FLORIDA WEEKLY APPELLATE LAW REVIEW

Florida Appellate Law Review: 4th of July Freedom Edition

Nothing says freedom like new appellate court decisions. Be safe this weekend.

Florida Supreme Court:

Nothing this week, which hopefully means they’re taking full advantage of the holiday weekend.

In other FLSC news, Justice Jorge Labarga was just selected as the first Cuban-American Chief Justice. He will serve in this position for the next two years.

First DCA: 

Ibeagwa v. State:

Appeal from conviction of aggravated manslaughter of a child where the defendant, the mother, left her two children (ages 6 and 3) alone at home to go to work. Appellate court upheld the conviction, and held that leaving children unsupervised for hours served as adequate prima facie evidence of child neglect by culpable evidence, and was sufficient for the trial court to deny a judgment of acquittal and send the issue to the jury.

Second DCA: 

Fox v. Polk County Sheriff’s Office:

Prisoner not entitled to gain time for time spent in custody of Sheriff’s Office, and the Sheriff’s Office was not able or required to award gain time against a Department of Corrections sentence.

Third DCA: 

R.J. Reynolds v. Mooney:

Appellate court held that defendant tobacco company was not entitled to a change of venue where two of the witnesses were located outside of the venue county. There was no evidence that it would be substantially inconvenient for these witnesses to travel to the venue county.

An aside – this is another example of the tobacco companies’ legal tactics – find a reason to file a motion to delay the progress of the case, then once it’s denied, appeal it to gain more time.

Miccosukee Tribe v. Bermudez:

A judgment is not collectible against a non-party even though that non-party funded the legal fees for the defendant. Here, the Miccosukee Tribe funded the legal fees of the defendants (citizens of the Tribe). A useful comparison here is how insurance companies fund the legal defense of its insured, but if an excess judgment is entered against the insured, the insurance company isn’t liable for that judgment unless it acted in bad faith in rejecting a settlement offer.

Beckman v. State:

Defendant, convicted of first-degree murder, could be compelled to have a psychological exam  by the state’s psychological expert for sentencing where defendant listed a psychologist on the witness list for a sentencing hearing.

Fourth DCA:

Rodrigues v. State:

Appellate court held that the trial court did not err in allowing the prosecution’s experts to testify about the defendant’s son’s opinion of her sanity where the defendant failed to contemporaneously object.

R.J v. State:

State is not required to prove a juvenile’s age in order to vest jurisdiction in the juvenile division of the circuit court. The divisions of the circuit court (civil, juvenile, felony) are only divisional, and do not mean the divisions have exclusive subject matter jurisdiction over certain types of cases.

Phillips v. State of Florida:

Court erred in determining the amount of restitution due the victim in a theft case where the court relied on hearsay evidence in determining value. The victim had researched the value of the stolen property online, and then testified about what she had found.

Pierre v. State:

Appellate court held that defendant’s counsel was ineffective for failing to argue on appeal that the wrong manslaughter jury instruction was given to the jury, and for failing to notify the court about favorable case law from other jurisdictions.

Fifth DCA: 

Millenia Day Spa v. Wigley:

Comments by defense attorney that “this is a courtroom, not a lottery” were not enough to damage the fairness of the trial and require a new trial.

Prater v. State:

State did not sufficiently prove that defendant violated his probation with a new arrest where it introduced a citation for driving with a suspended licence, but the defendant asserted his Fifth Amendment right when asked if he was driving on the date of the citation.

Department of Highway Safety and Motor Vehicles v. Futch:

DHSMV hearing officer improperly refused to allow Futch’s expert to testify at the hearing, and the Circuit Court erred when upon hearing Futch’s appeal it ordered the department to simply reinstate Futch’s license instead of remanding the case back for a new administrative hearing.