denying motion to suppress is affirmed
VIEW OPINION

Criminal law -- Counsel -- Trial court erred in appointing public defender as standby counsel to defendant who was not indigent and elected to proceed pro se
VIEW OPINION

Municipal corporations -- Zoning -- Variances -- Undue hardship -- “No reasonable use” standard is appropriate measure of undue hardship for variances -- Record contained no competent substantial evidence that property owner would have no reasonable use of property without variances -- Variance order is quashed
VIEW OPINION

Criminal law -- Indecent exposure
VIEW OPINION

Insurance -- Personal injury protection -- Summary judgment -- In ruling on motion for summary judgment, trial court erred in considering documents that were not served on insured or filed with court prior to hearing on motion
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Policy that provides that all payments shall be subject to limitations authorized by all fee schedules unambiguously elects to limit reimbursement to statutory fee schedules
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Investigative stop -- Officer had reasonable suspicion that couple that included defendant were committing a crime based on officer's observation of couple having sexual intercourse in vehicle parked in residential neighborhood where couple's activities were visible to public -- Officer had probable cause for DUI arrest where, after defendant opened vehicle door, officer observed open containers in vehicle and was able to detect that defendant was significantly impaired -- Error to grant motion to suppress
VIEW OPINION

Insurance -- Discovery -- Depositions -- Error to prohibit insurer from deposing medical provider regarding reasonableness of charges
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Lawfulness of stop -- Officer's testimony that defendant was driving at night without headlights was conclusively refuted by video from arresting officer's dashboard camera -- Appellate court's reliance on video as basis for rejecting hearing officer's finding that traffic stop for headlight infraction was lawful is not impermissible reweighing of evidence -- Where officer misinformed defendant that his refusal would not have any criminal consequences, refusal should not have been considered by hearing officer -- Final order of license suspension is quashed
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving under influence -- Hearing -- Due process -- Hearing officer violated licensee's right to have fair hearing and develop full record for appellate review by preventing licensee from making full proffer including question and answer -- Hearing officer violated licensee's due process rights to present defense by closing evidentiary portion of hearing and refusing to reopen hearing to allow licensee to present additional defenses and motions -- Remand for de novo hearing before different hearing officer
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving under influence -- Evidence -- Breath test -- Breathalyzer technician permit -- Licensee's submission of original permit is not sufficient evidence that permit was invalid at time of arrest or testing, and it is not appropriate to shift burden of proof to Department of Highway Safety and Motor Vehicles based solely upon the submission of an original permit -- Although it may be a question of law whether completion of certain continuing education courses satisfies administrative rule that requires such courses, DHSMV may make a factual determination, based upon evidence presented at hearing, as to whether continuing education courses were taken -- Prior cases in which court held to the contrary are overruled -- In case at issue, licensee's submission of technician's original permit, standing alone, was not sufficient to shift burden of proof to agency -- Because licensee relied upon court's precedent, licensee to be afforded opportunity to substantiate his allegations under standard delineated in court's opinion
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving under influence -- Breath test -- Agency inspector permit -- Validity
VIEW OPINION

Criminal law -- Sentencing -- Restitution -- Hearing -- Trial court did not err in finding that defendant voluntarily waived right to be present at restitution hearing where defense counsel stated that notice of hearing had been sent to same address used to send notice of prior hearing that defendant did attend, and defense counsel did not allege that defendant failed to receive notice or present evidence that defendant's absence was involuntary
VIEW OPINION

Criminal law -- Traffic infractions -- Driving without valid license -- State is not required to prove knowledge as element of charge of driving without valid license
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- PIP policy providing that insurer will pay 80% of reasonable expenses “subject to the applicable fee schedules and payment limitations” in PIP statute fails to clearly and unambiguously elect to limit reimbursement to permissive statutory fee schedule
VIEW OPINION

Criminal law -- Resisting officer without violence -- Lawful execution of legal duty -- Search and seizure -- Appeals -- Nolo contendere plea -- Dispositive issues -- Where defense counsel stated that defendant was entering no contest plea and expressly reserving right to appeal motion, but counsel did not specifically identify point of law being reserved, and trial court did not state whether motion was dispositive, defendant did not expressly reserve right to appeal denial of motion to suppress -- Even if defendant did expressly reserve right to appeal, trial court's denial of motion to suppress is affirmed -- Officer had reasonable suspicion to detain defendant where officer encountered defendant, who matched description of theft suspect in BOLO, 30 minutes after release of BOLO, four blocks away from store where theft occurred, and in area where suspects normally exit store and to which witness saw suspect flee, and defendant refused lawful orders to sit down and provide identifying information
VIEW OPINION

Criminal law -- Plea -- Vacation -- Immigration and deportation consequences -- Failure to advise -- Timeliness of motion -- Trial court erred in vacating defendant's plea where defendant's motion to vacate plea was filed two years beyond two-year limitations period, and defendant failed to prove that she could not have ascertained deportation consequences of plea during two-year period with exercise of due diligence
VIEW OPINION

Evidence -- Hearsay -- Where no business records were attached to affidavit of indebtedness, affidavit is inadmissible hearsay
VIEW OPINION

Criminal law -- Driving under influence -- Judgment of acquittal -- Denial -- There was competent substantial evidence to withstand motion for judgment of acquittal and for jury's guilty verdict where defendant made abrupt left turn that caused deputy to brake hard; deputies observed that defendant had strong odor of alcohol, slurred speech, bloodshot and glassy eyes, unsteady posture and agitated demeanor; and video from Breath Alcohol Testing facility showed that defendant gave incoherent answers to questions
VIEW OPINION

Criminal law -- Loitering and prowling -- Search and seizure -- Arrest -- Where officer's probable cause for warrantless arrest for misdemeanor loitering and prowling was obtained from viewing surveillance video of defendant in residential yard, misdemeanor did not occur in presence of officer, and arrest was illegal -- Error to deny motion to suppress
VIEW OPINION

Criminal law -- Cruelty to animals -- Trial court did not err in denying motion for judgment of acquittal or in finding defendant guilty of animal cruelty where defendant left dog in her parked vehicle while she was at work during three days of sweltering weather with water bowl that was flipped over and vehicle window open just a crack
VIEW OPINION

Criminal law -- Driving while license suspended -- Search and seizure -- Where defendant mistakenly stopped when officer activated his lights intending to stop another vehicle, and officer recognized defendant as person he had previously stopped for driving with suspended license but could not recall when that stop occurred, officer did not have reasonable suspicion for stop or to demand driver's license
VIEW OPINION

Uniform Commercial Code -- Sales -- Repudiation -- Error to enter summary judgment in favor of cabinetmaker, who was suing for balance of payment for bathroom cabinets that were installed without drawers, where material issues of fact existed with regard to both “acceptance” of cabinets prior to the delivery of drawers and revocation of acceptance after installation of cabinet countertops by third party contractor, and where affirmative defenses of nonconformity, breach of contract based on nonconformity and non-workmanlike construction, and counterclaim based upon defenses were unresolved
VIEW OPINION

Criminal law -- Driving under influence -- Driver's license revocation -- No error in imposing lifetime driver's license revocation -- Plain language of section 322.28(2)(a)2 provides mandatory minimum period of license revocation upon conviction of DUI but does not provide mandatory maximum revocation period -- Trial court was not required to utilize “totality of circumstances” criteria of section 316.655(2) when setting period of revocation where defendant was not convicted of offense prohibited by chapter 316 other than DUI
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- De facto arrest -- Trial court did not err in finding that defendant was subject to de facto arrest when he was handcuffed and transported in patrol vehicle from crash site to nearby parking lot for field sobriety exercises where court resolved conflicting evidence to find that there was no reasonable basis for defendant's transport and transport was not voluntary -- No error in concluding that trooper did not have probable cause for de facto arrest where only indicia of impairment prior to transport was odor of alcohol, pacing or slight swaying by defendant, and occurrence of accident on wet roadway -- Order granting motion to suppress is affirmed
VIEW OPINION

Criminal law -- Driving under influence -- Evidence -- Breath test -- Inspection and maintenance of breath testing machines -- Substantial compliance with administrative rules -- Order granting motion to suppress is affirmed where competent substantial evidence supported trial court's finding that defendant's motion to suppress was among those heard and granted by another judge ruling on common “plug pull” issue raised in numerous cases
VIEW OPINION

Criminal law -- Traffic infractions -- Driving with unsafe or improper equipment -- No merit to argument that citation for failing to have properly functioning headlights should have been mitigated notwithstanding defendant's failure to obtain affidavit of compliance showing headlight repair because defendant's vehicle was destroyed by vandals before she could make repairs where destruction of vehicle occurred after expiration of thirty-day period allowed for demonstrating proof of repair and obtaining mitigation -- Appeals -- Absence of transcript -- Affirmance of lower court ruling
VIEW OPINION

Criminal law -- Post conviction relief -- Plea -- Trial court did not commit fundamental error in denying motion to vacate plea to vehicle registration charge where defendant filed motion to vacate ten months after expiration of two-year period for seeking such relief
VIEW OPINION

Criminal law -- Driving under influence -- Evidence -- Breath test -- No abuse of discretion in admitting evidence of defendant's three “volume not met” breath samples -- Defendant's inability to follow instructions for giving breath samples is indication of impairment, which is essential element of DUI offense -- Further, defendant was not prejudiced by admission of invalid breath samples where consciousness of guilt argument was not mentioned, jury did not discover result of defendant's one valid breath sample, and probative value of invalid samples outweighed any potential prejudice
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Vehicle stop -- Traffic infraction -- Deputy who observed defendant make wide turn that caused vehicle in adjacent lane to take evasive action had probable cause to stop defendant for failure to obey traffic control device -- Error to grant motion to suppress
VIEW OPINION

Criminal law -- Leaving scene of accident -- Sentencing -- Restitution -- Where it was not clear that defendant understood that, as part of plea agreement, he would be ordered to pay restitution for offense, which usually does not allow restitution to be ordered absent showing of causal relationship; there was nothing in record establishing that defendant was at fault for causing these damages; and the amount of restitution was not supported by competent substantial evidence, case remanded to afford defendant an opportunity to withdraw plea -- New restitution hearing required if defendant elects to maintain plea
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Vehicle stop -- No error in finding that there was no reasonable suspicion justifying stop where defendant was victim of hit and run driver, and service aide did not observe indicia of impairment until after he had conducted traffic stop by requiring defendant to back up into parking lot and remove keys from ignition -- Order granting motion to suppress is affirmed
VIEW OPINION

Civil procedure -- Default -- Vacation -- Error to enter default and default final judgment where defendant did not receive notice of motion for sanctions or application for default, which were sent to incorrect address
VIEW OPINION

Landlord-tenant -- Eviction -- Default -- Tenant alleging defense of defective three-day notice was required to pay accrued rent into court registry and failure to do so entitled landlord to immediate default judgment
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Detention and arrest -- Actual physical control of vehicle -- Where officer, who was responding to single vehicle accident, was told by emergency responders that defendant was only person in vehicle when they arrived on scene, but there was no testimony that defendant was ever in driver's seat of vehicle or in active or constructive possession of ignition key, trial court did not err in finding that officer did not have probable cause for detention and arrest
VIEW OPINION

Criminal law -- Dismissal -- Trial court erred by sua sponte dismissing case against defendant
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Vehicle stop -- Reasonable suspicion -- Trial court did not err in finding that officer had reasonable suspicion for traffic stop after observing illegal left turn on red light, but did not have reasonable suspicion to conduct DUI investigation based on odor of alcohol alone -- Officer's testimony concerning other indicia of impairment conflicted with police report and prior deposition testimony -- Order granting motion to suppress is affirmed
VIEW OPINION

Criminal law -- Possession of cannabis -- Search and seizure -- Stop -- Bicyclist -- Officer who observed defendant riding bicycle in opposite direction of traffic had probable cause for stop irrespective of fact that defendant's riding did not impede traffic -- Abandonment -- Where, upon being stopped and told to sit down, defendant crumpled cigarette pack, dropped it to ground, and partially sat on it, cigarette pack was abandoned for purposes of search and seizure analysis -- Order denying motion to suppress affirmed
VIEW OPINION

Insurance -- Attorney's fees -- Appellate fees are granted to insurer subject to trial court determining that insurer's proposal for settlement met statutory criteria
VIEW OPINION

Legislation -- Elections -- Reapportionment of congressional districts -- Challenge to constitutional validity of 2012 plan apportioning Florida's congressional districts under Fair District Amendments -- Drawing of districts with intent to benefit political party -- Remedial redistricting plan enacted by Legislature adequately addresses constitutional deficiencies found in prior final judgment declaring 2012 redistricting plan constitutionally invalid -- Special election under remedial map is not appropriate remedy under instructions -- 2014 elections to be held under map originally adopted in 2012
VIEW OPINION

Workers' compensation -- Torts -- Immunity -- Section 440.11, which provides that the Workers' Compensation Act is the exclusive remedy available to injured workers, their spouses, children and their estates for injuries or death on the job, does not provide a reasonable alternative to the tort remedy it supplanted -- Statute is unlawful, invalid, and unconstitutional
VIEW OPINION

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