Florida Weekly Appellate Law Review – August 10-15 Edition
Florida Appellate Law Review: August 10-15 Edition.
Supreme Court:
No opinions this week.
First DCA:
Kilpatrick v. State of Florida:
In an appeal from the denial of a Rule 3.850 motion, the appellate court held that the defendant’s trial counsel was not ineffective for failing to call a witness the attorney reasonably believed would offer perjured testimony.
The appellate court affirmed a downward departure in sentencing following convictions of using a computer in violation of section 847.0135(3)(a), Fla. Stat. and traveling to meet a minor, and certified conflict with the Fifth DCA in doing so.
Appellate court reversed a conviction of failure to report or register as a sex-offender because the trial court failed to determine the genuineness of the prosecutor’s use of a peremptory challenge to remove an African_american person from the jury pool. Although the prosecutor gave a race-neutral reason for removing the juror when challenged, the trial court failed to make a inquiry as to whether the reason was genuine.
Second DCA:
Lopez, et al v. State of Florida:
This appeal came out of RICO convictions for a group of people importing heroin into Tampa from Puerto Rico. During the trial, the jury heard recordings of telephone calls in Spanish, but was provided transcripts of those calls translated into English by police officers. The appellate court held that the state is not required to obtain translations by an independent translator if its own agents can present enough of a predicate to satisfy the trial judge that the issue of the accuracy of the translations is a matter for the jury to decide.
Hernandez v. State of Florida:
The appellate court found that the defendant’s sentence created an unrebutted presumption of vindictive sentencing, where the defendant was sentenced to 14 years on a burglary charge following an open plea of no contest. The prosecution had originally offered 5 years in exchange for a plea, which would be reduced in the event that the defendant provided substantial assistance against a potential co-defendant. However the judge found that he had not given the police substantial assistance following his plea, and sentenced him to 14 years.
Third DCA:
Appellate court held that the evidence presented at trial was legally insufficient to support a charge of criminal mischief where there was no direct evidence that the defendant caused damage to property, and no testimony regarding the condition of the property before the defendant came into contact with it.
Appeal from the trial court’s denial of attorney’s fees pursuant to a Rule 57.105 motion where the plaintiff’s case was dismissed on summary judgment. For a party to be entitled to attorney’s fees under Rule 57.105, they must prove that the other party’s claim is meritless. In this case, the defendant merely established that she was entitled to immunity from the claim, not that the claim was meritless.
Allscripts Healthcare Solutions, Inc. v. Pain Clinic of Northwest Florida, Inc.:
The appellate court affirmed the denial of a motion to compel arbitration in a dispute between a software company (Allscripts) and doctor’s offices. The software company moved to compel arbitration after it was sued in a class action, however it was not a party to the arbitration agreements it was trying to enforce, and the plaintiffs’ claims encompassed actions not covered by the arbitration agreements at issue.
Appellate court held that there was no error in the trial court’s refusal to strike a juror for cause in a lewd and lascivious molestation case, where the juror responded in voir dire that she had been molested as a child, but later said that she was able to be fair and honestly evaluate the evidence and the case, and she spent the past 10 years putting the past behind her.
Fourth DCA:
Henderson v. State of Florida:
The appellate court held that the defendant’s unsolicited offer to show the police where a gun and ammunition was located inside his home broke the chain of any arguable illegality in the search for the firearm.
The trial court erred in determining that the complaint against the tobacco companies could not be amended to add a claim for wrongful death, where the plaintiff died during the case, but the plaintiff did not seek to amend the complaint to allege wrongful death within 2 years, the applicable statute of limitations. The appellate court held that when a plaintiff dies during the pendency of a personal injury action, the claim for wrongful death does not have to be brought as a new and separate cause of action, and that the claim for wrongful death would relate back to the original complaint, such that the statute of limitations would not apply.
The defendant was entitled to an evidentiary hearing on his motion to withdraw a plea to attempted first-degree murder, where the plea form and the plea colloquy with the judge both indicated that the court was required to sentence him to life in prison if he was found guilty at trial, where the actual required penalty would have been 25 years to life.
The appellate court held that the trial court did not err in denying the defendant’s “stand your ground” motion. The victim’s daughter testified that her father told her he had to talk to a guy, he got out of the car, began yelling at someone, and then was shot. A medical expert testified that the bullet wound was consistent with the victim turning his head and ducking as he was shot. The appellate court found that this was competent, substantial evidence supporting the trial court’s factual findings. The appellate court also held that the trial court did not need to address the issue of whether carrying a gun on post office property was “illegal activity” such that would negate the stand your ground defense, and so it would not be addressed on appeal.
The defendant’s sentence was illegal where he was sentenced in one case as an adult and another as a juvenile to a total of 10 years, where the Youthful Offender statute mandates a sentence of incarceration must be no longer than 6 years.
Fifth DCA:
The trial court erred in imposing consecutive sentences for robbery and attempted murder contrary to Sec. 775.087, Fla. Stat.
Two convictions for aggravated assault with a firearm should have been subsumed into the offense of burglary of a dwelling with assault or battery with a firearm.
Appellate court remanded case for sentencing before a different judge where the trial judge relied upon the defendant’s failure to admit his guilt after he was found guilty.
Appellate court held that, pursuant to Safeco v. Fridman, 117 So.3d 16 (Fla. 5th DCA 2013), the trial court lacked jurisdiction to take any action other than to enter judgment in the amount of the uninsured policy limit after Geico confessed to the judgment, and that the plaintiff could not amend his complaint to seek the total amount of damages pursuant to the uninsured motorist law. Judge Sawaya wrote a very good dissent to this opinion that is worth reading.