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Week In Review

Headnotes of selected Florida Supreme Court and District Courts of Appeal cases filed the week of
January 20, 2020 - January 24, 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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Appeals -- Non-final orders -- Sovereign immunity -- Rule of Appellate Procedure 9.130(a)(3)(C)(xi) does not permit an appeal of a non-final order denying sovereign immunity if the record shows that the defendant is entitled to immunity as a matter of law but the trial court did not explicitly preclude it as a defense -- Rule 9.130 amended to expand the availability of appellate review of non-final orders denying sovereign immunity and orders governing immunity in civil rights claims arising under federal law and immunity under section 768.28(9), Florida Statutes
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Child custody -- Temporary -- Grandparent's verified petition for temporary custody -- Jurisdiction -- Uniform Child Custody Jurisdiction and Enforcement Act -- Trial court erred in not exercising initial custody jurisdiction over child on ground that foreign court had already exercised jurisdiction over child where Florida was child's home state and foreign court's jurisdiction was limited to exercising temporary emergency jurisdiction while child was in foreign state -- Florida court violated grandmother's due process rights when it communicated with foreign court during jurisdiction hearing without allowing grandmother to participate
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Condominiums -- Association -- Screening of sales, transfers, and conveyances of units -- Action against association by limited liability company to which purchaser had transferred unit, brought after association refused to approve lease applications submitted under LLC's name because purchaser had failed to obtain association's approval of unit title transfer -- Although association's governing documents authorized approval of all leases, subleases, or other occupation of unit, documents did not authorize association's approval of unit transfers, title transfers, or sales -- Summary judgments entered in favor of association on counts seeking injunctive and declaratory relief and seeking damages for slander of title were based on incorrect interpretation of governing document and are reversed
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Contracts -- Interlocal agreement between city and county related to airport expansion -- Landowner's breach of contract action against county brought after county rejected request for reduction in appraised market value of home pursuant to provision of ILA creating conveyance and release program which allowed certain homeowners to execute release relating to airspace above their property in exchange for reduction of property's appraisal market value -- Landowner did not own qualifying residence under terms of ILA where landowner did not live on property on ILA's effective date and was not taxed as owning a residence at that time -- Suggestion that ILA identified eligible property owners as third-party beneficiaries by way of a Federal Aviation Administration zoning map that indicated properties projected to be damaged by noise pollution is without merit, as basis for reimbursement was established by ILA, not by zoning map -- Trial court erred in denying county's motion for summary judgment
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Dissolution of marriage -- Contempt -- Child custody -- Timesharing -- Appeals -- Nonfinal orders -- Trial court's order finding former wife in contempt, awarding former husband makeup timesharing, and setting forth a punishment schedule if parties' minor child refuses to attend timesharing with former husband was a nonappealable, nonfinal order where the order did not grant or terminate visitation rights, or determine former husband's right to immediate child custody -- Court treats appeal as a petition for writ of certiorari -- Former wife is not entitled to relief on issue of whether trial court erred in failing to consider the best interest of the child when awarding makeup time sharing -- Appeal is premature and former wife has not suffered an injury that cannot be remedied on appeal where trial court did not determine how many days are owed or when makeup timesharing will occur -- Trial court did not depart from essential requirements of the law in finding former wife in contempt for violating trial court's orders by unilaterally terminating timesharing, seeking counseling from out-of-network provider without obtaining former husband's consent, and ignoring trial court's instructions to contact reunification therapist -- Trial court's orders clearly set forth parenting plan and perimeters -- Trial court departed from essential requirements of the law by requiring former wife to impose and enforce punishment schedule on minor child if minor child refused to participate in timesharing where neither party requested such relief
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Dissolution of marriage -- Jurisdiction -- Foreign judgments -- Validity of marriage -- Claim that dissolution action should be dismissed because marriage is void under Philippine law due to wife's failure to obtain a judicial determination that her previous marriage was void -- Philippine judgment declaring parties' marriage invalid because no judicial decree of nullity of prior fraudulent marriage was obtained prior to subsequent marriage offends Florida public policy -- Trial court properly rejected claim that marriage is invalid and that dissolution action should be dismissed
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Eminent domain -- Inverse condemnation -- Claim that highway flyover project violates rights under easement agreement with property owner for unobstructed view of billboard and access thereto -- Owner is not entitled to compensation for loss of visibility of billboard -- Private parties may not create a contractual property interest, such as a guarantee of an unobstructed view of a billboard, for which compensation is due for a taking by government agency -- Flyover project did not result in a denial of access to billboard easement
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Florida Bar -- Rules Relating to Admission to Bar -- Amendment -- Subjects that can be tested on Part A of General Bar Examination
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Paternity -- Relief from judgment -- Void/voidable judgments -- Child born to intact marriage -- Motion to vacate order denying petition to determine paternity filed more than a year after original judgment -- No error in denying purported biological father's motion to vacate paternity order dismissing his petition on the basis that the order was void due to the violation of biological father's due process rights -- Trial court's failure to appoint a guardian ad litem to represent minor child's interest renders judgment voidable, not void -- Purported biological father did not demonstrate an illegal deprivation of rights that would render paternity order void and subject to challenge at any time where he was present for the hearing, and failed to explain how trial court deprived him of the ability to prove his standing and the child's best interest -- Trial court did not err in denying motion to vacate paternity order on grounds that it was no longer equitable due to change in circumstances where purported biological father's arguments rested on events that occurred prior to entry of the challenged order
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Mortgage foreclosure -- Due on sale clause permitting mortgagee to accelerate loan upon sale or transfer of property without mortgagee's consent was triggered when property was transferred as result of condominium assessment lien foreclosure -- It was error for trial court to sua sponte dismiss action without a pending motion and prior to presentation of any evidence
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Rules of Appellate Procedure -- Amendment -- Nonfinal and specified final orders -- Nonfinal orders denying sovereign immunity, denying immunity in civil rights claims arising under federal law, and denying immunity under section 768.28(9)
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Standard jury instructions -- Civil -- Amendment
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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 -- Carrying concealed firearm -- Under 2015 amendment, state was required to prove, as element of crime of carrying concealed firearm, that defendant was not licensed to carry a concealed firearm -- Fundamental error occurred with respect to this conviction where state failed to prove, and trial court failed to instruct jury that state had to prove, that defendant was not licensed to carried concealed firearm -- Remand for trial court to vacate conviction and sentence
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Criminal law -- Driving while license revoked -- Habitual traffic offender -- Notice -- Jury instructions -- No error in denying request for special jury instruction that would have included notice from the Department of Highway Safety and Motor Vehicles as an element of offense -- DHSMV's provision of a notice that a driver's license was revoked under section 322.251 is neither an element of nor an affirmative defense to the criminal offense set forth under section 322.34(5) -- Court recedes from statements in prior holdings that mistakenly include notice as a required element of offense -- To prove the crime of driving while license revoked as a habitual traffic offender, the state must prove beyond a reasonable doubt that defendant drove a motor vehicle upon a highway in this state at the time defendant's license was revoked as a habitual traffic offender -- Conflict certified
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Criminal law -- Murder -- Death penalty -- Post conviction relief -- Trial court did not err in finding defendant competent to proceed in post conviction proceedings -- Ineffective assistance of counsel -- Trial court did not err by summarily denying claim that counsel was ineffective for failing to adequately cross-examine witnesses, as record refutes any claim of prejudice resulting from alleged deficient performance -- Trial court did not err in summarily denying claim that state withheld evidence of deals with witnesses in exchange for their trial testimony -- Habeas corpus -- Ineffective assistance of appellate counsel -- Claim that appellate counsel was ineffective for not appealing trial court's determination that defendant was competent to stand trial at guilt phase denied as insufficiently pled -- Defendant is not entitled to relief on claim that appellate counsel was ineffective for failure to appeal unobjected to comments by prosecution during cross-examination and closing argument
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Criminal law -- Murder -- Sentencing -- Death penalty -- Post conviction relief -- State's appeal from order setting aside death sentence and ordering new penalty phase proceeding after finding that sentence had been imposed in violation of state and federal constitutions as interpreted and applied in Hurst v. State -- Court recedes from Hurst v. State except to extent that it held that a jury must unanimously find the existence of a statutory aggravating circumstance beyond a reasonable doubt -- Where jury in defendant's case unanimously found that, during the course of first-degree murder, defendant committed the crimes of first-degree murder of another victim, sexual battery, armed burglary, and armed robbery, this satisfied the requirement that a jury unanimously find a statutory aggravating circumstance beyond a reasonable doubt -- Portion of trial court's order vacating death sentence vacated -- Guilt-phase claim that defendant is entitled to a new trial because, over his express objections, defense counsel conceded guilt on non-homicide offenses was waived where this specific legal argument was not presented to lower court -- Extensive discussion of federal cases leading up to Hurst -- Proper approach to stare decisis
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Criminal law -- Sentencing -- Guidelines -- Nonstate prison sanction -- Danger to public -- Appeals -- Remedy -- Proper remedy for harmful error resulting from the court, not the jury, finding the fact of dangerousness under section 775.082(10) is to remand for resentencing with instructions to either impose a nonstate sanction of up to one year in county jail or to empanel a jury to make the determination of dangerousness, if requested by the state -- Remedy of empaneling a jury to make dangerousness determination is the least intrusive remedy to both safeguard defendants' Sixth Amendment rights and effectuate legislature's clear purpose in enacting subsection (10)
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