FLORIDA WEEKLY APPELLATE LAW REVIEW

Florida Appellate Law Review: August 17-22 Edition.

Supreme Court:

No opinions this week as the summer break ends. Expect new opinions beginning next week.

First DCA: 

Bass v. State of Florida:

A defendant’s (who was in jail awaiting trial) recorded telephone conversation with his mother regarding how much prison time he would accept in a plea deal was admissible in the trial, because it was not a recording of a plea negotiation with an attorney or police officer, but was simply the defendant answering questions about how much prison time he was willing to serve.

Denson v. State of Florida:

The trial court did not err in sentencing the defendant to consecutive mandatory minimum prison terms for attempted first-degree felony murder, attempted robbery and carrying a concealed firearm.

Ford v. State of Florida:

The trial court erred in reclassifying the defendant’s convictions to life felonies where the jury specifically found that he did not possess a firearm during the commission of the crimes.

Second DCA:

Tower Hill Select Ins. Co. v. McKee:

The homeowner did not preemptively file a lawsuit in a homeowner’s claim because the insurance company had denied his claim prior to him filing suit, and the complaint properly sought a determination of whether the insurer breached the contract by denying payment for a covered loss.

Tulier v. State of Florida:

Defendant’s offer to pay $400 for a blow job from a minor while the minor was riding a bike next to the defendant’s car was not an act toward the commission of sexual activity of a minor, but was merely solicitation. Calling the intended victim over to the car merely amounted to preparation, and was not an act sufficient to establish the crime of attempt.

Maldonado v. State of Florida:

Defendant was entitled to credit to time served even though she signed a waiver as part of the drug court participation agreement, because that waiver did not conclusively refute the defendant’s claim she was entitled to credit for time served as a drug court sanction or while she was awaiting sentencing.

Third DCA:

State of Florida v. Fernandez:

Trial court erred in applying a three-year statute of limitations to a charge of grand theft, where the applicable statute of limitations is five years. Additionally, the appellate court held that for the defendant’s 21 charges of obtaining fraudulent benefits, only 4 fell within the applicable three-year statute of limitations.

Fourth DCA:

Tindal v. State of Florida:

Appeal from conviction of grand theft and petit theft for the defendant stealing items from multiple victims. Defendant was entitled to a judgment of acquittal on a charge of grand theft where the prosecution failed to introduce evidence of the fair market value or the condition of a stolen laptop at the time it was stolen. The appellate court held that the separate thefts charged by the state occurred during the same criminal episode, the defendant could only be convicted of one count of second degree petit theft. Finally, the appellate court held that the requirement for the defendant to be gainfully employed or in vocational training was an illegal condition of probation.

Henry v. State of Florida:

Defendant’s conviction of second-degree murder was upheld where the defendant beat the victim with a baseball bat due to believing that the victim had burglarized his home the previous day. The appellate court held that the defendant’s behavior in following the victim and beating him in a parking lot with a bat was not merely reckless, but showed a depraved mind regardless of human life enough to satisfy the mens rea requirement of second degree murder.

Prinz v. State of Florida:

Appellate court held that the defendant was not trequired to pay the victim restitution for bookkeeping and accounting expenses where the defendant was charged with embezzlement, and the basis for the restitution for accounting and bookkeeping came only from the victim’s testimony.

Rodrigo v. State Farm Florida Ins. Co.:

A homeowner’s claim resulted from a dead body in the condo next door to the insured condo leaking bodily fluids and causing damage. Insurer did not waive the requirement for submission of a sworn proof of loss by tendering tendering payment as part of engaging in negotiations toward possible settlement of the claim. The appellate court also held that the dead body next door was not covered under the term “explosion” in the language of the policy.

Hunt v. State Farm Florida Ins. Co.:

Home insurer was entitled to summary judgment in its favor where the policyholders were required to submit a sworn proof of loss within 60 days of the loss, but did not do so until 5 years later. The insureds did not present any evidence rebutting the prejudice the insurer claimed to suffer as a result of the tardy proof of loss.

Deal v. State of Florida:

Trial court erred in denying the defendant’s motion for continuance of a violation of probation hearing when the defendant told the court he was seeking to hire private counsel. The trial court failed to make an adequate inquiry into whether going ahead with the violation of probation hearing would arbitrarily deny the defendant’s right to counsel of his choosing.

Dennard v. State of Florida:

Dennard was not entitled to a correction of a 22 year sentence for sexual battery (exceeding the 15 year maximum) because he previously raised that claim twice, it was denied by the trial court twice, and he failed to appeal those denials, and thus collateral estoppel and law of the case doctrines applied.

Brana et al v. Roura:

The appellate court held that the petitioners, who are a spinal surgeon and insurers, were entitled to a protective order preventing discovery of financial payments made to the surgeon by the insurance companies.

Fifth DCA:

Lee v. State of Florida:

The defendant was entitled to a competency hearing where three psychological evaluations were done. The court has the responsibility to act as the finder of fact and determine competency.