New Releases
from the Florida Supreme Court & Florida District Courts of Appeal

Torts -- Defamation -- Action by plaintiff against his former employer alleging that defendant falsely maligned him to his prospective employer, the Federal Bureau of Investigation -- Evidence -- Hearsay -- Public records exception -- A concededly authentic document, purporting to be a transcription by an unidentified employee of the FBI, of a summary dictated by an unidentified representative of the FBI, of an interview conducted either by that individual or another, is not admissible under the public records exception to the hearsay rule -- Records that rely on information supplied by outside sources or that contain evaluations or statements of opinion by a public official are inadmissible -- Document was not admissible as counter-evidence sufficient to reveal a genuine issue of material fact so as to avoid summary judgment, and summary judgment was properly entered for defendant
VIEW OPINION

Criminal law -- Public defenders -- Trial court departed from essential requirements of law in granting public defender's motion to withdraw because of excessive caseload where there was no evidence of actual or imminent prejudice to client's constitutional rights if public defender were not allowed to withdraw -- Question certified: Whether section 27.5303(1)(d), Florida Statutes (2007), which prohibits a trial court from granting a motion for withdrawal by a public defender based on “conflicts arising from underfunding, excessive caseload or the prospective inability to adequately represent a client,” is unconstitutional as a violation of an indigent's right to effective counsel and access to the courts, and a violation of the separation of powers mandated by Article II, section 3 of the Florida Constitution as legislative interference with the judiciary's inherent authority to provide counsel and the Supreme Court's exclusive control over the ethical rules governing lawyer conflicts of interest?
VIEW OPINION

Criminal law -- Sentencing -- Correction -- Trial court properly denied motion seeking correction of sentence on basis of scoresheet error where defendant entered plea, and court could have imposed same sentence using a correct scoresheet
VIEW OPINION

Criminal law -- Sentencing -- Correction -- Motion seeking the striking of convictions and life sentences for attempted felony murder on authority of Florida Supreme Court's decision in State v. Gray, which abolished the offense of attempted first-degree felony murder -- Although defendant's case fell within Gray window because Court's decision held that the abolition of the crime of attempted felony murder must be applied to all cases pending on direct review or not yet final, Gray issue was not raised while defendant's appeal was pending or by timely motion alleging ineffective assistance of appellate counsel -- Claim cannot be raised in rule 3.800(a) motion under manifest injustice exception to res judicata and collateral estoppel doctrines because even if defendant's convictions and life sentences for attempted felony murder were vacated, defendant is still subject to life sentence imposed as habitual violent felony offender on a different count for armed robbery
VIEW OPINION

Civil procedure -- Dismissal -- Fraud on the court -- Trial court properly dismissed complaint for fraud on the court, consisting of tampering with witness by passing notes to witness and sending text messages to witness
VIEW OPINION

Unemployment compensation -- Misconduct -- Claimant's act of processing a loan without obtaining proper authorization from the borrower was an isolated mistake evidencing poor judgment, rather than a deliberate and repeated violation of employer's policy -- Unemployment Appeals Commission abused discretion in finding that one incident of poor judgment over fourteen-year history with employer rose to level of misconduct
VIEW OPINION

Counties -- Zoning -- Circuit court appellate division departed from essential requirements of law in reversing county's denial of a plat zoning exception in an opinion which failed to explain the reasons for the reversal and amounted to a per curiam reversal -- Appellate court cannot issue what amounts to a per curiam reversal
VIEW OPINION

Licensing -- Driver's license suspensions -- Appellate attorney's fees -- Circuit court appellate division erroneously awarded attorney's fees to licensees' counsel after quashing administrative orders suspending their licenses because of improper consent form or warnings where there was no legally sufficient statutory, contractual, or other predicate for the imposition of such fees -- There was no finding of bad faith on part of Department of Highway Safety and Motor Vehicles that resulted in unnecessary incurrence of attorney's fees, and Department's position is not one that lacks any plausible factual and legal basis
VIEW OPINION

Torts -- Premises liability -- Slip and fall -- New trial -- Court erred in granting a new trial on the ground that he erroneously instructed jury on negligent mode of operation theory where issue was not raised at trial and was therefore waived -- Review of point is barred by two-issue rule because of an unobjected to general verdict and ample evidence of alternative theories of liability -- On the merits, the charge in question was both legally correct and supported by competent evidence of the defendant store's practice of unsupervised handling of its shopping carts resulting in water being shaken onto the floor
VIEW OPINION

Criminal law -- Post conviction relief -- Error to strike defendant's rule 3.850 as facially insufficient for failure to meet requirements of rule 3.851(e)(2)(C) -- Rule 3.851 is not applicable to defendant who was not sentenced to death -- Since defendant was not sentenced to death, his motion filed under rule 3.850 was proper
VIEW OPINION

Insurance -- Personal injury protection
VIEW OPINION

Injunctions -- Temporary -- Torts -- Defamation -- Interference with business relationship -- Physician seeking to preclude former patient from making allegedly defamatory statements to his patients and prospective patients, which physician alleged served as verbal act of tortious interference with business relationships -- Error to determine that injunctive relief was not an available remedy for the type of dispute at issue -- However, physician failed to present evidence to establish a clear legal right to injunction where he did not present any evidence that demonstrated or would allow inference that defendant's conduct had a deleterious effect on his business
VIEW OPINION

Criminal law -- Fleeing and eluding police officer -- Jury instructions -- Error to fail to instruct jury on permissive lesser included offense of refusal to obey officer's lawful order on ground that section 316.072(3), the statute on which instruction was based, applied only in emergency situations -- Trial court was required to instruct jury on offense where elements were alleged in information and evidence of those elements was presented at trial
VIEW OPINION

Criminal law -- Post conviction relief -- Newly discovered evidence -- Record attachments provided by state did not conclusively refute defendant's claim that newly discovered confession by third party would weaken case against defendant and give rise to reasonable doubt as to his guilt -- Remand for attachment of portions of record conclusively refuting claim or for evidentiary hearing to address reliability of confession and likelihood that third party's testimony would have produced different outcome at trial
VIEW OPINION

Dissolution of marriage -- Error apparent from face of final judgment necessitates reversal despite absence of hearing transcript -- Equitable distribution -- Where it is clear from face of final judgment that trial court intended equal distribution of parties' assets and liabilities, but equitable distribution chart relied upon by trial court showed unequal distribution due to mathematical error, error must be corrected -- Child support -- Error in calculation of wife's child support payments, a result of miscalculation of gross annual income, is apparent on face of final judgment and must be corrected -- Child custody -- Appellate court unable to determine whether trial court abused its discretion when deciding on parties' parenting plan and time-sharing schedule by unduly focusing on wife's alleged indiscretions in its analysis of best-interest factors -- Because appellate court cannot conduct meaningful review in absence of transcript, this portion of final judgment must be affirmed
VIEW OPINION

Dissolution of marriage -- Child custody -- No abuse of discretion in awarding sole parental responsibility of four minor children to father or in temporarily suspending mother's time-sharing with children given mother's interference with love and emotional ties that had previously existed between father and children -- Error to fail to include in order the specific conditions mother must satisfy in order to reestablish time-sharing with children -- Abuse of discretion to delegate to father the determination of whether and when time-sharing can be reestablished
VIEW OPINION

Criminal law -- Trafficking in cocaine -- Evidence -- Statements of defendant -- Trial court did not err in suppressing defendant's unwarned admission during traffic stop concerning his possession of cocaine since it was a product of custodial interrogation -- Initial traffic stop was lawful because officer had probable cause to pull over defendant's vehicle after observing defendant failing to stop at red light -- Defendant was in custody where reasonable person placed in same position as defendant would believe his or her freedom of action was curtailed to a degree associated with actual arrest -- Suppression of cocaine derived from unwarned but voluntary statement by defendant during lawful traffic stop was not required -- Trial court did not err in failing to suppress cocaine discovered in defendant's vehicle, even though traffic stop extended beyond time necessary to write a traffic citation, because continued detention was justified where detective had sufficient reasonable articulable suspicion of criminal activity occurring, based on information of drugs being purchased from certain residence, observing defendant's encounter with person who recently entered the residence, and defendant's admission of picking up a gram of cocaine -- Trial court did not err in failing to suppress statements defendant made after invoking his Miranda rights because officers should not have known that conversation between them, in which defendant overheard them mentioning “trafficking” while defendant was in holding cell six feet away, was reasonably likely to elicit incriminating response from defendant -- Recorded conversation between defendant and person, who was neither a state agent nor acting at direction of any state agent, was properly admitted into evidence since it was not product of custodial interrogation -- No error in denying motion for judgment of acquittal
VIEW OPINION

Criminal law -- Post conviction relief -- Counsel -- Ineffectiveness -- Defendant did not establish prejudice under Strickland and is not entitled to post conviction relief on claim of ineffective assistance of counsel
VIEW OPINION

Criminal law -- Attempted second degree murder -- Jury instructions -- Lesser included offense -- Standard instruction -- Attempted voluntary manslaughter -- Giving of standard jury instruction on attempted voluntary manslaughter did not constitute fundamental error -- Error that occurs by instructing jury that “an intent to kill” is an element of manslaughter does not exist when instructing jury that defendant committed an act which was intended to cause death of victim -- Further, as worded, instruction did not confuse jury -- Questions certified whether standard jury instruction on attempted manslaughter constitutes fundamental error, and whether attempted manslaughter is a viable offense in light of Montgomery v. State?
VIEW OPINION

Criminal law -- Sentencing -- Correction -- Credit for time served -- No error in denying motion for credit for time served in drug treatment program -- Error to fail to address claim for credit for time served in county jail after sentencing while awaiting placement at rehabilitation center
VIEW OPINION

Criminal law -- Sentencing -- Correction -- Claim that sexual predator designation was improper because defendant did not possess requisite prior convictions was not barred by law of the case doctrine where issue was never decided on appeal
VIEW OPINION

Venue -- Torts -- Trial court erred in sua sponte transferring action alleging professional negligence and fraud in connection with purchase of real property to county in which real property was located based on conclusion that transferee county was the more convenient forum, because another lawsuit involving the same property was pending in that county, without affording parties notice and opportunity to be heard on issue of forum non conveniens -- Further, motion to dismiss was premised solely on contention that county in which complaint was originally filed was not a proper venue, and venue was proper in that county on at least one of plaintiff's causes of action
VIEW OPINION

Criminal law -- Double jeopardy -- Dual convictions for sale or delivery of oxycodone and trafficking in oxycodone with regard to same quantity of oxycodone violated double jeopardy -- Defendant's entry of open plea of no contest on multiple counts did not preclude later challenge to convictions on double jeopardy grounds, where defendant entered general plea, rather than plea based on plea bargain, double jeopardy violation is apparent from record, and there is nothing in record to indicate express waiver of right to appeal possible double jeopardy violation
VIEW OPINION

Torts -- Defamation -- Attorney's fees -- Proposal for settlement -- Error to deny prevailing defendant's request for attorney's fees pursuant to joint proposal for settlement on ground that proposal, which required plaintiff to make acceptance in writing, acknowledge that the “defendants are not admitting that they have said or done anything improper referable to the plaintiff,” and further acknowledge that the defendants were merely “attempting to purchase their peace from this plaintiff,” was ambiguous -- Trial court properly found that corporate defendant's proposal was made in good faith, although its employee had admitted making the statement at issue, where corporate defendant never admitted the statement was defamatory or that it was made by its employee in the course and scope of employment
VIEW OPINION

Municipal corporations -- Special assessments -- Trial court properly concluded that special assessment on all improved property within city limits to fund city's integrated fire rescue department was valid despite property owners' contentions that assessment was for services that did not specially benefit burdened properties, city's apportionment methodology was arbitrary, and city impermissibly spent assessment funds on unauthorized services and capital projects -- Special benefit -- Presumption of correctness attached to city's findings of special benefit where those findings were supported by expert testimony, and property owners did not produce sufficient countervailing evidence to overcome the presumption -- Apportionment -- City's apportionment methodology was a considered way of apportioning assessment to ensure that burden falling on each property would not exceed the benefit received -- Actual expenditures -- Supreme court ruling that fire rescue program funded by special assessment may not use its equipment and personnel to provide emergency medical services for accidents and illnesses does not preclude use of special assessment funds to purchase fire engine, hire cross-trained firefighters, acquire land for new fire station, and renovate existing fire rescue facilities -- Law does not require physically separate EMS and fire protection functions in order to preserve local governments' ability to fund fire protection services through special assessments, but requires an accounting separation, such as intra-account segregation used by the city in this case, and nothing more
VIEW OPINION

Criminal law -- Juveniles -- Sentencing -- Commitment level -- Trial court's reasons for departing from Department of Juvenile Justice's recommendation were inadequate under E.A.R. v. State
VIEW OPINION

Garnishment -- Jurisdiction -- Service of process -- Banks -- Error to deny national association's motion to quash service of process where return of service stated that process server served writ of garnishment on branch teller, and neither original nor amended return of service showed the absence of statutorily prescribed superior classes of persons who could have been served -- Moreover, amended return of service acknowledged that there was an officer present, but that writ was delivered to a lower level employee, who was not authorized under statute to accept service, rather than the officer -- Fact that bank teller stated she was authorized to accept service did not absolve process server of obligation to make further inquiry
VIEW OPINION

Criminal law -- Evidence -- Statements of defendant -- No abuse of discretion in denying motion to suppress statements to police during three interviews -- Defendant who was incarcerated on unrelated charges at time of first interview was not in custody for purpose of Miranda, where defendant's freedom was not more limited than during his normal jail routine -- Miranda warning given during first interview was sufficiently comprehensive and comprehensible -- Reasonable person in defendant's position would not have thought that he was in custody for Miranda purposes during second interview where defendant was not a suspect and was not confronted with evidence of his involvement in murder -- Third interview was non-custodial where recording of interview reveals that detectives allowed defendant to start conversation, did not confront defendant with evidence, and simply asked him to recount his version of events -- Grand jury -- Because defendant failed to secure a ruling on request for in camera review of grand jury testimony to determine whether it should be disclosed, issue was not properly preserved for appellate review -- Argument -- No abuse of discretion in denying motions for mistrial, even if prosecutor's comments during rebuttal closing may have been burden-shifting, because comments were fair reply to defense counsel's questions about what the state was hiding -- Jurors -- Peremptory challenge -- No error in granting state's peremptory challenge of African-American female juror who nodded her head and may have spoken to another African-American female juror, where record supports that state presented a race-neutral reason for strike, and state's race-neutral reason was sufficiently genuine
VIEW OPINION

Criminal law -- Dealing in stolen property -- Grand theft -- Trial court committed fundamental error by failing to instruct jury, pursuant to section 812.025, that it could not return a guilty verdict on both charges of grand theft and dealing in stolen property when charges are in connection with one scheme or course of conduct -- Trial court did not properly cure such error by adjudicating defendant guilty only on dealing in stolen property counts and discharging him as to grand theft count -- Remand for new trial, rather than reversing lesser offense conviction and affirming greater -- Conflict certified
VIEW OPINION

Criminal law -- False imprisonment -- Aggravated assault with firearm -- Battery involving domestic violence -- Evidence -- Hearsay -- Trial court abused discretion in admitting, as excited utterance, officer's testimony as to victim's statements to officer where sufficient time had passed to allow victim to reflect on what had transpired -- Trial court should have granted mistrial based upon having twice improperly admitted “prison” testimony implying defendant was convicted felon -- Errors were not harmless
VIEW OPINION

Torts -- Medical malpractice -- Action against ambulatory surgical center alleging anesthesiologist negligently caused an infection in decedent's spine while treating him at surgical center and that surgical center was liable because it had statutorily-created, nondelegable duty to provide decedent with non-negligent anesthesiology services -- No error in granting summary judgment in favor of surgical center because surgical center did not owe duty of care to decedent with regard to procedure performed by a physician selected by decedent -- Defendant had no right to control or direct anesthesiologist's treatment of decedent, so it cannot be held liable for doctor's negligence -- Summary judgment was appropriate on issue of defendant's apparent agency where defendant made no representation to patient that doctors were its agents, patient did not rely on defendant's reputation for treatment of pain in choosing physician, and nothing in record suggests that patient selected doctor because of anything defendant did to influence that decision -- Consent form patient signed after he selected physician to perform the procedure, which disclosed that doctor had financial relationship with defendant and authorized doctor to designate assistants, including those from defendant, to perform the procedure, does not inject apparent authority liability into case
VIEW OPINION

Workers' compensation -- Permanent total disability -- Evidence -- Vocational provider's report -- Judge of compensation claims abused discretion by excluding initial vocational provider's report, which complied with relevant statutory requirements and which was relevant and probative of claimant's vocational limitations, motivation to find alternative employment, vocational classification of claimant's work restrictions, and the likelihood that claimant could reasonably obtain or secure employment in light of his physical and vocational restrictions -- Although legislature has expressly limited workers' compensation litigants to one independent medical examination per accident, it has not created such a limit on vocational/rehabilitation providers -- Error was not harmless -- Employer/carrier's argument, raised for first time on appeal, that initial provider's report should have been excluded on basis of work product privilege is without merit
VIEW OPINION

Child support -- Modification -- Circuit court departed from essential requirements of law when it entered order prohibiting Department of Revenue from providing services to father in an action for downward modification of child support on ground that department had previously filed an action against the father on the mother's behalf and that department's modification petition was inequitable as a matter of law -- No conflict of interest resulted because department's counsel represents the department, not either parent -- If lower court concluded that department should have spent its time and resources seeking to recover for the mother what the father owes her, rather than seeking to arrange that father pay her a lesser amount, statute requires department to review child support obligation every three years to determine whether amount continues to be consistent with current support guidelines and may seek adjustment if appropriate, regardless of whether paying parent is current on his or her payments
VIEW OPINION

Criminal law -- Restitution -- Jurisdiction -- Trial court did not have jurisdiction to enter order of restitution where order was rendered after defendant filed notice of appeal
VIEW OPINION

Administrative law -- Department of Financial Services -- Workers' compensation -- Special Disability Trust Fund -- No error in denying self-insurance fund's applications for refund of money it paid to SDTF -- Claim that assessment is unconstitutional as applied to self-insurance fund that was formed in 2002 because reimbursement claims are limited to accidents occurring prior to January 1, 1998, is without merit
VIEW OPINION

Criminal law -- Second degree murder -- Jury instructions -- Use of standard jury instruction for lesser included offense of manslaughter by act did not constitute fundamental error requiring reversal of conviction for second degree murder as charged
VIEW OPINION

Insurance -- Windstorm -- Action against windstorm insurer by insureds whose mobile home was destroyed by hurricane -- Evidence -- Collateral source rule -- Where court allowed insurer to introduce evidence of the existence of insureds' flood insurance policy, insureds' submission of flood claim, and flood insurer's resulting adjustment of claim, it was not error to preclude insurer from introducing evidence of the dollar amount of flood insurance payments and estimates -- Jury instructions -- Trial court did not give constructive total loss instruction in error because substantial damage determination required demolition of insureds' home to allow for elevation in conformity with flood plain regulations -- Evidence of substantial damage determination was admissible as relevant to prove a constructive total loss -- Trial court did not err in declining insurer's proposed jury instruction on insureds' burden to prove damages caused solely by wind -- Court properly instructed jury that insureds had burden to prove losses sustained as a result of wind and that insurer would not be liable for loss caused by excluded perils such as water damage -- Trial court did not abuse discretion in failing to instruct jury to apply total loss recovery rule -- With regard to mobile home, it was not harmful error to instruct jury that damages should be the amount necessary to repair or replace damaged items -- Total loss of mobile home placed it under Valued Policy Law, and once jury found a total loss caused by wind, damages were fixed by statute -- With regard to other structures on property, they did not fall within purview of VPL, and jury should have been required to calculate damages to those other structures -- Interest -- With regard to mobile home, court did not err in awarding prejudgment interest from date of loss -- Court erred in awarding prejudgment interest on other structures from date of loss -- Because VPL does not apply to those other structures, interest should have been determined in accordance with policy, which allows insurer 60 days from date judgment is entered to make loss payments
VIEW OPINION

Workers' compensation -- Temporary partial disability -- Causal connection between compensable injuries and subsequent loss of wages -- Competent substantial evidence supported finding of judge of compensation claims that cessation of claimant's pre-injury employment was caused by her inability to perform the job due to her compensable injury, and that this displacement from employment resulted in a loss of wages which qualified her for TPD benefits -- Distinct from temporary total disability benefits, an employee's entitlement to temporary partial disability benefits is predicated on the ability to work, albeit with restrictions -- Claimant need only prove a causal connection between injury and loss of income -- Generally, test used to determine whether physical limitations after an accident are a contributing causal factor to a loss of wages is whether claimant's capabilities allow her to return to and adequately perform her prior job with the employer, and whether the workplace injury caused a change in employment status resulting in a reduction of her wages below 80% of her pre-injury wage -- There is no merit to employer/servicing agent's contention that claimant failed to satisfy her burden because she did not prove that her restrictions prohibited her from performing all other potentially available employment, because that standard governs total, not partial, disability claims -- JCC did not err in rejecting E/SA's voluntary limitation of income defense where E/SA neither introduced evidence of a job offered or procured for claimant, nor otherwise established a quantifiable earning capacity by which JCC could reduce TPD benefits otherwise payable during claimant's temporary recuperation from her injuries -- Job search is not required for entitlement to TPD benefits
VIEW OPINION

Criminal law -- Murder -- Attempted second degree murder with firearm -- Petit theft -- Evidence -- Statements of defendant -- Error to deny motion to suppress evidence of inculpatory statements made, after defendant invoked his right to counsel, when police reinitiated custodial interrogation without facilitating, or at least awaiting, opportunity for defendant to consult with counsel -- Where defendant invoked his right to counsel during custodial interrogation, was read his Miranda rights before he was permitted to speak to his brother, and subsequently made uncounseled statements after further police-initiated interrogation, fact that statements were made after Miranda rights were read did not render subsequent uncounseled statements admissible -- State failed to establish that erroneous admission of statements did not contribute to verdict -- Remand for new trial
VIEW OPINION

Workers' compensation -- Impairment income benefits -- Rate -- Error to fail to rule on correct rate of impairment income benefits payable for permanent impairment sustained by claimant based upon stipulated average weekly wage, rather than the lower weekly rate previously used for payment of impairment income benefits
VIEW OPINION

Criminal law -- Sentencing -- Cruel and unusual punishment -- Sentence of life in prison for crimes committed as a juvenile -- Remand for resentencing in light of recent U.S. Supreme Court ruling in Graham v. Florida and for appointment of conflict-free counsel
VIEW OPINION

Criminal law -- Sentencing -- Habitual offender -- Error to impose habitual felony offender sentence for offense of possession of cocaine
VIEW OPINION

Criminal law -- Sentencing -- Correction -- Amended sentence filed beyond sixty-day time period set forth in rule 3.800(b)(2)(B) is a nullity -- Minimum mandatory sentence of twenty years' imprisonment for shooting into a building is illegal because offense is a second-degree felony punishable by term of imprisonment not exceeding fifteen years, and it is not an offense for which the minimum mandatory sentence can be imposed
VIEW OPINION

Criminal law -- Attempted second degree murder -- New trial required on attempted second degree murder conviction due to use of standard jury instruction for attempted manslaughter by intentional act -- Error to impose public defender fee without advising defendant of his right to hearing to contest amount of fee -- On remand, court may reimpose fee provided it follows proper procedures by giving notice of intent to reimpose fee and opportunity to be heard -- Error to impose $100 cost pursuant to section 938.10 where case did not involve crime against minors
VIEW OPINION

Criminal law -- Post conviction relief -- Counsel -- Ineffectiveness -- Error to summarily deny claim that counsel was ineffective for failing to object to inclusion of victim injury points on sentencing scoresheet when defendant was resentenced after violating probation, where neither post conviction court's order nor attachments to that order conclusively refute ineffective assistance claim -- Victim injury points could not properly be included on scoresheet where no specific finding of injury to victims appears in record
VIEW OPINION

Criminal law -- Sentencing -- Guidelines -- Downward departure -- Evidence was insufficient to support imposition of downward departure sentence on basis of defendant's need for specialized medical treatment -- There was no competent, substantial evidence that treatment needed by defendant was unavailable through Department of Corrections
VIEW OPINION

Criminal law -- Lewd or lascivious exhibition -- Defendant's action of placing an anatomically-correct dildo into his mouth in the presence of a seven-year-old child did not constitute “sexual activity” within statutory definition -- Because section 800.04(7)(a)3 prohibits only the simulation of any act involving sexual activity, and the statute's definition of sexual activity does not include the simulation of oral sex with an object, defendant's action did not constitute lewd or lascivious exhibition -- Error to deny motion to dismiss information
VIEW OPINION

Contracts -- Action for unjust enrichment and breach of oral contract under which plaintiff and defendant agreed to cooperate in a charter bus business with plaintiff to receive a percentage of gross income -- Error to dismiss complaint which contained sufficient allegations to establish express oral contract or, in the alternative, an implied-in-fact contract -- Further, allegation that defendant knowingly accepted plaintiff's services and retained resulting proceeds stated cause of action for quasi-contract
VIEW OPINION

Criminal law -- Sexual battery on child -- Evidence -- Uncharged crimes -- Where defendant was charged with capital sexual battery by digital penetration of child, it was error to admit evidence of later incidents in which defendant came into bathroom while victim showered and touched her inappropriately -- Evidence was not admissible as evidence that was inextricably intertwined with charged crime where shower incidents occurred two years after the charged crime -- Evidence was not admissible as evidence of separate crimes or acts of child molestation where defendant had not been given notice of evidence state intended to offer
VIEW OPINION

Criminal law -- Post conviction relief -- Sentencing -- Credit for time served -- Although defendant is not entitled to receive credit for time served on each sentence when court imposes consecutive sentences, trial court erred in denying claim for credit for jail time served on ground that defendant had received credit for time served in a separate case without attaching portion of record to support conclusion that defendant had received jail credit on either of his sentences
VIEW OPINION

Counties -- In upholding approval by Board of County Commissioners of amendment to planned unit development, circuit court afforded adjoining landowners procedural due process and did not depart from essential requirements of law -- Adjoining landowners were not denied procedural due process when Board denied their request to cross-examine witnesses at quasi-judicial hearing in which amendment was approved -- Extent of procedural due process afforded to a party in quasi-judicial hearing is not as great as that afforded to a party in a full judicial hearing -- Florida law does not require that all participants in quasi-judicial proceedings be allowed to cross-examine witnesses
VIEW OPINION

Insurance -- Bad faith -- Sovereign immunity -- Citizens Property Insurance Corporation is immune from first-party bad faith claims
VIEW OPINION

Dependent children -- Termination of parental rights -- Appeals -- Challenge to sufficiency of evidence produced at termination hearing was not preserved for appeal where parent failed to move for judgment of dismissal at close of agency's case -- Moreover, termination order was supported by competent, substantial evidence
VIEW OPINION

Criminal law -- Murder -- Death penalty -- Post conviction relief -- Counsel did not render ineffective assistance by failing to argue that confession letter and in-court admissions made during pretrial proceeding were inadmissible under rule 3.172(i) -- Statements were admissible as party admissions and were not made in connection with offer to plead guilty -- Counsel did not render ineffective assistance in failing to object to in-court admission on ground that defendant had not been read Miranda warnings -- Because Miranda warnings are only necessary prior to custodial police interrogation, absence of Miranda warnings prior to making statements at court proceeding could not provide defense counsel with grounds for objection -- Lethal injection -- Constitutionality -- Trial court did not err in denying request for evidentiary hearing on issue of whether Florida's current lethal injection procedure violates constitutional prohibition on cruel and unusual punishment, where claim did not require factual determination -- Defense attorneys did not render ineffective assistance during penalty phase by failing to object to comment made by state during opening argument, presenting witness who brought partially damaging evidence, failing to sufficiently investigate and present mitigating evidence of defendant's religious faith and social background, presenting conflicting and unprepared expert witnesses, or failing to sufficiently emphasize mitigating issues during closing argument -- Roper v. Simmons does not render death sentence unconstitutional where defendant was eighteen years and nine months old at time of the offense -- Claim that trial court erred in not affording more weight to age-related statutory mitigating circumstance based on Roper is procedurally barred -- Proportionality of death sentence was raised and decided on direct appeal and, therefore, issue is procedurally barred -- Claim of cumulative error does not warrant relief where each individual claim of error is either meritless, procedurally barred, or does not meet Strickland standard for ineffective assistance of counsel -- Habeas corpus -- Habeas claim that death sentence is unconstitutional under Roper is procedurally barred, where arguments could have been or in fact were raised in rule 3.851 motion -- Defendant is not entitled to relief under Atkins where defendant has made no assertion that he suffers from mental retardation and evidence indicates defendant's IQ is significantly above 70 -- Appellate counsel did not render ineffective assistance by failing to properly present issue of conflict between defendant and trial counsel
VIEW OPINION

Attorneys -- Discipline -- Trust account violations -- Failure to file federal income tax returns and statement of intent to not file returns in the future -- Evidence -- Referee did not err in allowing Bar to introduce into evidence an order of a foreign state trial court in attorney's personal injury case -- No error in admitting testimony expressing opinion as to amount of income attorney received as a lawyer and whether amounts were sufficient to trigger obligation to file federal income tax returns -- Evidence was sufficient to support finding that attorney had taxable income and was required to file federal income tax returns -- There is no merit to attorney's claim that money earned from practice of law did not constitute income, and that he cannot be found guilty of violating Rules Regulating the Florida Bar because he has a good faith belief that he was not required to file federal income tax returns -- Permanent disbarment is appropriate discipline
VIEW OPINION

Criminal law -- Aggravated stalking -- Error to deny motion for judgment of acquittal on charge of aggravated stalking based on allegations that defendant harassed former wife after entry of final injunction against domestic violence where state failed to prove beyond reasonable doubt that defendant knew of entry of final injunction when he continued to harass victim -- Remand for entry of judgment of conviction for lesser-included offense of simple stalking
VIEW OPINION

Criminal law -- Post conviction relief -- Plea -- Order dismissing motion to enforce plea agreement, which trial court treated as rule 3.850 motion, without prejudice to filing facially sufficient motion is not a final order -- Appeal dismissed for lack of jurisdiction -- Post conviction court should enter revised order permitting defendant to amend motion within reasonable period of time not to exceed thirty days and then consider amendment in its final disposition or, if motion is not amended, enter final order disposing of defendant's claims
VIEW OPINION

Criminal law -- Second degree murder -- Jury instructions -- Justifiable use of deadly force -- Trial court erred in giving outdated instruction that defendant had duty to retreat before using deadly force -- Error was fundamental where instruction negated defendant's sole defense at trial -- New trial required -- Court notes that it was within trial court's discretion to allow jurors to ask questions during trial, but trial court should follow all of the procedures outlined in rule 3.371 if it exercises its discretion to allow such questions during criminal jury trial
VIEW OPINION

Torts -- Dismissal -- Appeal from order denying motion to vacate dismissal following counsel's failure to appear at case management conference -- Case was never dismissed where order of dismissal was never rendered -- Remand for further proceedings
VIEW OPINION

Criminal law -- Attempted second degree murder with firearm -- Prosecutor's attempt during closing argument to explain why the state's own witnesses were reluctant to testify and the inconsistencies in their statements by commenting about type of community where shooting took place and community's tendency to protect its members were improper, not because they appealed to racial prejudice, but because comments injected “facts” not contained in evidence -- Argument did not rise to level of fundamental error -- Prosecutor's bringing out fact that witness heard shooter say, “Yeah, that's the n---er” not improper because use of racial slur was relevant to shooter's state of mind as element of crime charged
VIEW OPINION

Torts -- Defamation -- False light invasion of privacy -- Action by public figure against media defendants based on statements made during television program about plaintiff's life and career -- No error in entering summary judgment in favor of defendants on defamation and false light claims where plaintiff failed to present record evidence that genuine issue of material fact existed which would allow jury to find, by clear and convincing evidence, that defendant published statements in question with actual malice -- Intention to portray public figure in negative light, even when motivated by ill will or evil intent, is not sufficient to show actual malice unless publisher intended to inflict harm through knowing or reckless falsehood
VIEW OPINION

Criminal law -- Aggravated kidnapping -- Error to adjudicate defendant guilty of two counts of aggravated kidnapping where charges were based on movement of child victims of sexual battery from front door of house to a bedroom where sexual battery occurred and victims were held in the room for only so long as the actual battery occurred and then released
VIEW OPINION

Attorney's fees -- Prevailing party -- Award of attorney's fees to tenant prevailing in landlord-tenant dispute must be reversed where underlying judgment in favor of tenant was reversed on appeal
VIEW OPINION

Criminal law -- DUI manslaughter -- Evidence -- Expert -- No abuse of discretion in granting state's motion in limine excluding testimony of toxicologist that driver of vehicle defendant hit was also impaired, where testimony was not relevant to material issue in this intersectional collision case of who had green light at the intersection, and defendant was not deprived of his defense -- Even if evidence of other driver's alcohol consumption may have been relevant where only evidence as to who had green light was testimony of two drivers, exclusion of evidence was harmless error, because there was ample, independent evidence as to who had the green light other than testimony of other driver
VIEW OPINION

Injunctions -- Repeat violence -- Error to enter injunction against repeat violence where evidence was sufficient to establish commission of single act of violence against victim, but there was no evidence of second instance of violence -- Verbal threats against victim, in absence of some overt act demonstrating that violence is imminent, does not constitute an assault
VIEW OPINION

Criminal law -- Sentencing -- Correction -- Credit for time served -- Jail time -- Error to deny Rule 3.800(a) motion for additional credit on ground that plea transcript showing defendant agreed to credit for 28 days conclusively refuted motion for additional 148 days of credit, in absence of evidence that defendant knew of his alleged entitlement to additional credit and voluntarily relinquished that right -- A stipulation as to a specific amount of credit is not sufficient to demonstrate that a defendant knowingly and intelligently waived credit to which he otherwise would be entitled, in absence of evidence that defendant knew of his entitlement to additional credit and voluntarily relinquished that right
VIEW OPINION

Dissolution of marriage -- Attorney's fees -- Fee award requiring reimbursement of 75% of spouse's attorney's fees was not supported by record where record reflects that parties have same approximate disposable income -- While record may support award for slight percentage of fees in favor of one spouse, it clearly does not support award of 75%
VIEW OPINION

Criminal law -- Mandamus -- Prisoners -- Gain time -- Challenge to disciplinary order taking away gain time -- Venue
VIEW OPINION

Criminal law -- Probation revocation -- Failure to participate in substance abuse rehabilitation program -- Religious accommodation to participate in program -- Evidence supported finding that defendant violated probation despite substantial offers to provide accommodation
VIEW OPINION

Contracts -- Damages -- Limitation of liability provision precluding consequential damages
VIEW OPINION

Creditors' rights -- Garnishment -- Motion to dissolve writ of garnishment was properly denied as untimely
VIEW OPINION

Injunctions -- Trial court erred in entering temporary injunction without specifying reasons and without requiring bond
VIEW OPINION

Judges -- Disqualification -- Petitioner is entitled to writ of prohibition where alleged comments of trial judge could reasonably have caused her to fear that she would not receive a fair trial
VIEW OPINION

Criminal law -- Search and seizure -- Consent -- Investigatory stop -- Where one officer positioned his vehicle directly in front of defendant and pointed the vehicle's spotlight on defendant, another officer approached defendant on foot in a manner that indicated a sense of urgency, and immediately thereafter two other officers joined at the scene, there was an investigatory stop of defendant, and not a consensual encounter -- Because there was no reasonable suspicion of criminal activity, there was no justification for investigatory stop, and defendant's consent to search during investigatory stop while one of the officer's retained his license to run a warrants check was not voluntary -- Error to deny motion to suppress cocaine seized in search of defendant
VIEW OPINION

Insurance -- Commercial property -- Change of coverage from replacement cost to actual cash value -- Broker was no longer insured's agent after binder had expired and policy had issued -- After policy had issued, broker had no authority to instruct insurer to eliminate replacement cost coverage -- There is no merit to insurer's contention that it had never issued a policy to insured because the condition precedent in the binder, requiring a replacement cost appraisal within thirty days, had not been met -- Condition stating that binder was subject to “receipt of current replacement cost appraisal within thirty (30) days of effective date,” was ambiguous because it was silent as to which party had the obligation to perform the appraisal -- Trial court erred in entering summary judgment for insurer in insured's breach of contract action after insurer had paid insured's claim for hurricane damage to insured's property at actual cash value rather than at replacement cost
VIEW OPINION

Insurance -- Commercial general liability policy issued to landscaping contractor who was hired by property owner to trim mangroves on waterfront property -- Exclusions -- Where policy excluded damage to that particular part of real property on which insured is performing operations, if the property damage arises out of those operations, policy did not provide coverage for damage caused when owner's mangrove trees were cut below the ten-foot level in violation of permit issued by Department of Environmental Protection -- Exclusion was not applicable to damage caused by trimming of mangroves on seaward side of mean high-water mark on land owned by state in violation of permit, and coverage was provided for those damages -- Although trial court correctly differentiated between areas which were incorrectly trimmed on owner's property and on property of non-party to landscaping contract, court improperly determined that insurer is responsible for all of each of the three components of loss in the event that it is not possible to apportion damages between those attributable to mangrove cutting on private owner's land and those attributable to cutting on state land
VIEW OPINION