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Week In Review

Headnotes of selected Florida Supreme Court and District Courts of Appeal cases filed the week of
May 23 - May 27, 2016

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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Administrative law -- Florida Department of Law Enforcement -- Rules -- Blood alcohol testing -- Appeal from order of administrative law judge which dismissed petition challenging certain FDLE rules relating to collection and labeling of blood for blood alcohol content testing -- ALJ did not err in finding that challenged rules were valid exercises of delegated legislative authority -- ALJ's determination that rules adequately protect reliability and consistency of blood testing was supported by competent evidence in record on appeal -- Testimony was sufficient to establish that rule governing collection of blood sample was not invalid for failing to specify required needle size for drawing blood -- Rule entitled “Blood Alcohol Permit -- Analyst” is not invalid for failing to incorporate a process to identify and/or exclude unreliable blood samples from the testing process
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Dissolution of marriage -- Alimony -- Trial court abused discretion in awarding wife a combination of durational alimony and permanent alimony rather than solely awarding permanent alimony where marriage was a long-term marriage, and evidence failed to demonstrate that wife's need or husband's ability to pay would be materially different at the end of the durational period than it was at the time the judgment was entered
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Guardianship -- Incapacitated persons -- Appointment of limited guardian advocate on behalf of person with developmental disability -- Good cause to proceed with guardianship proceeding without potential ward being present -- Comments by trial court made it clear that court implicitly considered potential ward's decision not to appear at guardianship hearing was good cause to hold hearing in ward's absence -- Order appointing guardian advocates did not fulfill requirements of statute where order did not contain findings as to nature and scope of ward's lack of decisionmaking ability or specific legal disabilities to which ward is subject -- Remand with instructions that court make findings of fact and conclusions of law in accordance with requirements of statute
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Jurisdiction -- Ecclesiastical abstention doctrine -- Trial court properly dismissed plaintiff's action against cemetery company, alleging that defendant violated Florida Funeral, Cemetery, and Consumer Services Act and Florida Deceptive and Unfair Trade Practices Act by misrepresenting to plaintiff that defendant would bury her husband in accordance with “Jewish burial customs and traditions” and then burying the husband in the same section of cemetery where non-Jews were buried -- Disposition of complaint would require court to determine what constitutes Jewish burial customs and traditions, and that determination is an ecclesiastical one about an ecclesiastical rule, custom, or law, precluding judicial review
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Public records -- Delay in responding to request -- Attorney's fees -- Delay in responding to plaintiff's public records request was not so “unjustifiable” that it amounted to unlawful refusal to provide requested record where request was made in a suspicious email that could not be easily verified, from an undisclosed sender and was directed to an independent contractor, not a governmental agency familiar with fielding public records requests -- Trial court correctly denied plaintiff's request for attorney's fee
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Rules of Appellate Procedure -- Amendment -- Appeal proceedings in criminal cases -- Briefs
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Taxation -- Sales tax -- Assessment of sales tax on florist's sale of flowers, gift baskets, and tangible property to out-of-state customers for out-of-state delivery does not violate dormant Commerce Clause or due process clause -- District court of appeal erroneously found that section 212.05(1)(l), Florida Statutes (2012), is unconstitutional as applied -- Statute does not violate dormant Commerce Clause or due process clause -- Taxpayer that has its principal place of business in Florida has a substantial nexus with state -- Tax is fairly apportioned -- Tax does not discriminate against interstate commerce -- Tax is fairly related to services provided by state
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Torts -- Surgery on minor child -- Informed consent -- Health care provider is not required to obtain informed consent from both parents of a minor child, rather than just one parent, before rendering non-emergency care or treatment to minor child -- Consent of one parent to non-emergency medical procedure for minor child is sufficient to permit health care provider to render such care or treatment -- Rule applies even when health care provider allegedly knew or should have known that other parent objected to the care or treatment -- Trial court properly dismissed father's complaint, alleging battery and intentional interference with parent-child relationship, against surgeon who performed surgery on child with mother's consent, but not father's consent
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Workers' compensation -- Temporary partial disability -- Affirmative defenses -- Termination of claimant for misconduct premised solely on claimant's attorney's statement that claimant had shared that she had suicidal and homicidal thoughts arising from her injuries -- Judge of compensation claims properly found that claimant's statements to her attorney, including statement that claimant felt like “punching the lights” out of her co-worker, did not constitute misconduct as defined by statute -- Statute addresses only intentional or deliberate conduct that violates standards of behavior or employer's interests, and malevolent thoughts alone, without requisite evidence establishing intent to harm, do not meet this definition
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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.
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Criminal law -- Attempted felony murder and attempted robbery of one victim -- Aggravated battery of second victim -- Evidence -- Confession -- Voluntariness -- Trial court erred in admitting confession which was induced by detective's repeated promises to lessen the charges against defendant if he told the truth -- Hearsay -- Testimonial out-of-court statement -- Trial court did not err in overruling objection to detective's testimony that victim, who did not testify at trial, told him that “J.R.” shot her -- Victim's statement, made shortly after incident when victim was injured and hysterical, was clearly an excited utterance and made for primary purpose of assisting police in responding to emergency -- 911 call placed by worker at shelter where victim fled was not testimonial in nature, as call was placed for purpose of reporting an emergency as it was occurring and to help police in responding -- Trial court reversibly erred in allowing officer to testify to contents of BOLO that described assailant and named him as “J.R.” -- New trial required
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Criminal law -- Conspiracy to manufacture methamphetamine -- Variance between what was charged in information and what was proven at trial -- Fundamental error occurred where the name of defendant's co-conspirator charged in the information varied from the name proven at trial -- Variance exposes defendant to danger of a second prosecution for the same offense
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Criminal law -- First degree murder -- Sentencing -- Offense committed by juvenile -- Sentence of mandatory term of life imprisonment, with possibility of parole after 25 years, for homicide committed when defendant was juvenile is virtually indistinguishable from a sentence of life without parole and is therefore unconstitutional -- Florida's existing parole system, as set forth by statute, requires that primary weight be given to seriousness of offender's present offense and past criminal record and does not provide for individualized consideration of defendant's juvenile status at time of murder, as required by U.S. Supreme Court's decision in Miller v. Alabama -- In instant case, fact that Commission on Offender Review conducted a parole hearing 25 years after defendant was sentenced and set defendant's presumptive parole release date for the year 2130 made it a virtual certainty that defendant will spend the rest of his life in prison -- Remand for resentencing in conformance with recent legislation -- Under current sentencing framework, sentencing court is authorized to impose sentence from 40 years to life imprisonment after considering youth-related sentencing factors -- Further, unlike parole system in place, juvenile offender's sentence is subject to review by trial judge after 25 years, who then determines whether sentence modification is warranted based upon a variety of factors, including juvenile offender's youth and its attendant characteristics at time of offense and whether juvenile offender remains at same level of risk to society as at time of initial sentencing
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Criminal law -- Murder -- Death penalty -- Post conviction relief -- Successive motion -- Newly discovered evidence -- Circuit court properly concluded there was no probability that outcome of trial or sentencing would be changed by newly discovered evidence that codefendant had told investigators that defendant and victim struggled with gun before defendant was shot and that codefendant secured a plea agreement with state before testifying at defendant's trial -- Defendant not entitled to relief on Brady claim that state failed to disclose that it negotiated a plea agreement with codefendant prior to codefendant's testimony at defendant's trial or on Giglio claim that state knowingly presented false testimony when codefendant testified that no promises had been made regarding disposition of the charges he faced
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Criminal law -- Sentencing -- Criminal Punishment Code -- Departure from presumptive sentence of nonstate prison sanction -- Sentencing court's finding of defendant's danger to public must be more than recitation of acts that are inherent to the crimes for which the defendant was convicted -- Court must make findings to establish a nexus between sentencing an offender to a nonstate prison sanction and the resulting danger that nonstate prison sanction could present to the public -- Order in which court merely recited charges against defendant and the details surrounding them was inadequate -- Detailed discussion of section 775.082(10)
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Criminal law -- Separate convictions for using a computer to solicit a person believed to be a parent for sex with a minor and traveling after using a computer to solicit a person believed to be a parent for sex with a minor violate prohibition against double jeopardy -- Conviction on the lesser offense of solicitation reversed -- Entrapment -- Actions of undercover detective, posing as the mother of a minor, in placing ad on Craigslist did not constitute objective or subjective entrapment -- In denying motion to dismiss based on subjective entrapment, there was no requirement to reach defendant's claim of lack of predisposition where there was no inducement -- Sentencing -- Claims that defendant should not have been adjudicated guilty, should not have been designated as a sexual offender, and should not have been placed on sex offender probation were not preserved for appellate review where no objections were raised at sentencing hearing, and rule 3.800(b)(2) motion to correct sentencing error was untimely filed after serving of initial appellate brief -- Further, court did not err in failure to withhold adjudication of guilt where state did not request withholding of adjudication of guilt -- Court properly designated defendant as a sexual offender -- Court did not err in placing defendant on sex offender probation where, in his open plea to court, defendant agreed to be bound by special conditions of sex offender probation as part of his successful effort to convince court to impose downward departure sentence -- There is no merit to claim that section 847.0135(4)(b), Florida Statutes, is unconstitutionally overbroad, void for vagueness, and a violation of the right to free speech
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