Abstract Appeal

• Fifth District Appointment

  Congratulations to Indialantic's Judge Bruce Jacobus. Yesterday, Governor Crist appointed Judge Jacobus to the Fifth District. Judge Jacobus spent the last 14 years as a judge with the 18th Judicial Circuit. He takes the seat vacated when Judge Pleus retired. You can read the Governor's press release announcing the appointment here. [...]
  Share | Rate | Archive

  Posted: August 06, 2009, 8:45am EDT
  

• Fifth District: Grandparental Custody

  Can grandparents obtain primary residential responsibility over their grandchildren, better known as custody, without adopting them? Yes, explained the Fifth District in this decision, which involved a mother who consented to the placement and a father whose identity was allegedly unknown. [...]
  Share | Rate | Archive

  Posted: August 06, 2009, 8:40am EDT
  

• Fifth District: Great Way To Lose, Treating Physician Discovery

  I recently posted on a Fifth District decision that seemed a bad way to win. Well, here we have a decision from the same court that seems like a great way to lose. The case involved a certiorari petition seeking relief from a trial court's order denying discovery. The order refused [...]
  Share | Rate | Archive

  Posted: August 06, 2009, 8:35am EDT
  

• Fifth District: Entrapment

  If you are interested in entrapment, take a look at this decision from the Fifth District. It is rather short but gives a good overview of the distinction between the objective entrapment test, which focuses on how the government official's conduct would affect a reasonable person, and the subjective entrapment [...]
  Share | Rate | Archive

  Posted: August 06, 2009, 8:32am EDT
  

• Back In Blog

  Whew. A couple of hard weeks of work just flew by. Thanks to the many who sent me comments on that last post. They were both entertaining and insightful. [...]
  Share | Rate | Archive

  Posted: August 06, 2009, 8:28am EDT
  

• St. Pete Times: HERE'S THE INFORMATION YOU ARE NOT SUPPOSED TO LEARN

  My local paper, the St. Petersburg Times, has a notable story today on the front page of the local section. Using bullet points, it describes what a jury will not be told in a local trial that started yesterday. The story, which you can read online here, concerns a murder trial. [...]
  Share | Rate | Archive

  Posted: July 22, 2009, 9:50am EDT
  

• Fourth District: Insurance

  Insurance fans may be very interested in this decision. The Fourth District reversed an order enforcing a settlement, holding that an insurer's response to a settlement demand constituted a counteroffer, not an acceptance, because the response contained a release that included objectionable, not "usual," terms. The court initially paraphrased the not [...]
  Share | Rate | Archive

  Posted: July 22, 2009, 9:19am EDT
  

• Fourth District: Hearsay

  Under this decision from the Fourth District, you can add certificates of non-licensure from the Construction Industry Licensing Board to the list of non-testimonial hearsay items that can be admitted against a criminal defendant consistent with Crawford v. Washington. [...]
  Share | Rate | Archive

  Posted: July 22, 2009, 9:13am EDT
  

• Fourth District: PSIs

  To impose a habitual offender sentence, Florida law requires a pre-sentence investigation. That requirement is said to amount to a right to a PSI before being sentenced as a habitual offender. Can counsel waive that right, or is it the sort of right only the individual should be able to [...]
  Share | Rate | Archive

  Posted: July 22, 2009, 9:10am EDT
  

• Ineffective Assistance -- Winning In The Worst Way?

  Appellate friends, is there such a thing as a bad win? If there is, then this decision released earlier today by the Fifth District might be an example. A criminal defendant appealed his convictions for tampering with physical evidence and resisting arrest without violence. The district court never reached the issues [...]
  Share | Rate | Archive

  Posted: July 17, 2009, 11:31am EDT
  

• Fifth District: Forum Selection Clauses

  A contract includes this language: "The parties consent to the exclusive jurisdiction of the courts located in New York City, USA." Is that forum selection provision permissive or mandatory? Mandatory, as Fifth District explained in this decision. [...]
  Share | Rate | Archive

  Posted: July 17, 2009, 11:28am EDT
  

• Fifth District: Final Contractor's Affidavit

  Construction fans should be interested in this decision. The Fifth District explained that while providing a final payment affidavit is a condition precedent to a statutory lien foreclosure claim, that condition can be waived where the defendant does not raise its failure with particularity in the answer. [...]
  Share | Rate | Archive

  Posted: July 17, 2009, 11:23am EDT
  

• Fifth District: Legal Duties and Ultimate Facts

  Does a police officer executing a search warrant for a home owe a duty of care to an occupant of the residence? Considering that a police officer's actions create a duty of care where the officer's conduct creates a foreseeable zone of risk to an individual or group, the question could [...]
  Share | Rate | Archive

  Posted: July 17, 2009, 11:19am EDT
  

• Fifth District: Mandamus, Disqualification

  This decision from the Fifth District shows that a petition for writ of mandamus can be used to compel the reassignment of trial judges where the 30-day period to rule on a disqualification motion has expired without a ruling. [...]
  Share | Rate | Archive

  Posted: July 17, 2009, 11:17am EDT
  

• Fifth District: Fighting Words

  Concerned that a lesser standard could cross lines drawn by the First Amendment's free speech clause, the Fifth District in this case reversed a juvenile's disorderly conduct conviction because the juvenile's loud, profane words did not incite others to breach the peace or present an imminent danger to others. [...]
  Share | Rate | Archive

  Posted: July 17, 2009, 11:15am EDT
  

• Fifth District: Violence

  When is exhibitionist behavior considered sexual violence? When applying Florida's Jimmy Ryce Act to keep sexually violent persons involuntarily committed, as the Fifth District explained in this decision. [...]
  Share | Rate | Archive

  Posted: July 17, 2009, 11:10am EDT
  

• Fifth District: Family Law

  Family law practitioners may be interested in this reminder from the Fifth District that rule 12.490(f) requires courts to hold hearings on timely filed exceptions to magistrate reports. [...]
  Share | Rate | Archive

  Posted: July 17, 2009, 11:05am EDT
  

• Fifth District: Insurance and Attorney's Fees

  This decision really caught my eye. The Fifth District denied an attorney's fees motion made by an insured in a certiorari proceeding. The insured lost the proceeding on grounds any error would be remediable on plenary appeal. In that context, the denial of fees was not remarkable -- a few years [...]
  Share | Rate | Archive

  Posted: July 14, 2009, 8:55am EDT
  

• Fifth District: Default Judgments

  Part of me constantly fears overlooked deadlines. That same part is always relieved to see decisions setting aside default judgments. This decision from the Fifth District does so, and it points out that reasonable misunderstandings originating from clerical errors can establish excusable neglect. The decision suggests that the appellee used some [...]
  Share | Rate | Archive

  Posted: July 14, 2009, 8:50am EDT
  

• Fifth District: Visitation

  Family law practitioners may be interested in this opinion. The Fifth District determined that the trial court improperly delegated its decisionmaking authority regarding visitation to one party's expert. The appellate court seemed more than a bit concerned that, without findings to support the decision, the final judgment forbid the former [...]
  Share | Rate | Archive

  Posted: July 14, 2009, 8:39am EDT
  

• Florida Supreme Court: Appointment Time (continued)

  Before delving into other recent decisions, I would like to return to last Thursday's mandamus decision by the Florida Supreme Court. The court faced a petition for a writ of mandamus filed by retired Judge Robert Pleus, formerly of the Fifth District. The petition asked the court to order Governor [...]
  Share | Rate | Archive

  Posted: July 07, 2009, 7:01am EDT
  

• Back In Blog

  ... later today. [...]
  Share | Rate | Archive

  Posted: July 06, 2009, 9:24am EDT
  

• Florida Supreme Court: Appointment Time

  Today, the Florida Supreme Court issued this decision, which holds that Governor Crist must select district court of appeal judges within 60 days of receiving a list of nominees from the Judicial Nominating Commission. The court granted a petition by Senior Judge Robert Pleus to require the Governor to select [...]
  Share | Rate | Archive

  Posted: July 02, 2009, 11:11am EDT
  

• Fifth District: Serious About Subject Matter Jurisdiction

  Florida's appellate courts can and should raise the issue of subject matter jurisdiction when the parties ignore or overlook it. Recently, the Fifth District has issued two decisions that, sua sponte, delve into that area. One is rather simple. The other is simply significant. This decision shows that the inquiry can extend [...]
  Share | Rate | Archive

  Posted: June 04, 2009, 7:25am EDT
  

• Fourth District: Arbitration, Part II

  In the second of two arbitration decisions that the Fourth District released last week, available here, a divided court affirmed a waiver determination. The majority opinion is just over four pages long and includes three footnotes that were nearly as long as the opinion's text. The court ultimately affirmed the trial [...]
  Share | Rate | Archive

  Posted: June 04, 2009, 7:10am EDT
  

• Fourth District: Arbitration, Part I

  In the first of two arbitration decisions released last week by the Fourth District, the court held that a "mere attempt to settle a dispute outside the courtroom" does not establish a waiver of the right to arbitrate. The decision is available here. [...]
  Share | Rate | Archive

  Posted: June 04, 2009, 7:02am EDT
  

• Fifth District: Additur

  When should a trial court order a new trial on liability -- not just damages -- after a party adversely affected by a potential additur objects to increasing the jury's verdict? In this decision, the Fifth District explains that the answer is when liability was "hotly contested." Perhaps one might consider [...]
  Share | Rate | Archive

  Posted: June 01, 2009, 7:30am EDT
  

• Fourth District: Hey, Criminal Rules Committee

  Now that the supreme court has dealt with complex case management, the Fourth District would apparently like the high court and the criminal rules committee to turn their rulemaking attention to something that is supposed to be less complicated: post-conviction relief. Rule 3.851 imposes a 75-page limitation on post-conviction motions in [...]
  Share | Rate | Archive

  Posted: June 01, 2009, 7:28am EDT
  

• Florida Supreme Court: It's Complicated

  In this decision, the Florida Supreme Court accepted, with modifications, the recommendations of a complex litigation task force and adopted a new rule of civil procedure to address complex civil case management. The court did so over the unanimous objection of all members of the civil rules committee. New rule 1.201 [...]
  Share | Rate | Archive

  Posted: June 01, 2009, 7:20am EDT
  

• Certified Conflict: Standing Your Ground

  In 2005, Florida adopted this law, which codified and expanded the common law's castle doctrine to include homes and vehicles and eliminated the duty to retreat from places where a person has a right to be. Some may recall the claims, including those made by major media such as the [...]
  Share | Rate | Archive

  Posted: June 01, 2009, 7:14am EDT
  

• Fourth District: Attorney-Client Privilege

  This decision from the Fourth District shows that where a client testifies against the client's attorney at a deposition in a malpractice action, that testimony is not protected by the attorney-client privilege. The court denied a certiorari petition seeking to prevent discovery of such a deposition. [...]
  Share | Rate | Archive

  Posted: June 01, 2009, 7:12am EDT
  

• Fifth District: Constitutional Constraints

  In a provision with a lengthy history, the Orange County charter authorizes a local board to review citizen complaints against the county sheriff's deputies and employees. In this thoughtful decision, the Fifth District examined that provision, its place in the county's charter-based government, and the conflicts between the charter's provisions and [...]
  Share | Rate | Archive

  Posted: June 01, 2009, 7:10am EDT
  

• Fifth District: Communication Breakdown

  The Fifth District would appreciate more communication between counties that have charges pending against a single defendant. In this case, the court concluded a speedy trial violation occurred, requiring charges to be dismissed, after Indian River County would not transfer the defendant to Orange County for trial. [...]
  Share | Rate | Archive

  Posted: June 01, 2009, 7:10am EDT
  

• Fourth District: Appealability

  Just a reminder here from the Fourth District that a notice of appeal does not permit an appellate court to review acts committed by the lower court after the appellant filed the notice. [...]
  Share | Rate | Archive

  Posted: June 01, 2009, 7:06am EDT
  

• Fifth District: Amendment 7

  The saga of article X, section 25, continues. In this decision, the Fifth District held that the constitutional provision still known by its 2004 ballot number supersedes the work product privilege with respect to fact work product, though not opinion work product. [...]
  Share | Rate | Archive

  Posted: June 01, 2009, 7:03am EDT
  

• Back In Blog

  A few things kept me away from here over the past two weeks. I completed three briefs, worked on several more, had an oral argument in Miami, took a quick trip to Baltimore, spoke at this function in Orlando, and, by reading this book, waded into a tremendously interesting area [...]
  Share | Rate | Archive

  Posted: June 01, 2009, 7:01am EDT
  

• Second District: Certiorari and Discovery Denials

  Civil practitioners, add this decision from the Second District to the growing pile of modern appellate cases that utilize certiorari to review and quash a trial court order denying discovery. Certiorari in the discovery context has long centered on "cat out of the bag" orders that require discovery to be exchanged. [...]
  Share | Rate | Archive

  Posted: May 14, 2009, 7:12am EDT
  

• Second District: School Employees

  Government employment can lead to some legal peculiarities, such as how employees may receive immunity from the use of statements made under threat of adverse employment action for the failure to answer questions, thus leading to an employee's obligation to answer without Fifth Amendment protection. Such lofty notions were at issue [...]
  Share | Rate | Archive

  Posted: May 14, 2009, 7:05am EDT
  

• Second District: Sentencing

  Sentencing fans -- you're out there, I know -- can have much fun with this decision from the Second District. The court spends some time on a subject it knows much about (whether a sentence is an illegal one under rule 3.800(a)), a subject it newly encounters (whether an illegal but' [...]
  Share | Rate | Archive

  Posted: May 14, 2009, 7:01am EDT
  

• Supreme Path on Children's Behalf

  This week proved to be a briefwriting bonanza for me, and the fun kept me away from here and discussing this week's big news out of Florida -- the U.S. Supreme Court's order granting review of the First District's decisions in Graham v. State and Sullivan v. State. Of course, now [...]
  Share | Rate | Archive

  Posted: May 08, 2009, 8:45am EDT
  

• Law Day

  Today is Law Day. To help promote it, I had the good fortune to speak last week to two history classes at a local high school. I always enjoy speaking with students about the law -- they pay attention and always have terrifically interesting questions about how the law can [...]
  Share | Rate | Archive

  Posted: May 01, 2009, 9:40am EDT
  

• Untimely

  If you follow national legal news, you probably learned from items like this one about Mark Levy's apparent suicide yesterday morning. Mark headed up the appellate group at Kilpatrick Stockton in Washington D.C. I did not know Mark well but I was part of the planning committee that created the first [...]
  Share | Rate | Archive

  Posted: May 01, 2009, 9:06am EDT
  

• Third District: Oral Summary Judgment Motions

  Observing that it goes without saying that one cannot serve an oral motion for summary judgment, and of course saying it, the Third District quashed a circuit court's appellate decision affirming an order granting such a motion. You can read the second-tier certiorari decision here. [...]
  Share | Rate | Archive

  Posted: April 30, 2009, 8:29am EDT
  

• Eleventh Circuit: The Reality of Virtual Contact

  The federal sentencing guidelines include a sentence enhancement where a defendant's offense involves sexual contact. In this case, the offense involved a self-stimulating act conducted in front of an Internet camera being viewed by an undercover police officer whom the defendant believed to be a minor. Was that sexual contact? Yes, [...]
  Share | Rate | Archive

  Posted: April 30, 2009, 8:25am EDT
  

• Third District: A Disturbed Affirmance, Names To Follow

  Prosecutors, take note: "harmless" misconduct may still get you named in the Southern Reporter. The Third District's opinion and Judge Ramirez's concurring opinion in this case reflect serious concerns with the prosecutor's closing arguments in the trial below. The court affirmed the defendant's conviction based on harmless error, but the court quoted [...]
  Share | Rate | Archive

  Posted: April 28, 2009, 8:05am EDT
  

• Third District: Sealing Records

  The Third Distict would like to make a point about sealing records: if you wish to file something under seal, your motion should utilize the standards set forth in Barron v. Florida Freedom Newspapers, Inc. The court made this point publicly by publishing this order, which denied without prejudice an appellant's' [...]
  Share | Rate | Archive

  Posted: April 28, 2009, 8:03am EDT
  

• Third District: Class Actions

  Class certification fans will surely be interested in this divided decision by the Third District. The court reversed a certification order involving overcharges made by a finance company. The majority opinion -- actually, both majority opinions -- concluded that the lack of uniform, knowing conduct by the defendant made the [...]
  Share | Rate | Archive

  Posted: April 28, 2009, 8:00am EDT
  

• Fifth District: Contracts

  Contracts fans may be interested in this decision from the Fifth District. The case involved an attempt to bind municipalities to an agreement that their governing boards never approved. Overruling a trial court that ordered the purported agreement enforced, the appellate court explained why the statute of frauds could not [...]
  Share | Rate | Archive

  Posted: April 28, 2009, 7:58am EDT
  

• Fourth District: Appellate Traps, Pro Se Filings

  Appellate practice can seem so simple, right? Draft a brief. Deliver an oral argument. Try to explain why a per curiam affirmance is an injustice.... The truth is that appellate practitioners tend to live in serious fear of procedural slip-ups. It can happen to anyone, and the only protection from a [...]
  Share | Rate | Archive

  Posted: April 27, 2009, 9:00am EDT
  

• Judge Warner: Hey Rules Committees...

  In a concurrence to this decision, Judge Warner recommends that the Criminal Procedure and Appellate Rules Committees amend rules 3.800(a) and 9.141 to set forth the record attachments requirement imposed by case law. In a time of budgetary crisis, where workload efficiencies must be maximized, her words ring out: Substantial time and [...]
  Share | Rate | Archive

  Posted: April 27, 2009, 8:55am EDT