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from Florida's Circuit and County Courts

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Criminal law -- Bail bond -- Remission -- Bail bondsman's motion for remission of bond for deceased defendant is denied -- Section 903.28 requires bondsman to surrender or apprehend defendant as condition precedent to obtaining remission, and defendant was not surrendered or apprehended prior to his death -- Bondsman is not entitled to have bond forfeiture set aside under section 903.26(5)(a) on ground that death made it impossible for defendant to appear where bondsman failed to request relief during applicable 60-day statute of limitations

Mortgage foreclosure -- Verification of complaint -- Complaint which was verified by someone other than claimant dismissed without prejudice

Criminal law -- Post conviction relief -- Counsel -- Ineffectiveness -- Trial counsel was ineffective for failing to advise defendant that he was facing mandatory life sentence without parole as a prison releasee reoffender before defendant rejected plea offer of 17 years' imprisonment -- Although motion was not timely filed and did not fall under any of the exceptions of rule 3.850(b)(1-3), it would be manifest injustice to deny relief based upon procedural bars where defendant has otherwise raised a valid, cognizable claim of ineffective assistance of counsel and is entitled to relief -- Sentence vacated -- Defendant resented to 17 years in prison with credit for time served

Costs -- Plaintiff's motion to tax costs of special magistrate against defendant and defendant's counsel is granted -- Defense counsel's conduct during depositions constituted bad faith, and it is clear that his behavior necessitated the appointment of a special master to attend further depositions and ensure that depositions proceed in orderly, efficiently, and judicious manner, thus causing those expenses to be incurred

Criminal law -- Pretrial detention -- Reinstatement of bond denied based on finding that there is probable cause to believe defendant, while on pretrial release, engaged in serious, violent crime which resulted in death of co-perpetrator -- Release of defendant would be threat to community, and there are no conditions of pretrial that can protect community from defendant

Criminal law -- Sexual battery on child 12 years of age or older but less than 18 by person in familial or custodial authority -- Evidence -- Intercepted communications -- Recording made on cellphone which was placed by victim's mother near bed in bedroom shared by mother and defendant/boyfriend -- Audio recording of sounds the bed made during alleged sexual encounter between defendant and victim is admissible at trial -- Audio recording of dialogue between defendant and victim and sounds of intimacy between the two is not admissible -- Statements of defendant -- Statements made by defendant during controlled call placed by mother were not “fruit of the poisonous tree” that were derived from illicit audio recording, as improper recording did not serve as basis for detective's authorization of the controlled call -- Statements voluntarily made to detective by victim served as independent source leading to controlled call, and statute allowed mother, acting under law enforcement's direction, to intercept a communication for the purpose of obtaining evidence of a criminal act where mother herself was party to the communication -- Neither mother's reference to audio recording nor her reference to a non-existent video recording changes result under circumstances -- Law enforcement's interview with defendant was sufficiently separated from illicit cellphone recording to render it admissible -- However, all statements made by defendant during this interview prior to Miranda warning may not be admitted unless requested by defendant -- Hearsay -- Exceptions -- Statements of child victim -- Statements made by victim to her mother fall within hearsay exception applicable to statements made by child victim of sexual offense -- Statements made by victim to detective are inadmissible, given detective's use of leading questions and other circumstances undermining reliability of victim's statements -- Statements made by victim in retelling her story to nurse and deputy during sexual assault interview at hospital, which occurred very soon after interview with detective, is inadmissible

Estates -- Action by son of deceased mother against siblings, guardian of mother's property and personal representative of mother's estate alleging fraud and breach of contract and seeking declaratory judgment with respect to plaintiff's ownership of real property -- Limitation of actions -- All claims based on contracts, fraud and real property are barred by statutes of limitations -- Claims are also barred by res judicata/collateral estoppel where core allegations and claims have all been raised and previously determined in numerous actions brought unsuccessfully by plaintiff against his siblings and related parties and in appeals of those actions -- Fraud -- Plaintiff has failed to establish cause of action for fraud where his pleadings and presentation at trial failed to connect any alleged injury to plaintiff to any false statement made by defendants that he relied upon to his detriment -- Contracts -- Plaintiff has failed to establish cause of action for breach of agreement establishing siblings' 5% ownership interest in restaurant against sibling who wrote $20,000 check to herself where he failed to prove that source of funds was restaurant's account or that funds were not used for restaurant -- Plaintiff also failed to establish that sibling who received half of payment from eminent domain case involving restaurant property breached agreement regarding restaurant ownership where sibling had individual interest in property that he jointly owned with deceased father -- No merit to claim that properties that were part of father's estate were not lawfully distributed and released by personal representative where representative's authority was not ended until after properties were conveyed -- Plaintiff failed to present legally sufficient evidence to support claim that he had not received quarterly payments due under stipulation of settlement -- Declaratory actions -- Court declines to enter declaration that, because his siblings signed a disclaimer of interest in father's estate to allow mother to inherit all of that estate and he did not sign disclaimer, plaintiff is sole beneficiary and entitled to all siblings' interests in both father's and mother's estates -- Plaintiff ratified intent of waiver by signing subsequent agreement on distribution -- Even if plaintiff had not ratified waiver, he would only have taken his share of father's estate, not half of father's estate and all of mother's estate -- Further, plaintiff's claim fails to consider interests that grandchildren may have in estates -- Request to quiet title is denied where plaintiff has failed to present any evidence to establish validity of his title and invalidity of siblings' or estates' title

Legislature -- Continuance of court proceedings when party's counsel is member of legislature -- “Notice of Continuance stricken as unauthorized -- Correct procedure is to file notice of unavailability due to legislative duties, as authorized under statute -- Motion to reschedule trial denied, as scheduled trial date does not conflict with counsel's legislative duties -- Pretrial conference to be rescheduled to accommodate legislative duties

Criminal law -- Restitution -- Damages to vehicle as result of automobile accident were not directly or indirectly related to defendant's conviction for leaving scene of accident -- Trial court erred in ordering defendant to make restitution for these damages
MARIE ANTOINETTE WILLIAMS, Appellant, v. STATE OF FLORIDA, Appellee. Circuit Court, 5th Judicial Circuit (Appellate) in and for Marion County.

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Reasonableness of charges -- Insurer did not waive opportunity to litigate reasonableness of provider's charge for MRI when its adjuster used computerized auto-pay process
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. ALL FAMILY CLINIC OF DAYTONA BEACH, INC., etc., Appellee. Circuit Court, 7th Judicial Circuit in and for Volusia County.

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Insurer who based its payment to provider on statutory fee schedule, although insurance policy did not give notice of insurer's election to use fee schedule, was not precluded from litigating reasonableness of provider's bill for MRI -- Opposing affidavits submitted by provider and insurer raised genuine issue of material fact with respect to reasonableness of bill
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. PAN AM DIAGNOSTIC SERVICES, INC., a/a/o Jean Alexandre, Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County.

Criminal law -- Driving under influence -- Defendant entitled to new trial based on series of prosecutorial misstatements and inappropriate remarks which, in the aggregate, may have misled or confused jury concerning burden of proof -- Under particular circumstances of instant case, trial court did not abuse its discretion by denying mistrial based on statements which may have misled jury to conclude that FSEs are scientifically reliable indicators of intoxication -- Defense counsel contributed to possible confusion and complained-of harm, and prosecutor's improper comments were not of such magnitude as to warrant mistrial -- However, cumulative effect of prosecutor's improper remarks during closing argument shifting burden of proof to defendant require that conviction be vacated -- Prosecutor's comments were not fair comments on defendant's theory of the case, and did not fall within the bounds of an invited response to defendant's alternative explanation for his erratic behavior
FELIPE MORENO, Appellant, v. STATE OF FLORIDA, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County.

Civil procedure -- No error in dismissing complaint against individual defendants, “doing business as” a company managed by the individuals where plaintiff sought recovery for injuries caused by the company -- Trial court erred by dismissing complaint with prejudice without affording plaintiff opportunity to plead cause of action against company
MINERVA MARIE MENDEZ, Appellant, v. ELIZABETH ARAUJO d/b/a CONSIGNED COUTURE, and ALFREDO ARAUJO d/b/a CONSIGNED COUTURE, Appellees. Circuit Court, 15th Judicial Circuit (Appellate) in and for Palm Beach County, Civil Division AY.

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Hearing officer's finding that licensee refused to submit to breath test incident to a lawful arrest was not supported by competent, substantial evidence where evidence was in conflict as to whether breath test was requested after licensee was arrested
MATTHEW MITCHELL, Petitioner, v. THE STATE OF FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent. Circuit Court, 15th Judicial Circuit (Appellate) in and for Palm Beach County, Civil Division.

Criminal law -- Indecent exposure -- New trial required where defendant was tried without jury and no valid waiver of right to jury trial appears in record -- Defendant was in “public place” within meaning of indecent exposure statute when female nurse observed him masturbating and waiving at her where defendant was in dormitory area of county jail in another man's cell at a time when inmates were allowed to walk freely around the dormitory area, open to view of both inmates and authorized personnel
MICHAEL MANN, Appellant, v. STATE OF FLORIDA, Appellee. Circuit Court, 15th Judicial Circuit (Appellate) in and for Palm Beach County, Criminal Division.

Landlord-tenant -- Eviction -- Default -- Appeals -- Appeal not rendered moot by fact that tenant no longer resides in leased premises -- Trial court erred in not granting evidentiary hearing on tenant's motion to set aside default alleging that landlord misrepresented to court that tenant had not filed motion for rent determination when tenant had filed letter stating that she would like to file a motion for hearing on rent determination -- Tenant's letter, filed pro se and liberally construed, operated as legitimate rent determination motion where letter stated reasons why tenant challenged rent amount and requested hearing -- Because tenant filed legitimate and timely rent determination motion, landlord was not entitled to immediate default
SHANNON DANIELS, Appellant-Defendant, v. MIAMI BEVERLY, LLC, Appellee-Plaintiff. Circuit court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County.

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