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New Releases
from Florida's Circuit and County Courts

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Criminal law -- Search and seizure -- Vehicle trunk -- Protective sweep -- Warrantless search of trunk of vehicle driven by suspects in home invasion robbery was not lawful protective sweep where officers did not have reasonable belief that trunk harbored person posing danger to officers -- Exceptions to “fruit of poisonous tree” doctrine are not applicable -- Motion to suppress is granted
VIEW OPINION

Mortgage foreclosure -- Evidence -- Hearsay -- Exceptions -- Business records -- Testimony of witness was sufficient to lay foundation for admission of records, including acceleration letter, under business records exception to hearsay rule where witness's testimony demonstrated that she was well enough acquainted with usual business practices and activities to testify about making of records -- Condition precedent -- Pursuant to term of mortgage providing that notices are deemed to have been given when mailed by first class mail, acceleration letter sent by certified mail was deemed given when mailed -- Acceleration letter advised mortgagors of all required particulars -- No merit to argument that mortgagee was required to present evidence of all payment history back to initial payment date -- Compliance with requirement of Florida Consumer Collection Practices Act that assignee of consumer debt give debtor notice of assignment at least thirty days before any action to collect debt does not create condition precedent to filing foreclosure action
VIEW OPINION

Criminal law -- Speedy trial -- Continuance -- Inexcusable delay in discovery -- Motion for state-charged continuance is denied where defense learned of failure of discovery that necessitated continuance two months before end of natural speedy trial period, discovery was provided in ample time to be used effectively by defense, and only prejudice to defense is prejudice of taking defense continuance and losing 175-day natural speedy trial period
VIEW OPINION

Criminal law -- Speedy trial -- Pending motions to suppress were constructively abandoned by filing of speedy trial demand
VIEW OPINION

Mediation -- Failure to attend -- Sanctions -- Where defendant failed to attend court-ordered mediation or pay sanction imposed for his non-attendance, defendant's answer is stricken and final judgment is entered in favor of plaintiff
VIEW OPINION

Criminal law -- Traveling to seduce, solicit or entice child to commit sex act -- Use of computer to seduce, solicit or entice child to commit sex act -- Entrapment -- Defendant who made arrangements to meet and have sex with fictitious girl portrayed online by law enforcement was entrapped as matter of law where law enforcement pretending to be girl induced defendant to commit offenses by posting fictitious profile on adult dating website, sending defendant pictures of adult woman partially undressed in hotel room and only thereafter advising defendant that girl allegedly portrayed in pictures was 14 years old; and repeatedly initiating conversations and steering them toward discussions of sex, feigning anger when defendant hesitated to meet, and turning innocuous comments into sexual innuendo -- Defendant, who was not interested in sexual relationship with minor when he registered on website and only considered sexual relationship with girl after repeated conversations over span of 12 days, was not predisposed to commit crimes -- Motion to dismiss is granted
VIEW OPINION

Insurance -- Discovery -- Documents -- Insurer may not use third-party to obtain records
VIEW OPINION

Dissolution of marriage -- Marital settlement agreement providing for former wife to receive 50% of former husband's disposable military retirement pay -- Motion to enforce and/or for contempt filed after husband was switched from one compensation program to another program, resulting in decrease in payments to wife -- Withdrawal of motion upon determination that husband had not purposely transition to new program to interfere with payouts -- Attorney's fees -- Justiciable issues -- Former husband's motion for attorney's fees is denied where former wife did not have ability to inspect evidence until shortly before hearing, at which time she withdrew motion
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Hearing -- Witnesses in formal review hearing may testify by telephone -- Hearing officer did not err in considering uncertified driving record and statements made in crash report
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving under influence -- Lawfulness of stop -- Officer acting outside jurisdiction -- Where officer observed vehicle speeding within his jurisdiction, officer briefly lost sight of vehicle as he drove over bridge and into adjacent jurisdiction, and officer regained sight of vehicle outside of jurisdiction and initiated stop, evidence supports finding that stop was made while in fresh pursuit -- Because lawfulness of stop does not depend on mutual aid agreement, any error in admission of agreement into evidence is not material -- Hearing officer -- Departure from neutrality -- Hearing officer's omission of licensee and her witness from list of persons present at hearing does not establish departure from neutrality -- Subpoenas -- Refusal to issue subpoenas duces tecum for breath test operator's certification and renewal documents did not deprive licensee of due process where hearing officer did issue subpoena requiring production of most recent certification renewal document
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Hearing -- Licensee was not denied due process by admission of uncertified driving record into evidence -- Hearing officer -- Departure from neutrality -- Memorandum from bureau chief instructing hearing officers that they are not obligated to determine lawfulness of arrest when driver has submitted to breath test did not affect impartiality of hearing officer in hearing regarding license suspension for refusal to submit to breath test -- Transcript reveals that hearing officer considered lawfulness of licensee's arrest
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Lawfulness of detention and arrest -- Officers who observed that licensee had odor of alcohol, watery and bloodshot eyes, unsteady stance, slurred speech and mood swings had reasonable suspicion to detain licensee while awaiting DUI investigation and probable cause for arrest -- Detention did not turn into de facto arrest where officers placed licensee uncuffed in back of patrol vehicle to prevent her from leaving area or interfering with carjacking investigation by warning suspect, licensee was detained only length of time required for DUI unit to arrive and conduct investigation, and licensee was transported to nearby area in same parking lot to safely conduct DUI investigation
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving with unlawful breath/blood alcohol level -- Lawfulness of stop -- Founded suspicion, not probable cause, is correct standard for determining lawfulness of DUI stop -- Where deputy responding to tip regarding erratic driving observed licensee speeding up and slowing down, crossing white outside line once and crossing lane markers twice, deputy had reasonable suspicion of impairment warranting stop -- Hearing -- Refusal to issue subpoena -- Hearing officer's denial of request for subpoena duces tecum seeking initial certification of breath test operator did not violate due process where hearing officer approved subsequent request for subpoena duces tecum seeking operator's most recent certification renewal
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving with unlawful breath alcohol level -- Hearing -- Subpoenas -- Refusal to issue -- Hearing officer's refusal to issue subpoenas duces tecum for breath test operator's certification and renewal documents denied licensee due process -- Hearing officer denied licensee due process by rejecting request that Intoxilyzer maintenance and inspection documents be admitted into evidence because officer providing documents did not want them admitted -- Final order of license suspension is quashed
VIEW OPINION

Criminal law -- Domestic violence injunction -- Violation -- Evidence -- Hearsay -- Exceptions -- No abuse of discretion in denying motion in limine seeking to exclude photographs of text messages on cell phone of defendant's wife where wife testified that messages came from area code where defendant has family, messages contain facts that only defendant would know and referred to her as “wife,” she received threatening messages from same number after police officer warned defendant to cease contact, and photographs accurately depict messages on her phone -- Where photographs of messages were properly authenticated, they constitute admissions by party opponent and are admissible hearsay -- No abuse of discretion in admitting voicemails from wife's phone into evidence where wife testified that she immediately recognized defendant's voice when she received voicemails, and officer testified that upon arresting defendant she was certain he was same person she heard on voicemails
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving under influence -- Breath test -- Substantial compliance with administrative rules -- Breath test operator permit -- No error in failing to invalidate suspension based on record reflecting that breath test operator's last certification was more than six years prior to licensee's breath test -- It was within prerogative of hearing officer to accept operator's testimony that he was properly certified
VIEW OPINION

Landlord-tenant -- Eviction -- Attorney's fees -- Trial court erred in offsetting award of attorney's fees to prevailing tenant with travel costs incurred by landlord in attending fees hearing at which tenant's attorney failed to appear where there was no evidence of bad faith on part of tenant
VIEW OPINION

Municipal corporations -- Code enforcement -- Due process -- Notice -- Property owner waived claim that code enforcement board did not provide sufficient notice of initial hearing that resulted in order finding property in violation of city code where owner did not appeal order within 30 days of execution -- No merit to claim that owner did not receive sufficient notice of subsequent compliance hearing where notice was sent to owner's correct address by certified mail and returned to city with indications that postal service made multiple attempts to deliver it, and notices were posted on property and at city offices -- No merit to argument that notice was not properly sent because it was not sent in manner required by section 162.12 -- Statute only applies to notices for hearings required under Local Government Code Enforcement Boards Act, and compliance hearing was not required since order finding property in violation had already issued
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving under influence -- Probable cause affidavit -- Attestation -- Probable cause affidavit signed by arresting officer and attesting officer was properly attested notwithstanding absence of attesting officer's printed name and badge number -- Where attesting officer signed affidavit in official capacity as law enforcement officer, signature of notary public was not necessary
VIEW OPINION

Municipal corporations -- Code enforcement -- Due process -- Circuit court acting in its appellate capacity only has jurisdiction to review order denying property owners' request for postponement of fine reduction hearing and reducing fine, not previous order finding owners in violation of city code, where fine reduction order is only order from which owner timely appealed -- Code enforcement board did not violate due process by refusing to continue fine reduction hearing and making determination on reduction request without hearing oral argument where owners were made aware of fine reduction hearing and afforded opportunity to be heard, and owners exercised that option via petition for fine reduction
VIEW OPINION

Municipal corporations -- Ordinances -- Trespass warning -- Due process -- Certiorari challenge to hearing master's order upholding trespass warning that banned petitioner from entry into city park for one year -- No merit to argument that petitioner was denied due process by master's failure to make factual findings -- Master was not required to make detailed findings but did make explicit findings of fact -- Petitioner's arguments that trespass ordinance lacks adequate standards for determining when violation has occurred and duration of trespass ban are challenges to constitutionality of ordinance that are improperly raised in petition for writ of certiorari -- No merit to claim that trespass ordinance that allows trespass warning to be issued for any violation of any city ordinance, rule, or lawful directive on or within city property is vague -- Master properly determined that petitioner was properly issued trespass warning for being in city park after park closing time that was established by city ordinance -- No merit to claim that ordinance was unclear as to length of time trespass bans remain in effect -- No merit to claim that petitioner was not provided notice of specific ordinance violated where it is clear that petitioner knew that she was issued trespass warning for being in park after it had closed -- Petitioner not deprived of due process by city's failure to provide pre-deprivation hearing where it would have been impractical to provide pre-deprivation hearing, and city ordinance provided for full post-deprivation hearing within 30 days -- Where officer testified that he made contact with petitioner in park after 11:00 p.m. and that petitioner stated that she was angry with herself for not having left park, clear and convincing evidence supported finding that trespass warning was properly issued
VIEW OPINION

Municipal corporations -- Code enforcement -- Due process -- Notice -- City is required to comply with notice provisions of Section 162.12 where city has created its own ordinances on code enforcement but has not specifically exempted itself from provisions of Chapter 162 -- Notice of violation was insufficient where notice was sent by regular mail and posted on unoccupied property but was not sent by certified mail or hand-delivered, as required by section 162.12 -- Property owner was properly notified of violation by subsequent statement of violation/notice of continued hearing -- No merit to claim that notice of continued hearing was defective for failing to state that violation had been corrected -- Notice is only required to state that case may be presented even if repeat violation has been corrected prior to hearing -- Fine -- Code enforcement board did not err by imposing fine of $300 per day for repeat overgrowth violation where board could have imposed fine of $500 per day
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Lawfulness of stop -- Hearing officer's finding that licensee who made abrupt lane change was lawfully stopped for careless driving was supported by competent substantial evidence
VIEW OPINION

Insurance -- Personal injury protection -- Demand letter -- Motion for rehearing of opinion concluding that trial court erred in finding that demand letter with itemized billing ledger did not meet statutory requirements for demand letter is denied
VIEW OPINION

Municipal corporations -- Employees -- Dismissal -- No merit to claim that city employee's due process rights were violated because he was dismissed while grievances were pending with city where evidence demonstrates that city addressed employee's complaints -- No merit to claim that employee's due process rights were violated because civil service board hearing on his dismissal was conducted nine and one-half years after his dismissal where board was complying with decisions of appellate and trial courts when it conducted new hearing -- No merit to argument that board should not have held new hearing because employee should have been reinstated when circuit court acting in its appellate capacity granted writ of certiorari and quashed original board decision upholding dismissal where quashal left matter pending before board and any pronouncements by circuit court regarding course of future proceedings were only dicta
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving under influence -- Because law enforcement was not required to submit copy of videotape of licensee's breath testing to Department of Highway Safety and Motor Vehicles to support administrative suspension of licensee's driver's license, department did not err in sustaining suspension despite absence of videotape from record
VIEW OPINION

Licensing -- Driver's license -- Petition for writ of certiorari is denied where there is competent substantial evidence to support hearing officer's decision
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Although hearing officer granted request to exclude defective refusal affidavit, finding that licensee was given implied consent warning was supported by competent substantial evidence where charging affidavit stated that warning was read to licensee -- Affidavit need not recite text of implied consent warning read to licensee; warning can be identified by simple reference
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving under influence -- Licensee under age 21 -- Hearing officer reviewing DUI driver's license suspension of licensee under age 21 is not authorized to determine whether arresting officer was acting within his territorial jurisdiction -- Competent substantial evidence supported findings regarding licensee's age, control of vehicle, and alcohol level
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Lawfulness of detention and arrest -- Detention of licensee for DUI investigation and subsequent arrest were lawful where deputy, who was called to scene of vehicle blocking railroad tracks, observed licensee lying in grassy area nearby; licensee had odor of alcohol, bloodshot eyes, and slurred speech and was unable to stand unassisted; licensee admitted that he drove over tracks and got stuck, that he was coming from strip club where he had 3 - 4 glasses of wine, and that he was taking anxiety medication; and during safety check, deputy found keys to vehicle in licensee's pocket -- Attorney's fees -- Justiciable issues -- Department of Highway Safety and Motor Vehicles' motion to tax attorney's fees and for sanctions against licensee is denied
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Hearing -- No merit to argument that licensee was denied due process because he was unable to cross-examine arresting officer, who was on medical leave at time of initial hearing and appeared to testify at new hearing held on remand following certiorari review, within 30 days of receipt of request for hearing -- Statute and administrative rules require only that hearing be scheduled within 30 days of receipt of request for hearing -- Lawfulness of detention -- Crash witnesses' statements and officer's observations that licensee had odor of alcohol and swayed while standing support finding that detention for crash investigation and DUI investigation was lawful -- Licensee's admission to consuming alcohol and statement that he was unsure how his vehicle arrived at location provided basis to pursue DUI investigation and request performance of field sobriety exercises -- Poor performance on exercises, witnesses' statements, and officer's observations support finding that arrest was lawful
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Lawfulness of stop -- Where officer who was performing well-being check on licensee, who was found slumped over wheel of running vehicle parked on side of road, was still uncertain as to whether licensee was in medical distress after licensee opened his eyes, officer could lawfully continue to assess licensee's well-being and request that he open vehicle door -- Lawfulness of arrest -- Officer had probable cause for DUI arrest based on indicia of impairment observed after licensee opened door and exited vehicle
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Lawfulness of stop -- Bike rack obscuring tag and wide slow turn are not traffic infractions justifying stop -- Where licensee's vehicle drifted from lane to lane, touched lane lines, and came to complete stop on roadway, unusual operation of vehicle provided officer with reasonable suspicion of impairment justifying stop
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Citizen's arrest -- Breach of peace -- Off-duty officer acting outside jurisdiction was authorized to make citizen's arrest of defendant where officer observed defendant commit breach of peace by weaving in and out of lane, driving significantly below speed limit, driving with tires off of roadway, crossing centerline, and “snaking” on roadway ten times over two miles -- Error to grant motion to suppress
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving with unlawful breath alcohol level -- Lawfulness of stop -- Where officer observed licensee asleep in driver's seat of parked vehicle with brake lights and radio on and significant amount of vomit on ground outside driver's door, and licensee did not respond to knocking on vehicle window, officer was justified in making contact with licensee -- Officer was justified in initiating DUI investigation where, upon licensee opening door, officer observed that there was vomit on door jamb and on licensee and that licensee had odor of alcohol, red bloodshot eyes, and slurred speech -- Breath test -- No merit to argument that hearing officer erred by admitting breath test results into evidence without proper predicate for scientific evidence -- Breath test affidavit and agency inspection report admitted into evidence are presumptive proof of results of authorized breath test -- Hearing officer did not err by excluding documents regarding breath tests on persons other than licensee and documents related to Intoxilyzer 8000 approval study or by preventing questioning on scientific reliability of Intoxilyzer -- Challenges to approval process are beyond scope of formal review hearing
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving under influence -- Lawfulness of stop and arrest -- Deputy who observed licensee make illegal left turn had reasonable suspicion for traffic stop -- Deputy had probable cause for DUI arrest based on his observations of licensee's physical state and performance on field sobriety exercises -- Breath test -- Finding that licensee's blood alcohol level exceeded legal limit was supported by competent substantial evidence -- Although licensee argued that standard deviation level of Intoxilyzer could mean that his blood alcohol level, which was measured exactly at legal limit, was actually below limit, licensee did not present any evidence regarding standard deviations to support that argument
VIEW OPINION

Insurance -- Personal injury protection -- Demand letter -- Summary judgment -- No abuse of discretion in denying motion to continue summary judgment hearing due to unavailability of medical provider's counsel and need for discovery where counsel was only unavailable for 46 days in 6-month period between filing of motion for summary judgment and hearing on motion, and there had been ample time for discovery -- No abuse of discretion in denying motion to abate action to allow opportunity to submit another demand letter in lieu of letters alleged to be insufficient where sufficient demand letter is condition precedent that cannot be remedied post-suit -- Trial court did not err in finding that demand letters that sought payment for amounts previously paid by insurer and amounts not yet overdue did not strictly comply with PIP statute
VIEW OPINION

Criminal law -- Traffic infractions -- Red light cameras -- Traffic infraction enforcement officers -- Pursuant to section 316.640(5)(a), only person who has completed instruction in traffic enforcement procedures and court presentation through STEP or similar program is authorized to issue traffic citation for red light camera violations -- Qualification of TIEO is not element of red light infraction, but lack of qualification is defense -- Where defendant's claim that TIEO was not qualified was based on dismissal of citation in another case due to lack of evidence that TIEO's training program was similar to STEP, hearing officer erred in finding TIEO unqualified and dismissing defendant's citations without allowing county to present additional evidence regarding training program that had not been presented in other case
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving with unlawful alcohol level -- Lawfulness of stop and arrest -- Stop, detainment and arrest were lawful where deputy observed licensee slumped over in driver's seat of vehicle parked partially in road and partially on curb with engine running, licensee did not respond to knocking on vehicle window or flashlight shining at her face, licensee attempted unsuccessfully to place vehicle in drive when she was instructed to turn ignition off, deputy observed that licensee had glassy red eyes and odor of alcohol, licensee admitting to consuming 2 - 3 beers, and licensee swayed while standing and performed poorly on field sobriety exercises -- Breath test -- No merit to argument that hearing officer erred by admitting breath test results into evidence without proper predicate for scientific evidence -- Breath test affidavit and agency inspection report admitted into evidence are presumptive proof of results of authorized breath test -- Hearing officer did not err by preventing questioning on approval process and scientific reliability of Intoxilyzer 8000, which were beyond scope of formal review hearing
VIEW OPINION

Insurance -- Personal injury protection -- Coverage -- Medical expenses -- Lawfully rendered services -- Where medical provider failed to comply or substantially comply with requirements of Health Care Clinic Act concerning appointment of medical director, services rendered were not lawful and compensable -- Error to grant summary judgment in favor of provider
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving with unlawful breath alcohol level -- Licensee under age 21 -- Breath test -- Hearing officer's finding that breath tests were performed on approved device is supported by breath test affidavit stating that device used is listed on U.S. Department of Transportation's conforming products list -- Lawfulness of stop -- Irrespective of fact that statute provides that detention for underage drinking and driving does not constitute arrest, lawfulness of stop is issue in formal review hearing of license suspension for driving with unlawful breath alcohol level by licensee under age 21 -- Stop was lawful where trooper observed licensee weaving, drifting, touching lane markers, and failing to come to complete stop before making turn -- Trooper was not required to have reason to believe licensee was under age 21 prior to stop; it is sufficient that trooper knew licensee was under age 21 when he viewed his driver's license and noted his birthdate on notice of suspension
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Lawfulness of detention -- Where officer who found licensee asleep in vehicle unlawfully parked on shoulder of interstate highway was not able to rouse licensee by knocking on window, opening door to check on licensee was part of officer's community caretaking function -- Officer had reasonable suspicion to initiate DUI investigation where officer smelled alcohol and burnt cannabis upon opening vehicle door, and officer saw open can of beer in vehicle and noted that licensee had slurred speech and glassy bloodshot eyes
VIEW OPINION

Criminal law -- Traffic infractions -- Red light cameras -- Evidence -- Appeals -- Any error in admitting documents into record without proper predicate was not preserved for appeal where defendant did not object to admission of any documents -- Exemptions -- Vehicle not in custody of owner -- Hearing officer erred in refusing to allow defendant's father to testify that he had custody of defendant's vehicle on date of infraction rather than submitting an affidavit supporting exemption -- Statute allows for use of affidavit to establish exemption, but does not preclude live presentation of evidence
VIEW OPINION

Criminal law -- Traffic infractions -- Red light cameras -- Evidence -- Video attached to traffic citation was admissible without further authentication -- State is not required to prove identity of driver, only that vehicle in photograph or video failed to stop at red light and identity of owner of vehicle or person identified in affidavit as having custody of vehicle -- Where traffic infraction enforcement officer attempted to admit into evidence affidavit identifying defendant as lessor of rental vehicle on date of infraction, and affidavit was ruled admissible but not admitted, appellate court cannot determine whether there was competent substantial evidence before hearing officer to support finding that defendant committed infraction -- New hearing required
VIEW OPINION

Insurance -- Personal injury protection -- Discovery -- Adjuster's notes -- Error to compel production of adjuster's notes prepared prior to receipt of demand letter without conducting in camera inspection of notes
VIEW OPINION

Landlord-tenant -- Eviction -- Default -- Failure to deposit rent into court registry -- Where tenant moved trial court to determine how much, if any, rent should be paid into court registry, trial court erred in entering default before determining amount of rent to be deposited
VIEW OPINION

Criminal law -- Driving under influence -- Resisting officer without violence -- Evidence -- Erroneous introduction of Williams rule evidence regarding defendant's suspended license during trial on charges of DUI and resisting officer without violence was harmless -- Trial court's admission of verbatim recitation of racial slurs that defendant directed at arresting officer was error where probative value of slurs as circumstantial evidence of impairment and intent to commit resisting offense was outweighed by prejudicial effect, and there was other evidence to establish defendant's intent
VIEW OPINION

Insurance -- Discovery -- Appeals -- Certiorari -- Absence of transcript -- Affirmance of lower court ruling
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Finding that licensee was driver of vehicle involved in crash was not supported by competent, substantial evidence -- License suspension order quashed
VIEW OPINION

Appeals -- Certiorari -- Timeliness of petition -- Petition for certiorari review filed 31 days after rendition of order was untimely -- Discovery -- Ex parte order -- Where no local rule or administrative order from circuit authorizes ex parte orders in response to motions to compel discovery, trial court erred in issuing ex parte discovery order when defendants failed to attend hearing on motion to compel
VIEW OPINION

Insurance -- Discovery -- Appeals -- Certiorari -- Absence of transcript -- Affirmance of lower court ruling
VIEW OPINION

Insurance -- Coverage -- Summary judgment -- Where affidavit filed in opposition to summary judgment and peer review and medical records referenced therein were all clearly listed exhibits to insurer's summary judgment response, trial court's rejection of affidavit for failing to attach documents affiant relied upon was overly technical -- Summary judgment was improperly granted where documents collectively establish genuine disputed issue of material fact
VIEW OPINION

Insurance -- Personal injury protection -- Appeals -- Standing -- Omission of “P.A.” from style of petition for writ of certiorari seeking review of order in case filed by medical provider as professional association is scrivener's error that does not deprive provider of standing -- Appeals -- Certiorari -- Order dismissing with prejudice provider's claim for declaratory relief in multi-count complaint containing interrelated claims is non-final, non-appealable order reviewable only pursuant to appellate court's certiorari jurisdiction -- Provider has not established that dismissal of declaratory action claim or potentially improper award of attorney's fees creates irreparable harm necessary for writ of certiorari where both are reviewable on plenary appeal
VIEW OPINION

Appeals -- Timeliness -- Where “memo of disposition” reflecting trial court's oral denial of plaintiff's motion to vacate or reconsider court order entering final judgment for defendant is contained in record, but memo is not file stamped or docketed, memo is not appealable order -- Appeal of memo is dismissed without prejudice because date of rendition of order and time allotted for bringing appeal has not been fixed by proper rendition of an order
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Hearing -- Failure of subpoenaed witness to appear -- Licensee failed to preserve any claim that she was denied procedural due process by subpoenaed breath test operator's failure to appear at formal review hearing where licensee did not move to continue hearing and petition for enforcement of subpoena
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Driving under influence -- Hearing -- Refusal to issue subpoena -- Refusal to issue requested subpoena duces tecum to agency inspector was violation of due process entitling licensee to certiorari relief -- Where licensee's suspension has expired during certiorari review, remand for new hearing is unnecessary and improper
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Lawfulness of stop -- Record contains competent substantial evidence that lawful stop occurred where officer's report states that he conducted stop after laser speed measurement instrument calculated licensee's speed at 20 mph above posted speed limit -- No merit to argument that stopping officer could not rely on speed detected by laser device operated by fellow officer -- Lawfulness of arrest -- Record contains competent substantial evidence supporting finding that arrest was lawful where licensee stopped had odor of alcohol and glassy bloodshot eyes, licensee refused repeated requests to exit his vehicle and leaned on vehicle for support when he did exit vehicle, and licensee refused to perform field sobriety exercises
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Lawfulness of stop -- Where officer observed defendant driving over lane markers and coming to almost complete stop on highway on-ramp before continuing back into roadway and paced defendant driving 50 mph in 30 mph zone, stop was warranted by probable cause to believe licensee was speeding and reasonable suspicion of impairment -- Length of licensee's suspension for alleged second refusal was not issue for consideration in formal review hearing -- No merit to argument that hearing officer lacked competent substantial evidence for finding that refusal was subsequent to arrest because refusal affidavit omits times of arrest and refusal where officer's narrative in DUI report states that officer placed licensee under arrest and then requested that she submit to breath test
VIEW OPINION

Licensing -- Driver's license -- Suspension -- Failure to pass required reexamination -- Evidence -- Administrative rules do not place any burden on Department of Highway Safety and Motor Vehicles to present evidence in support of license suspension for failure to pass reexamination required under section 322.221; burden to show why license should not have been suspended is placed on licensee -- Hearing officer did not err in rendering decision based solely on licensee's testimony, her driving record, and fact that she was deemed to have failed two driving tests where licensee did nor present any other evidence in support of her position -- Notwithstanding licensee's explanations for driving errors that were cited as reasons for her test failures, hearing officer's conclusion that license was properly suspended is supported by competent substantial evidence
VIEW OPINION

Criminal law -- Appeals -- Ineffective assistance of counsel -- Claims of ineffective assistance of counsel not apparent on face of record are not cognizable on direct appeal, but may be raised in post conviction motion
VIEW OPINION

Criminal law -- Violation of driver's license restriction -- Where statutory amendment decriminalized violation of driver's license restrictions ordered by Department of Highway Safety and Motor Vehicles but retained criminal penalties for violation of restrictions ordered by courts, Parole Commission, or Department of Corrections, proof of which agency imposed restrictions is element of crime of violation of license restrictions -- Error to deny motion for judgment of acquittal where state failed to prove which agency imposed defendant's license restriction -- Double jeopardy bars retrial
VIEW OPINION

Civil procedure -- Fraud on court -- Sanctions -- No error in striking defendant's pleadings and entering final summary judgment for plaintiff where affidavit submitted by defendant in support of motion for summary judgment was false in nearly every material respect
VIEW OPINION

Criminal law -- Petit theft -- Jury trial -- Because petit theft is malum in se crime, trial court fundamentally erred in denying jury trial, even though charge had been reduced to second-degree misdemeanor and jail time and adjudication had been waived by court -- Evidence -- Hearsay -- Error to permit officer to testify about conversation in which store managers stated that they suspected defendant of stealing lottery tickets, identified defendant as employee shown on store video, and stated that defendant had stolen over $300 in scratch-off lottery tickets -- Testimony did not fall within any of enumerated hearsay exceptions -- Error to admit testimony by one manager relating what second manager told her during telephone conversation about discrepancy in cash register and lottery records -- Business records -- Error to permit manager's testimony regarding contents of cash register lottery sales records which state never submitted into evidence
VIEW OPINION

Insurance -- Personal injury protection -- Demand letter -- Demand letter that included amount which was not yet overdue did not strictly comply with PIP statute and failed to satisfy condition precedent to filing suit
VIEW OPINION

Criminal law -- Driving under influence -- Jurors -- Voir dire -- Claim that state improperly questioned jurors as to kind of verdict they would render if elements of crime were proven beyond reasonable doubt was waived where defendant failed to object to questioning and accepted jury -- Error was not fundamental -- Argument -- Any error in prosecutor's statement during closing argument that law does not reward functioning alcoholics and cocaine addicts was waived by defense's failure to object and did not rise to level of fundamental error
VIEW OPINION

Condominiums -- Foreclosure -- Where, at time condominium association commenced foreclosure action against unit owner, condominium property was subject to termination plan that absorbed all individual titles in existence and constituted new fee simple for condominium property, judgment of foreclosure was void because unit owner did not have legal title to his unit at time of foreclosure -- No merit to claim that plan was conditional termination -- Document purporting to suspend plan is nullity
VIEW OPINION

Criminal law -- Issuing worthless check -- No error in denying motion for judgment of acquittal where evidence presented showed that defendant gave landlord completely filled out and dated rent check, landlord did not know that check was worthless, and defendant's account had negative balance at time check was issued and before that time
VIEW OPINION

Criminal law -- Dismissal -- Trial court erred in sua sponte dismissing charges without motion from defense and without providing state opportunity to argue against dismissal
VIEW OPINION

Criminal law -- Petit theft -- Speedy trial -- Discharge -- Trial court erred reversibly by granting speedy trial discharge where defendant never filed notice of expiration of speedy trial time -- Second demand for speedy trial filed by defendant cannot be liberally construed as notice of expiration of speedy trial time
VIEW OPINION

Criminal law -- Obstructing or resisting officer without violence -- Assault on law enforcement officer -- Search and seizure -- Stop -- Where officer who was responding to report of domestic disturbance at apartment observed defendant and his mother yelling at each other but did not observe any criminal activity, officer did not have legal authority to stop and detain defendant after defendant walked out of apartment -- Officer's testimony that someone stated that defendant might have gun did not justify stop where there is no allegation of criminal conduct regarding firearm -- Error to deny motion to suppress
VIEW OPINION

Criminal law -- Possession of legend drug without prescription -- Evidence -- Statements of defendant -- Customs officer's questioning of defendant changed from routine to accusatory when he asked defendant if he had prescription for drugs found in his luggage, and thereafter defendant was subjected to custodial interrogation requiring reading of Miranda rights -- No error in suppressing defendant's response to question
VIEW OPINION

Criminal law -- Sentencing -- Costs -- Error to waive mandatory court costs when sentencing defendant who entered no contest plea to charges of driving with license suspended and no proof of insurance
VIEW OPINION

Criminal law -- Driving under influence -- Search and seizure -- Detention -- Officer had reasonable suspicion to detain defendant for DUI investigation where officer observed vehicle speeding and straddling lanes, and after stop, officer observed that defendant had odor of alcohol and bloodshot eyes -- Error to grant motion to suppress
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Criminal law -- Driving under influence -- Dismissal -- Where state amended information for driving with breath alcohol level of 0.08 or more one business day before trial to add new charge of driving with breath alcohol level of 0.15 or more into single count, trial court did not abuse its discretion in finding amended information confusing and prejudicial to defense's trial preparation -- No abuse of discretion in denying state's request for continuance where trial had been special set for over three months, and no new circumstances had arisen after case was set for trial
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Criminal law -- Driving under influence -- Evidence -- Refusal to submit to breath and urine tests -- Where officer who had no reasonable suspicion that defendant was under influence of controlled substance told defendant that her license could be suspended if she refused to submit to breath and urine tests, defendant could lawfully refuse testing -- No error in granting motion to suppress refusal to submit to both breath and urine tests based on simultaneous unlawful request for urine test
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Criminal law -- Driving under influence -- Search and seizure -- Field sobriety exercises -- Where arresting officer told defendant that he “needed her” to perform field sobriety exercises, performance of exercises was not voluntary -- No error in granting motion to suppress refusal to perform exercises
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Criminal law -- Driving under influence -- Search and seizure -- Vehicle stop -- Traffic infraction -- Deputy who observed tires of defendant's vehicle cross over solid white line at edge of roadway three times over course of a few blocks had probable cause to stop defendant for failure to obey traffic control device irrespective of fact that defendant's driving did not affect other traffic -- Error to grant motion to suppress
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Criminal law -- Possession of cannabis -- Search and seizure -- Dog sniff -- Trial court's decision to grant motion to suppress on ground that state had not met its burden of establishing reliability of drug-detection dog was based on Florida Supreme Court decision in Harris v. State that has since been reversed by U.S. Supreme Court -- Order granting motion to suppress is reversed and remanded
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Criminal law -- Carrying firearm into airport terminal -- Intent -- Section 790.06(12), which provides that any person who “knowingly and willfully” violates prohibition on carrying firearm into airport terminal commits misdemeanor of second degree, is general intent crime which does not require state to prove that defendant specifically intended to carry firearm into terminal -- Sufficient knowledge and intent may be inferred from facts, if proven, that defendant knowingly put firearm into bag and willfully brought bag into terminal -- Error to grant motion to dismiss
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Criminal law -- Dismissal -- Trial court erred in granting motion to dismiss because state faxed traverse to defense less than 24 hours before hearing on motion where defendant would not have suffered any prejudice had continuance been granted to allow defendant to rebut state's traverse
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Criminal law -- Petit theft -- Intent to defraud -- Where state was unable to introduce evidence to contradict defendant's claim that he intended to pay cab fare upon arrival at his parent's house but was unable to do so when his father refused to pay fare, trial court did not err in granting motion for judgment of acquittal notwithstanding verdict
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Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Lawfulness of arrest -- Actual physical control of vehicle -- No merit to argument that hearing officer could not consider arrest and traffic reports containing pre-Miranda statements by licensee where law requires that reports be included in record before hearing officer, and consideration of reports is not barred by accident report privilege -- Notwithstanding lack of direct evidence that licensee was driving, where reports reveal that only persons present at accident scene were licensee and driver of other involved vehicle, facts and circumstances establish probable cause to believe licensee was in actual physical control of vehicle
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Insurance -- Attorney's fees -- Attorney who withdrew as counsel prior to resolution of case was not entitled to award of attorney's fees notwithstanding fee agreement stating that attorney is entitled to fee upon judgment or settlement after withdrawal
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Insurance -- Personal injury protection -- Attorney's fees -- Attorneys who represented medical provider on contingency basis for first six years of litigation forfeited their claim for attorney's fees where attorneys withdrew of own volition and substituted new counsel prior to resolution of case
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Licensing -- Driver's license -- Suspension -- Refusal to submit to breath test -- Hearing -- Failure of subpoenaed witnesses to appear -- Licensee's due process rights were not violated by failure of subpoenaed witnesses to appear at hearing twice where licensee failed to pursue subpoena enforcement in circuit court
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Insurance -- Homeowners -- Trial court erred in dismissing complaint brought against insurer by company that repaired water damage to insured's home on grounds that assignment was made without insurer's consent and that repair company failed to join insured as indispensable party where resolution of those issues required consideration of insurance policy not attached to complaint and were, thus, beyond four corners of complaint -- Trial court's dismissal of complaint is affirmed under “tipsy coachman doctrine” where trial court should have dismissed complaint with leave to amend due to failure to attach policy, but repair company invited error by repeatedly declining offer to amend and insisting on final order granting motion to dismiss
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Criminal law -- Driving with license suspended or revoked -- Search and seizure -- Vehicle stop -- Officer who observed defendant speeding had probable cause for traffic stop -- Error to grant motion to suppress
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Counties -- Code enforcement -- On remand from district court of appeal opinion holding that property owners were denied procedural due process when circuit court acting in its appellate capacity affirmed code enforcement board order without ruling on property owners' pending motion to supplement record with transcript, circuit court considers transcript and affirms code enforcement board order
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Licensing -- Driver's license -- Suspension -- Driving with unlawful breath alcohol level -- Hearing -- Refusal to issue subpoenas -- Licensee was not denied due process by hearing officer's failure to issue subpoenas where hearing officer instructed licensee to resubmit subpoenas with corrections, and licensee failed to do so -- Lawfulness of arrest -- Even if hearing officer should not have considered Horizontal Gaze Nystagmus test administered by officer who is not drug recognition expert, totality of circumstances described in charging affidavit constitute competent substantial evidence for finding that licensee was lawfully arrested -- Breath test -- Where breath test affidavit and agency inspection report are presumptive proof that breath test was administered in substantial compliance with applicable statutes and administrative rules, and licensee did not presented any evidence that test was not accurate or that Department of Highway Safety and Motor Vehicles did not comply with rules and statutes, finding that licensee had unlawful breath alcohol level is supported by competent substantial evidence
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