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Week In Review

Headnotes of selected Florida Supreme Court and District Courts of Appeal cases filed the week of
February 10, 2020 - February 14, 2020

Civil Law Headnotes (Jump to Criminal Law Headnotes)

THESE ARE NOT ALL OF THE CASES RELEASED BY THE COURTS FOR THE WEEK.
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Dissolution of marriage -- Attorney's fees -- Charging lien -- Justiciable issues -- Claim or defense not supported by material facts or applicable law -- Action arising out of husband's former counsel's filing of a motion to adjudicate charging lien against wife's counsel claiming that wife's counsel failed in its affirmative duty to notify husband's former counsel of settlement and to protect its interests in the assets the husband received in settlement -- Trial court abused its discretion in denying wife's counsel's motion for attorney's fees pursuant to section 57.105 because husband's former counsel's claim was not supported by material facts or by the application of then-existing law to the material facts -- Husband's former counsel had no admissible evidence to establish that wife's counsel ever held any assets that were awarded to husband in dissolution judgment and wife's counsel did not transfer any assets to former husband -- Although husband's former counsel had no opportunity to participate in mediation, it was notified of settlement agreement the day settlement was reached and a month before dissolution judgment on the settlement was entered
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Dissolution of marriage -- Contempt -- Appeals -- Appeal of order holding former husband in contempt and threatening further sanctions -- Order is non-final and appeal dismissed where order on appeal did not actually impose sanctions, but rather warned former husband of potential sanctions if he did not comply within thirty days
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Dissolution of marriage -- Contempt -- Failure to pay alimony -- Order finding former husband in civil contempt reversed to the extent that it required former husband to pay purge amount of $6000 -- Court's finding as to former husband's ability to pay the purge amount was not supported by competent, substantial evidence
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Florida Bar -- Rules Relating to Admission to Bar -- Amendment -- Board of Bar Examiners -- Qualifications for attorney board members -- Qualifications for non-attorney public board members
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Mortgage foreclosure -- Standing -- Substituted plaintiff -- Holder of note -- Trial court erred in dismissing case on basis that substitute plaintiff lacked standing at the time of trial because original note was in possession of the clerk, not substitute plaintiff -- Even though substituted plaintiff did not obtain a ruling on its motion to return original note, which was endorsed in blank and contained borrower's signature, substitute plaintiff obtained original note from court file and proffered it into evidence at trial -- Introduction of original note bearing blank endorsement into evidence at trial is sufficient to establish standing at trial
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Injunction -- Repeat violence -- Petitioner who, individually and on behalf of his minor child, sought injunction against former wife's boyfriend -- Injunction reversed where evidence did not support finding that respondent committed acts of repeat violence as defined in section 784.046 -- Respondent's actions of spanking minor child were reasonable and did not constitute violence under statute -- Incident during custody exchange in which petitioner and respondent engaged in a verbal altercation did not meet statutory definition of violence where there was no allegation of physical violence and petitioner failed to show that respondent's action of clenching his fists amounted to assault -- Although petitioner testified that he was afraid of respondent, there was no evidence that respondent committed an overt act that justified a well-founded fear in petitioner that violence was imminent
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Workers' compensation -- Attorney's fees -- Where employer/carrier initially denied claim for benefits, but rescinded the denial and agreed to provide requested benefits on the Monday following the Saturday which was the thirtieth day after the petition for benefits was filed, claimant was entitled to award of attorney's fees -- For purpose of statutory provision that attorney's fees shall not attach until 30 days after the date the carrier or employer receives the petition, 30 days refers to calendar days, not business days -- Rule cannot extend the thirty-day deadline when the thirtieth day from the date e/c receives a petition falls on a weekend or holiday
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Criminal Law Headnotes (Jump to Civil Law Headnotes)

THESE ARE NOT ALL OF THE CASES RELEASED BY THE COURTS FOR THE WEEK.
To see others not presented here, log in for more comprehensive weekly listings.

Criminal law -- Murder -- Death penalty -- Jury instructions -- Trial court did not err by failing to instruct jury that it must find beyond a reasonable doubt that aggravating factors were sufficient to warrant death sentence and that they outweighed mitigating factors, as these determinations are not subject to the beyond a reasonable doubt standard of proof -- Trial court did not err in denying defendant's request for a nonbinding recommendation to the Department of Corrections for an order of no contact with an assistant warden -- Court adequately considered defendant's request and did not act under any mistaken impression of the law -- Death sentence is proportionate
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Criminal law -- Murder -- Post conviction relief -- Because all claims raised in defendant's third successive post conviction motion became discoverable through due diligence more than a year before the motion was filed, claims are procedurally barred as untimely
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Criminal law -- Murder -- Post conviction relief -- Habeas corpus -- Counsel -- Ineffectiveness -- Case involving incident in which defendant lured murder victims to remote property under pretense of selling them deer corn -- No error in summarily denying claim that trial counsel was ineffective for failing to strike several jurors who allegedly demonstrated bias in favor of the death penalty where defendant failed to argue prejudice -- Trial court properly denied claim that trial counsel was ineffective for failing to object and move for mistrial when an officer identified defendant in a surveillance video based on officer's personal familiarity with defendant -- Officer's testimony did not imply that defendant had a criminal background and, under the circumstances, an objection would not have been sustained -- No error in denying claim that trial counsel was ineffective for failing to object and move for mistrial during closing argument due to prosecutor's alleged burden shifting statement that defendant's father never testified that he stored deer corn on the property where the incident occurred -- Argument simply pointed out lack of evidence to support alternative theory put forth by defense, which was permissible -- No error in summarily denying claim that trial counsel was ineffective for allowing themes of religious retribution throughout the trial -- Defendant cannot show prejudice as to his penalty phase claim because his sentence has been vacated -- Defendant cannot show prejudice from religion-oriented statements made during voir dire -- It was not improper for trial counsel to probe whether any potential jurors held religious beliefs that would preclude them from following trial court's instructions on the law -- There is no reasonable probability that prosecution's fleeting biblical allusion during closing argument affected the jury's verdict -- No error in denying request that trial court vacate judgment and order Department of Corrections to release him as to count of attempted robbery, which had already been vacated by the court but which was still reflected on department's website -- Defendant has not demonstrated that he attempted to resolve issue with the department directly, or that he confirmed whether the error was merely one of the department's website rather than its official records -- Appellate counsel was not ineffective for failing to challenge trial court's determination that state gave genuine, race-neutral reasons for exercising peremptory challenges against African-American jurors -- Trial counsel failed to renew objection to strikes prior to jury being sworn and therefore issue would have been procedurally barred
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Criminal law -- Sexual battery -- Evidence -- Rule of completeness -- Hearsay -- Prior consistent statement -- Rehabilitation -- Rule of completeness did not compel the admission of defendant's entire recorded statement to police after his arrest where state did not introduce the statement into evidence -- Although not admissible under rule of completeness, trial court abused its discretion by excluding defendant's statement to police because it was admissible to rebut implied charge of recent fabrication -- Exclusion of evidence was not harmless -- Trial court did not err in precluding jury from learning about victim's prior allegations of rape in another state where evidence developed at the time of trial was not sufficiently probative of a common scheme or plan to justify its admission under section 90.404(2) -- Trial court erred in admitting victim's entire recorded statement from medical center where rape kit was collected as substantive evidence under section 90.801(2)(b) where nothing in cross-examination of any witness amounted to an express or implied charge against victim of improper influence, motive, or recent fabrication -- Entire record was not admissible as a prior consistent statement to rehabilitate victim pursuant to Monday v. State -- Rehabilitation under Monday does not contemplate introduction of an entire statement of which the consistent statement is only a small part -- Error in admission of victim's entire statement was compounded because trial court failed to give limiting instruction confining jury's consideration of the statement to a single purpose
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Criminal law -- Written threat to kill or do bodily injury -- Dismissal -- Charge for violation of section 836.10 stemming from incident in which defendant sent Snapchat photograph to a high school student which depicted a rifle with a high capacity magazine and the caption “Show and Tell at [highschool] on Monday” -- Trial court erred in granting motion to dismiss information based on determination that state failed to make prima facie showing that captioned photograph was a threat -- Under most favorable construction of the facts, state made prima facie showing that the captioned photograph was a threat because it was sufficient to cause alarm in reasonable persons -- The reasonableness of student's perception of the captioned photograph as a threat is a matter for a jury to determine
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