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New Releases
from Florida's Circuit and County Courts

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Insurance -- Personal injury protection -- Small claims -- Summary disposition -- On appeal of summary disposition of small claims case, issue is not whether trial court erred by finding absence of genuine issue of material fact, but whether trial court abused its discretion by finding there was no triable issue -- No merit to argument that medical provider's affidavit in support of reasonableness of medical bill is insufficient to support summary disposition because it fails to address every factor mentioned in section 627.736(5)(a) -- Statute does not mandate that consideration be given to every factor -- No error in rejecting affidavit of litigation adjuster filed in opposition to summary disposition where affidavit was conclusory and self-serving -- Further, trial court did not err in determining that litigation adjuster lacked sufficient personal knowledge to render opinion on reasonableness of charges
VIEW OPINION

Landlord-tenant -- Eviction -- Notice -- Foreclosed property -- Bona fide tenants in possession of foreclosed property under valid lease must be given 90 days notice to vacate, which becomes effective on date of sale of property to purchaser who intends to live on property as primary residence -- Writ of possession is quashed
VIEW OPINION

Condominiums -- Action against upstairs unit owner and condominium association for water damage caused by water leaking into unit below -- Because free-standing wall in interior of upstairs unit in which leaking water pipe was located was not common element, and declaration of condominiums provides that unit owners are responsible for any damage to another unit as result of leaking plumbing located within or originating from their unit, upstairs unit owner is liable for damages caused by leak -- Condominium association did not owe duty of care because it had no duty to maintain pipe that was not common element
VIEW OPINION

Criminal law -- Driving under influence -- Scientific evidence -- Proposed defense witness is not qualified as expert on effects of mouth alcohol on breath tests of denture wearers where witness is not forensic toxicologist and claims expertise based on testing one person, reading articles, and attending few seminars -- Further, proposed witness's opinions are not reliable and demonstrate extreme analytical gap
VIEW OPINION

Criminal law -- Counsel -- Waiver -- Where defendant categorically refuses both to be represented by counsel and to represent himself, and defendant's speech and behavior are so wildly bizarre as to lead to conclusion that he suffers from severe mental illness within meaning of rule 3.111(d)(3), trial court is prohibited by rule from accepting Faretta waiver -- Counsel is appointed over defendant's objection
VIEW OPINION

Criminal law -- Second degree murder -- Depraved mind -- Motion to grant post-trial judgment of acquittal as to second degree murder and sentence defendant for manslaughter instead is denied where defendant made statements prior to and after stabbing indicating that during encounter he developed strong desire to fatally injure victim, and evidence demonstrates that after initially running away from encounter with victim defendant armed himself with scissors and turned to re-engage victim -- Motion for judgment of acquittal on ground that defendant's stipulation as to identity of victim was not entered into record is denied where defendant stipulated as to identity, state accepted stipulation, and jury was made aware of stipulation through witnesses' testimony -- Discovery violations do not warrant new trial where violations did not prejudice defense -- Jurors -- Fact that media reporter video recorded venire members as they entered courtroom does not merit new trial where venire members were assured that reporter only recorded their feet, and parties had opportunity to question venire members about effect of video recording and challenge venire members who might have been negatively affected -- Potential juror's comment that she would want and expect defendant to testify on his own behalf and judge's statement that each juror must decide individually whether state has met burden of proof without mention of duty to deliberate do not require new trial where judge addressed juror's comment, any juror who indicated he or she could not follow judge's instructions was dismissed, judge corrected own erroneous statement, and defendant was able to voir dire jurors on statements -- No merit to argument that defendant was denied fair jury and fair trial by use of traditional jury box jury selection method, which prevented defendant from knowing identity of jurors who would replace successfully challenged jurors -- Even if use of traditional jury box method were error, defendant's claims that use of that method prevented him from being able to ensure that African-American jurors were seated and denied him opportunity to use final peremptory challenge do not establish prejudice -- Denial of request for additional peremptory challenges is not reversible error where defendant had not exhausted his peremptory challenges -- Allowing rebuttal witness to testify regarding defendant's pre-stabbing statements was not error where testimony rebutted defense witnesses' claims that they did not hear defendant make any statements -- No error in allowing state to introduce two prior consistent statements made by rebuttal witness where on cross-examination defense counsel accused witness of having recently fabricated her testimony -- Choice to read jury instructions prior to closing argument was wholly within discretion of trial court
VIEW OPINION

Insurance -- Uninsured motorist -- Complaint -- Amendment -- Motion to amend complaint to add count for bad faith handling of UM claim and action for declaratory judgment seeking to establish plaintiff's total damages arising from accident is granted, but bad faith claim is stayed until underlying UM claim has been resolved
VIEW OPINION

Criminal law -- Search and seizure -- Vehicle stop -- Traffic infraction -- Obscured tag -- Officer did not have probable cause to stop defendant for having obscured tag where tag was obscured by bike rack and bike rack straps external to tag -- In absence of probable cause to believe defendant committed traffic infraction or reasonable suspicion of criminal activity prior to stop, motion to suppress is granted
VIEW OPINION

Attorney's fees -- Prevailing party -- Voluntary dismissal -- Defendant who had not yet been required to file responsive pleading was not required to specifically plead request for attorney's fees -- Motion to quash was not a responsive pleading
VIEW OPINION

Criminal law -- Search and seizure -- Vehicle stop -- Seatbelt violation -- Motion to suppress marijuana found in defendant's vehicle following stop for seatbelt violation is granted where there are significant contradictions in deputy's testimony about his observations of interior of defendant's vehicle as it was illuminated by headlights of oncoming truck
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving under influence -- Hearing -- Cross-examination -- Licensee failed to demonstrate that due process violation resulted when hearing officer prevented cross-examination of witness where licensee did not explain relevance of questions and did not make proffer of anticipated testimony -- Lawfulness of arrest -- Officer had probable cause to believe licensee was DUI where licensee tried to drive away from accident investigation and almost hit officer as she did so, became belligerent with officer, had glassy red eyes and odor of alcohol, nearly fell down when she exited vehicle, and did badly on field sobriety exercises
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Vehicle stop -- Tip -- Information about defendant's erratic and dangerous driving provided to sheriff's office by citizen informant was sufficient to establish reasonable suspicion for vehicle stop -- Where sheriff's 911 operator relayed informant's tip to police department dispatcher when defendant entered department's geographical jurisdiction, all information received by 911 operator was imputed by fellow officer rule to police officer who conducted stop -- 911 operator does not have to be sworn law enforcement officer for operator's knowledge to be imputed to responding officers under fellow officer rule
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving with unlawful breath alcohol level -- Lawfulness of detention -- Trooper's initial encounter with licensee in response to road ranger's report of unresponsive female seated in driver's seat of running vehicle on shoulder of turnpike was consensual encounter for well-being check -- When licensee remained unresponsive despite repeated knocking on vehicle window and appeared disoriented when she awoke, trooper could lawfully request that licensee step out of vehicle to continue well-being check -- Breath test -- Licensee was not denied due process by hearing officer's failure to set aside suspension based on alleged defects in Intoxilyzer approval process -- Challenges to approval process are beyond scope of formal driver's license suspension review proceeding -- Licensee was not deprived of due process by failure to issue subpoenas for persons identified in annual inspection report where licensee had no right to request subpoenas for persons named in report that is not among documents required to be submitted by law enforcement
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving with unlawful breath alcohol level -- Lawfulness of arrest -- Actual physical control of vehicle -- Hearing officer's finding that there was probable cause to believe licensee was driving or in actual physical control of vehicle is supported by evidence that licensee was only person at scene of single-vehicle crash, licensee was seen entering and sitting in driver's seat of crashed vehicle, and crashed vehicle was company-owned vehicle assigned to licensee -- Finding that there was probable cause for DUI investigation is supported by evidence that crash was caused by driving into concrete wall and officers' observations that licensee had orbital sway, slurred speech, odor of alcohol, and glassy eyes -- Licensee's poor performance on field sobriety exercises coupled with noted indicators of impairment provided probable cause for arrest and request for breath test
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Arrest affidavit -- Notarization -- No merit to argument that arrest affidavit and statement were improperly notarized where signatures and badge numbers of officers on documents, as well as locations of signatures and badge numbers, support finding that documents were sworn and attested to before law enforcement officer -- Fact that arrest affidavit is dated over two weeks after date of arrest indicates only that affidavit was signed on later date and does not reduce merit of affidavit -- Although record is silent as to whether licensee, who provided two breath samples of insufficient volume, was re-instructed and provided opportunity to provide third sample, breath alcohol test affidavit stating that breath test was administered in accordance with administrative rule provides competent substantial evidence to support finding that there was lawful and valid refusal
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving with unlawful breath alcohol level -- Hearing -- Failure of subpoenaed witness to appear -- Licensee was not denied due process by hearing officer's failure to invalidate suspension when trooper failed to appear at hearing on three occasions where licensee decided not to seek enforcement of subpoena -- Breath test -- Licensee was not denied due process by hearing officer's failure to set aside suspension based on alleged defects in Intoxilyzer approval process -- Challenges to approval process are beyond scope of formal driver's license suspension review proceeding -- Licensee was not deprived of due process by failure to issue subpoenas for persons identified in annual inspection report -- Licensee had no right to request subpoenas for persons named in report that was not among documents required to be submitted by law enforcement
VIEW OPINION

Criminal law -- Driving without valid driver's license -- Resisting officer without violence -- Where only evidence that defendant did not have valid driver's license was deputy's inadmissible hearsay testimony regarding contents of DHSMV database, judgment and sentence for driving without valid license is reversed -- Where deputy testified that he saw face of driver who fled from traffic stop when driver turned as he scaled fence, and deputy identified defendant as that driver, there was competent substantial evidence from which jury could conclude that defendant was guilty of resisting officer without violence
VIEW OPINION

Jurisdiction -- County court -- Amount in controversy -- Aggregation of claims -- Where two counts of complaint involve two separate and distinct credit cards and accounts governed by independent card member agreements, and cardholder was issued separate and distinct billing statements for each credit card account, case law does not permit aggregation of claims to confer jurisdiction on circuit court
VIEW OPINION

Criminal law -- Assault -- Evidence -- Hearsay -- Prior consistent statements of domestic violence victims -- Detective's testimony -- Harmless error
VIEW OPINION

Liens -- Real property -- Homestead -- Certiorari challenge to county court order authorizing sheriff to proceed with levy sale on property alleged to be homestead -- Jurisdiction -- No merit to argument that county court exceeded its authority because order to proceed with sale implicitly decided petitioner's homestead status where court accepted property's current homestead status as true but found that homestead status did not affect levy sale since judgment lien was recorded against property prior to property being deeded to petitioner and acquiring homestead status -- No merit to argument that order is writ of mandamus that is beyond county court's jurisdiction to issue where order merely authorizes, and does not compel, sheriff to proceed with sale
VIEW OPINION

Insurance -- Attorney's fees -- Offer of judgment -- No abuse of discretion in finding that insurer had good faith basis for making nominal offer of judgment where, at time of offer, insurer had medical report and peer review as support for belief that reasonable, related and necessary amount of bills was below insured's deductible -- Fact that offer of judgment was made prior to insurer amending pleadings to include affirmative defense of no bona fide dispute on which it ultimately prevailed does not preclude award of attorney's fees where insured, who had not been billed by medical provider prior to expiration of statute of limitations, was aware at all times that there was no bona fide dispute justifying his action
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Vehicle stop -- Deputy who observed defendant swerving within his lane and noticeably altering his speed had founded suspicion to make brief investigatory stop to determine if defendant was sick, tired, injured or intoxicated -- No merit to argument that driver's conduct must be erratic before officer can make stop or conduct DUI investigation
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- No merit to argument that hearing officer erred in determining that documentary evidence was more credible than licensee's testimony and in failing to consider witnesses who corroborated licensee's statements -- It is hearing officer's responsibility to weigh evidence and assess credibilit -- Documents provided competent substantial evidence for hearing officer's determination to uphold license suspension
VIEW OPINION

Licensing -- Driver's license -- Hardship license -- Denial -- Consumption of alcohol within twelve months -- Department of Highway Safety and Motor Vehicles' interpretation of statutory requirement that applicant for hardship license be drug-free for twelve months preceding reinstatement to mean that applicant must also be alcohol-free for that twelve-month period is reasonable and not clearly erroneous -- Appellate court defers to that interpretation
VIEW OPINION

Criminal law -- Driving under influence -- Evidence -- Breath test -- Officers' technically imprecise comments on administrative procedures that result from refusal to submit to breath test and silence as to certain subjects do not constitute misstatement of law of magnitude that warrants suppression of test results -- Record does not support claim that officers told defendant that he would not receive temporary driving permit if he refused breath test
VIEW OPINION

Criminal law -- Battery -- No error in denying defense motion for continuance where defendant previously demanded speedy trial and did not waive speedy trial right -- Defendant's acts of punching and kicking and then shooting victim were separate and distinct acts that did not constitute continuous criminal episode where defendant punched and kicked victim in roadway before going into house and, after passage of significant temporal break, re-exited house and shot victim from side of house -- Where state brought one battery count for two distinct acts, trial court erred in not including special interrogatory on verdict form to ensure jury rendered unanimous verdict regarding which act constituted battery -- New trial required
VIEW OPINION

Landlord-tenant -- Attorney's fees -- Appellate
VIEW OPINION

Insurance -- Attorney's fees -- Appellate -- Proposal for settlement
VIEW OPINION

Criminal law -- Battery -- Witnesses -- Defendant who failed to make contemporaneous objection to ruling allowing state to treat witness as hostile failed to preserve alleged error for appeal -- Even if issue were preserved, ruling was not erroneous
VIEW OPINION

Appeals -- Absence of transcript -- Affirmance of lower court ruling
VIEW OPINION

Licensing -- Driver's license -- Hardship license -- Cancellation of license and termination from Special Services Program based on continued use of alcohol, as evidenced by positive interlock reading -- Ignition interlock device does not qualify as testing device as set forth in Rule 10.031(3), F.A.C., and results cannot be considered under this provision for purposes of licenses's termination from an SSS Program based on noncompliance -- Single blow into ignition interlock device was not violation as contemplated by Rule 15A-9.003(24) -- Licensee was not required to submit to retest under circumstance in which vehicle was stationary and not operating -- Evidence -- Event Log Summary was uncorroborated hearsay evidence and legally insufficient, standing alone, to support finding that license violated terms of SSS Program -- Department of Highway Safety and Motor Vehicles was required by rule to review record to determine whether there was preponderance of evidence to support recommendations of SSS Programs that license be cancelled -- Department's failure to comply with essential requirements of law resulted in due process violation -- Orders cancelling and revoking license quashed
VIEW OPINION

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