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from Florida's Circuit and County Courts

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Dependent children -- Termination of parental rights -- Discovery -- Criminal investigation -- Mother who is preparing for termination proceeding based on incident in which she allegedly injured her child is entitled to discover criminal investigative report and witness statements regarding incident and to depose detective -- If state believed disclosure of information would compromise ongoing investigation or otherwise be harmful to public interest, its remedy was to seek protective order, not to instruct detective not to answer deposition questions or produce subpoenaed documents -- Fact that information may be exempt from disclosure to public does not affect mother's entitlement to information as party to termination proceeding
VIEW OPINION

Criminal law -- Counsel -- Waiver -- Trial court is prohibited by rule 3.111(d)(3) from accepting Faretta waiver where nature of child sexual assault crimes with which defendant is charged, if committed, are symptomatic of severe mental illness, pleadings filed by defendant raise questions about his mental state, and forensic psychologist who examined defendant concluded that he is not competent to represent himself -- Defendant's request to discharge public defender is denied
VIEW OPINION

Dependent children -- Child abuse -- Corporal punishment -- Where corporal punishment inflicted on child by father with mother's acquiescence resulted in significant and perhaps permanent bruising over multiple parts of child's body, child was abused within meaning of chapter 39 -- State failed to prove that siblings of abused child who were not found to have been abused are nonetheless at substantial risk of imminent harm -- Petition for dependency is granted only as to abused child
VIEW OPINION

Criminal law -- Murder -- Evidence -- Expert opinion -- Scientific evidence -- Daubert hearings on motions to exclude handwriting experts and expert on likelihood ratio calculations for DNA mixture profile generated by forensic unit are not necessary where handwriting analysis and DNA profiling are familiar, defendant failed to raise substantial scientific question as to reliability of handwriting comparison technique or DNA likelihood ratio calculations methodology, and court has been provided with adequate record from which to rule on motions -- Alleged deficiencies in analysis of abbreviated handprinted sample and factors contributing to analysis error rates are issues that go to credibility of evidence, rather than its admissibility, and may be addressed on cross-examination -- No merit to defendant's objection that DNA expert's testimony is premised on impermissible stacking of inferences -- Motions to exclude testimony are denied
VIEW OPINION

Insurance -- Homeowners -- Standing -- Assignment -- Company that provided water extraction service on homeowner's property has standing to bring action against insurer for unpaid balance of claim for company's services -- Anti-assignment provision in homeowner's policy does not apply to assignment after loss -- No merit to claim that all obligations owed by insurer to company have been satisfied by binding appraisal award -- Award resulting from appraisal demand made by homeowner after effective date of assignment is not binding on company -- Insurer's motion for summary judgment is denied
VIEW OPINION

Insurance -- Complaint -- Amendment -- Motion to amend complaint to add claims for first party bad faith and declaratory judgment is granted
VIEW OPINION

Consumer law -- Florida Deceptive and Unfair Trade Practices Act -- Attorneys -- Fourth amended complaint asserting cause of action under FDUTPA for damages based on defendants' alleged improper solicitation of legal clients is dismissed with prejudice where none of plaintiffs' alleged losses are actual damages recoverable under FDUTPA -- Injunctions -- Where plaintiffs have alleged that defendants' actions damage plaintiffs' goodwill, plaintiffs have pled sufficient facts to state cause of action for injunctive relief under FDUTPA irrespective of failure to plead actual damages -- Declaratory judgments -- Plaintiffs have not stated cause of action for declaratory relief where they failed to plead that they are in doubt as to existence or nonexistence of some right or status, and there is no practical need for requested declaration that defendants are violating FDUTPA by engaging in unfair competition that is prohibited by law and Rules Regulating the Florida Bar
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving with unlawful breath alcohol level -- Breath test -- Substantial compliance with administrative rules -- Where Department of Highway Safety and Motor Vehicles complied with administrative rules for breath test, and licensee did not submit any evidence in support of his theory that machine used to test his breath provided inaccurate results, breath test results were admissible -- Hearing -- Subpoenas -- Refusal to issue -- Error to deny licensee's request for subpoena duces tecum mandating breath test operator to provide copy of his initial breath test operator permit -- Remand for new hearing
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving with unlawful blood alcohol level -- Finding that licensee was issued notice of suspension is supported by competent substantial evidence where officer testified that he issued notice to licensee -- Lawfulness of stop -- Finding that officer had probable cause for stop was supported by competent substantial evidence where officer testified that he saw licensee run red light -- Officer had reasonable suspicion to detain licensee for DUI investigation, and licensee was not detained too long after issuing traffic citation where officer detected slight odor of alcohol emanating from vehicle when he initially stopped licensee and, later when he was issuing a citation, a stronger odor of alcohol coming from licensee, noticed that licensee's eyes were bloodshot and watery, and asked questions that led to licensee admitting to drinking alcohol -- Officer had reasonable suspicion to request performance of field sobriety exercises based on observation that licensee ran red light, odor of alcohol, and licensee's admission to drinking -- No error in refusing to issue subpoena duces tecum for breath test affidavit, certification and Intoxilyzer certification where officer testified that machine was inspected and calibrated on timely basis, and breath test technician testified that he was certified at time of test -- Introduction into evidence of documents that had no bearing on case was harmless error -- Lawfulness of arrest -- Finding of probable cause for arrest was wsupported by competent substantial evidence
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving with unlawful breath alcohol level -- Licensee under age 21 -- Hearing officer conducting informal review to determine whether license suspension for driving with unlawful breath alcohol level by licensee under age 21 was appropriate is not required to find that stop was lawful
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Lawfulness of arrest -- Actual physical control of vehicle -- Although one tire of vehicle was missing and another tire was flat, where record does not suggest that vehicle was incapable of movement except by outside agency, vehicle was not inoperable, and licensee's presence in driver's seat was sufficient to support conclusion that licensee was in actual physical control of vehicle -- Presence of passenger in vehicle does not preclude finding that licensee who was seated in driver's seat with keys in ignition was in actual physical control of vehicle -- Even if vehicle were inoperable at time officers arrived at scene, gouge in road created by vehicle's exposed wheel rim was circumstantial evidence that licensee drove vehicle prior to it becoming inoperable -- Assuming that hearing officer's use of unpromulgated forms requiring licensee to state disputed issues of fact and law and summarize anticipated testimony of witnesses was improper, error does not entitle licensee to certiorari relief where licensee has not established that use of forms resulted in material injury
VIEW OPINION

Municipal corporations -- Code enforcement -- Appeals -- Legality of search of property below not preserved for review where issue was not raised below -- Due process -- Notice -- Where Local Government Code Enforcement Act did not require that second hearing be conducted to impose fine after first hearing resulted in finding of violation of city code, notice of second hearing was not required to comply with Act's notice requirements -- Property owner was afforded due process where notice of second hearing was sent by certified mail and first class mail and was posted on property and in city's offices
VIEW OPINION

Municipal corporations -- Code enforcement -- No merit to argument that alleged violator could not be found in violation of city code where violation was remedied prior to code enforcement hearing where city code provides that if alleged violator is found to have been in violation and to have failed to bring property into compliance within time specified in notice of violation, he may be found in violation of code even if property has since been brought into compliance
VIEW OPINION

Licensing -- Driver's license -- Early reinstatement -- Denial -- Consumption of alcohol within 12 months -- Statutory requirement that licensee be “drug-free” for 12 months prior to reinstatement of driver's license also requires that licensee be alcohol-free for that period -- Hearing officer did not err in denying reinstatement to licensee who admitted to consuming alcohol on day of hearing -- DUI probation form stating “No Alcohol, No Bars, ET [early termination] after 6 months” refers to licensee's probation, not requirements for license reinstatement
VIEW OPINION

Torts -- Negligence -- Municipal corporations -- Sovereign immunity -- City is not insulated by sovereign immunity from liability for damage caused to plaintiff's vehicle by golf balls from city-operated golf driving range -- Design, operation and maintenance of range was operational level decision
VIEW OPINION

Insurance -- Garage policy -- Illusory policy -- Exclusion of coverage for theft of vehicles from unprotected lot did not render illusory a garage policy for used auto sales lot that insurer knew was an unprotected lot where the policy provided coverage for risks other than theft -- No merit to argument that insurer engaged in inequitable conduct by adding exclusion to policy just one day before issuance of policy where the same exclusion appeared in initial quote from insurer
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving with unlawful blood alcohol level -- Hearing -- Failure of subpoenaed witness to appear -- No merit to argument that hearing officer erred in failing to continue hearing to allow arresting officer to provide just cause for his failure to appear at hearing where subpoena was never served on officer, who died one week prior to issuance of subpoena, and licensee never requested continuance to attempt service because it would have been futile -- No merit to argument that licensee was denied due process because she was not afforded opportunity to confront arresting officer -- Right to confrontation does not apply to administrative license suspension proceedings
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Lawfulness of request to submit to breath test -- Where affidavit and reports prepared by arresting officer document clear indications that licensee was under influence of alcohol or chemical or controlled substance, fact that officer indicated on DUI supplement report that he did not detect odor of alcohol and marked “Indication of Drug Influence” and “Indication of Alcohol Influence” as unknown on arrest affidavit does not negate possibility that licensee was under influence of alcohol -- Finding that officer had probable cause to believe licensee was under influence of alcohol when officer requested that he submit to breath test was supported by competent substantial evidence
VIEW OPINION

Criminal law -- Obstructing or resisting officer without violence -- Lawful execution of legal duty -- Evidence -- 911 call -- No error in denying motion to exclude notes typed by dispatcher during 911 call reporting domestic battery where evidence was not hearsay offered to prove facts asserted in notes, and the only way jury could decide whether officers responding to call were engaged in lawful execution of legal duty when they ordered fleeing defendant to stop was to hear information given to officers -- No abuse of discretion in allowing testimony about police dispatch information of reported domestic battery where probative value of evidence was not substantially outweighed by danger of unfair prejudice
VIEW OPINION

Municipal corporations -- Zoning -- Variance -- Where staff report addressing criteria for variance specified in city code was entered into evidence, staff member testified about report, and special magistrate's order granting variance addressed criteria applicable to property, special magistrate complied with essential requirements of law and competent, substantial evidence supported decision to grant the variance
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Lawfulness of arrest -- Officer had probable cause for DUI arrest where licensee, who was stopped for speeding, exhibited strong odor of alcohol, slurred speech, bloodshot eyes and red cheeks -- Where licensee understood purpose of field sobriety exercises and was informed that he was required by law to submit to exercises, refusal to submit to exercises is permissible factor to be considered in determining probable cause for arrest even though licensee was not specifically advised that refusal could be used against him -- Use of revised prehearing forms not yet incorporated by reference in administrative rules and admission of uncertified and unauthenticated transcript of licensee's driving record into evidence did not amount to departure from essential requirements of law or deny licensee due process
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Absence of licensee's driver's license from record is not basis for relief from suspension where licensee did not challenge correctness of his identification at hearing, and his physical driver's license was not necessary to determine issues before hearing officer -- Licensee is not entitled to relief on claim that he was not issued notice of suspension where licensee's pleadings contradict that claim -- Licensee has shown no prejudice or deprivation of due process as result of officer's having given notice to jail at which licensee was booked rather than directly to licensee -- Hearing officer's use of new prehearing forms not yet incorporated by reference in administrative rule was not denial of due process or departure from essential requirements of law
VIEW OPINION

Criminal law -- Battery -- Jurors -- Voir dire -- No abuse of discretion in restricting defense from questioning prospective jurors regarding permissible touching -- Sentencing -- Vindictiveness -- Unexplained disparity between sentence in plea offer and ultimate sentence imposed raised presumption of vindictiveness , which was unrebutted, where judge did not initiate plea discussions, but departed from role of neutral arbiter by stating that she hoped defendant would not insist upon going to trial
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving with unlawful breath alcohol level -- Arrest affidavit -- Despite presence of text in arrest affidavit that was copied and pasted from another licensee's arrest affidavit, where other portions of affidavit accurately depict dates and times of licensee's arrest, observation period, and breath test, decision to upholdlicense suspension was supported by competent substantial evidence
VIEW OPINION

Criminal law -- Resisting officer without violence -- Sufficiency of evidence -- Direct/circumstantial evidence
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Lawfulness of stop and arrest -- Officer's observations of licensee speeding, drifting within his lane and failing to stop at red light before making right turn were sufficient to justify stop -- Officer had probable cause to believe licensee was driving under influence based on odor of alcohol, glassy bloodshot eyes, and poor performance on field sobriety exercises -- No merit to argument that hearing officer erred by refusing to strike evidence of licensee's refusal to continue field sobriety exercises -- Hearing officer was not required to explain or analyze his denial of licensee's motions
VIEW OPINION

Civil procedure -- Service of process -- Chief financial officer's service of process on motor vehicle service agreement company via email was sufficient -- Default -- Vacation -- Due diligence -- Abuse of discretion to deny motion to set aside default final judgment for lack of due diligence where motion was filed 14 days after defendant learned of default -- Tardy payment of reopen fee is not dispositive consideration regarding due diligence
VIEW OPINION

Criminal law -- Driving while license suspended -- No merit to claim that trial court erred in denying motion for judgment of acquittal in absence of evidence that defendant was driving or in actual physical control of vehicle where officer testified that she came into contact with defendant during traffic stop of vehicle he was operating -- Search and seizure -- Vehicle stop -- Court did not err in concluding that, despite not using tint meter to check defendant's windows prior to stop, officer had reasonable suspicion to stop defendant for window tint violation based on officer's knowledge and experience
VIEW OPINION

Criminal law -- Driving while license suspended -- Judgment of acquittal -- Denial -- Appeals -- Where defendant never obtained ruling from trial court on second motion for judgment of acquittal, issue was not preserved for appeal
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Vehicle stop -- Trooper who observed defendant's vehicle weave in and out of lane while traveling at very low speed and make illegal and unsafe lane change had authority to stop vehicle and ask defendant to exit vehicle -- Where trooper observed that defendant was disoriented and had difficulty standing, and defendant admitted that she had ingested prescription pain medications, trooper had reasonable suspicion to conduct DUI investigation and probable cause for arrest -- Error to grant motion to suppress
VIEW OPINION

Criminal law -- Driving under influence with injury and property damage -- Evidence -- Loss or destruction -- Videotape -- Dismissal of charge was too harsh a sanction for deputy's failure to properly record defendant's performance of field sobriety exercises and to follow standard operating procedure which required him to review portion of recording immediately after completed to ensure that proper recording occurred where trial court concluded that defendant was prejudiced by loss of evidence but that deputy did not act in bad faith -- Remand with instructions to consider which sanction short of dismissal is appropriate
VIEW OPINION

Criminal law -- Loitering and prowling -- Search and seizure -- Trial court erred in suppressing truck and spool of fencing in truck bed found near defendant and two companions inside closed construction site at 3:00 a.m. where truck and spool were in plain view -- Suppression of statements made by defendant is moot issue where defendant did not give any statements other than providing his identity -- Officers' conduct in approaching defendant and asking for identification was consensual encounter -- Error to suppress identity
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Arrest -- Where defendant was unconscious behind wheel of running vehicle stopped at green light, possible medical emergency and need to protect other people in area justified officer putting vehicle into park, turning off ignition, and removing key -- Further, police action was justified as investigatory stop -- Removal of ignition key did not transform interaction into arrest requiring probable cause -- Error to grant motion to suppress
VIEW OPINION

Criminal law -- Battery -- Jury instructions -- Appeals -- Defendant who did not object to jury instruction after it was given and before jury retired to deliberate failed to preserve issue for appeal -- Any error in giving instruction regarding neighbor's justifiable use of non-deadly force to stop defendant's battery on his father is not fundamental where there is sufficient record evidence to sustain verdict -- Even if claimed error were preserved for appeal or deemed to be fundamental error permitting review, trial court did not abuse discretion in giving instruction where instruction related to issues concerning evidence received at trial, and there is nothing in record to suggest that jury was misled or confused by instruction or that instruction was reasonably calculated to confuse or mislead jury
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Arrest -- Probablye case -- Order granting motion to suppress is affirmed where officer stopped defendant after observing him speeding, tailgating and weaving through traffic and subsequently detected odor of alcohol and observed that defendant had red watery eyes, flushed face and lack of fluid dexterity in exiting vehicle, but there was no evidence that officer initiated or conducted field sobriety exercises prior to arrest
VIEW OPINION

Criminal law -- Driving under influence with property damage -- Evidence -- Hospital records -- No abuse of discretion in excluding records from defendant's hospitalization on night of accident, which were offered by defense in support of argument that defendant was not driving while impaired by alcohol but was suffering from hypoglycemia due to diabetes, where trial court found that, in absence of nurse or doctor to explain contents, records were more prejudicial than probative and would mislead jury
VIEW OPINION

Criminal law -- Driving under influence -- Evidence -- Invalid breath samples -- No abuse of discretion in admitting testimony that defendant gave three “volume not met” breath samples after giving one valid breath sample -- Defendant's failure to follow breath test instructions was indication of impairment -- Defendant was not prejudiced by breath sample evidence where neither party argued that invalid samples indicated consciousness of guilt, and jury never learned results of test on valid breath sample -- Even if admission of breath sample evidence was error, defendant would not be entitled to relief where overwhelming evidence of guilt would have assured that result of trial would not have been different if evidence had been excluded
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Hearing -- Failure of subpoenaed witness to appear -- Licensee was not denied due process by hearing officer's failure to invalidate suspension when two subpoenaed officers failed to appear at hearing on two occasions where licensee failed to seek enforcement of subpoenas
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Lawfulness of stop -- No error in finding that stop for no tag light was lawful -- No merit to argument that demonstrating probable cause to stop vehicle for having no tag light requires evidence that tag is not visible from 50 feet away
VIEW OPINION

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