Florida Weekly Appellate Law Review – July 7-11 Edition
Florida Appellate Law Review: 7-11 Edition. It’s 7-11’s birthday, which means free slurpees. If that’s not enough of a sugar rush, it’s also Krispy Kreme’s birthday, which means you can buy a dozen doughnuts for 77 cents. As for deals on appellate law, our updates are always free, so read on!
Florida Supreme Court:
The Florida Supreme Court ruled that, in medical malpractice actions, the plaintiff is required only to prove that the defendant doctor’s treatment fell below the acceptable standard of care and, more likely than not, adequate care by the defendant would have prevented injury. The defendant doctor’s attorneys should not be able to argue that later-treating doctors would not have done anything differently despite the defendant doctor’s negligence.
The Florida Supreme Court denied the defendant’s petition for stay of execution based upon allegations that the three-drug execution cocktail could cause pain due to his medical conditions. The court found that the defendant had presented no medical evidence that the drugs were likely to cause him suffering. Davis’ execution was carried out yesterday.
First DCA:
First DCA certified conflict with the Fourth DCA on whether or not the jury should have been read an instruction on the statute of repose (a time limit on when lawsuits can be filed, similar to the statute of limitations). This likely means that the Florida Supreme Court will address this issue in the near future.
Second DCA:
Second DCA held that the trial court committed reversible error in not allowing the defendant in a possession of controlled substance case to have a jury instruction on the “prescription defense” read to the jury, where the defendant alleged she was holding hte pills for her husband who had a valid prescription.
Appellate court held that the defendant was entitled to DNA testing of the alleged victim’s clothing in a rape case.
Trial court erred in sentencing hearing by not allowing the defendant to read a written statement aloud, but instead stopping the defendant and entering the written statement into the record.
Appellate court held that Reeves, who is accused of the Tampa theater shooting, was entitled either to a bond for pre-trial release, or the trial court must specify the reasons for denying a discretionary bond.
Third DCA:
Third DCA held that imposing consecutive, not concurrent, sentences under the habitual violent felony offender statute was an illegal sentence.
Fourth DCA:
Donovan v. Florida Peninsula Insurance Co.:
Trial court erred in dismissing the plaintiff’s complaint for failure to comply with the loss-notice provision in the insurance policy where neither the complaint nor the motion to dismiss contained evidence as to that issue.
Appellate court held that a habitual offender sentence may be imposed consecutive to a prison releasee-reoffender sentence.
Appellate court held that, in a theft case, the state failed to prove the value of the necklace allegedly stolen when the only evidence presented of the item’s value was that of the alleged victim, who testified that it was Gucci, real gold, and in fine condition.
The Fourth DCA certified two questions of great public importance to the Florida Supreme Court:
(1) In light of Giles v. California, 554 U.S. 353 (2008) and Crawford v. Washington, 541 U.S. 36 (2004), does section 90.804(2)(f) (which allows the admission of “A statement offered against a party that wrongfully caused, or acquiesced in wrongfully causing, the declarant’s unavailability as a witness, and did so intending that result”), Florida Statutes (2012), violate the Sixth Amendment Confrontation Clause?
(2) Does article I, section 16 of the Florida Constitution afford an accused greater protection than the Sixth Amendment of the United States Constitution with regard to confronting adverse witnesses at trial?
Appellate court found that the plaintiff could not compel a neurological examination of the defendant where the plaintiff had not placed either the defendant’s mental or physical health into issue in the case.
Fifth DCA:
Trial court erred in ruling that the police had no probable cause to arrest the defendant for the crime of traveling to meet a minor for an unlawful sex act, where the only evidence against the defendant was that he arranged to meet two minors for the purposes of “hanging out” and “having fun” online, sent sexually explicit messages, and then traveled to a Starbucks where the minors were supposed to meet him.
Trial court erred in granting a request for a compulsory mental examination of the plaintiff where the order did not specify the manner, conditions, or scope of the examination and thus gave “carte blanche” for any type of testing.