Florida Weekly Appellate Review – July 28 – August 1 Edition

Florida Appellate Law Review: July 28 – August 1 Edition.

Florida Supreme Court: 

No opinions this week.

First DCA:

Harrell v. Florida Agency for Health Care Administration:

Appellate court held that Medicaid could not claim it was entitled to the full amount of its lien under the Medicaid recovery statute, and that the plaintiff was entitled to have the Medicaid lien reduced pursuant to the statutory formula, and consistent with federal law, to the extent that Medicaid’s claimed lien exceeded the amount designated in the settlement for medical expenses.

Edwards v. State of Florida:

Criminal defendant was not automatically entitled to a mistrial where, during jury selection, the prosecutor made a reference to Jeffrey Dahmer. When the prosecutor made the comment the trial court sustained the defendant’s objection, denied the motion for mistrial, and gave the jury a curative instruction. However the defendant did not renew his motion for mistrial prior to the jury being sworn in. Even if the motion for mistrial had been renewed, the appellate court held that the trial court would not have abused its discretion in denying it.

Bergmann v. Florida Department of Transportation:

Appellate court held that the trial court erred in dismissing the plaintiff’s complaint against the Florida Department of Transportation on sovereign immunity grounds, where the complaint alleged a failure of an operational-level function to which sovereign immunity did not apply.

Peralta-Morales v. State of Florida:

Trial court did not err in allowing the presentation of “collateral crime” evidence (which I’m not going to describe here, because it’s awful) because the evidence was relevant to the defendant’s consciousness of guilt.

Second DCA: 

Mitchell v. State of Florida:

To be eligible for a downward departure of a criminal sentence due to the defendant requiring specialized treatment for a physical disability, the defendant only has to prove the following three elements by a preponderance of the evidence: (1.) they have a physical disability; (2.) which requires specialized treatment; (3.) and the defendant is amenable to such treatment. The defendant does not have to prove that the Department of Corrections cannot provide the necessary treatment, although the judge is free to consider whether or not the treatment is available through DOC in deciding whether or not to grant the downward departure.

Sanchez v. State of Florida:

Prior to applying the funds seized from a criminal defendant to court costs and obligations, the trial court must give the defendant notice and an opportunity to respond.

Bush v. State Farm Mutual Automobile Insurance Company:

In this uninsured motorist insurance case, the appellate court held that an insured’s failure to comply with a compulsory medical examination does not result in automatic forfeiture of coverage. Rather, when an insured breaches a compulsory medical examination provision, the prejudice cause by this breach should be pled by the insurer as an affirmative defense that the insurer will have the burden of proving at trial.

Mizner v. State of Florida:

The defendant did not commit an “overt act”, an essential element of the charged attempted crime of attempted sexual battery of a minor, when he met the minor’s mother (actually an undercover officer conducting a sting operation) at a restaurant hours away from the fictional minor’s location. The appellate court also held that convictions for soliciting a parent to consent to sex with a minor and unlawful use of two-way communications violate the prohibition against double-jeopardy, because the elements of unlawful use of two-way communications are included in the elements of the solicitation crime.

Third DCA:

Otero v. Gomez:

Trial court erred in granting the defendant’s motion in liminie to exclude the testimony of plaintiff’s expert in a premises liability action, where the motion in liminie was essentially a motion for summary judgment. Because the trial court entertained the arguments and ultimately granted the motion in liminie even though, as a motion for summary judgment, it was untimely filed and noticed, this violated the plaintiff’s right to due process.

Santoni v. State of Florida:

The trial court has the discretion to decide whether or not it will consider the defendant’s guilty plea to second-degree murder prior to the prosecution obtaining a grand-jury indictment for first-degree murder. The defendant is not entitled to a writ of mandamus to make the trial court hear and consider the guilty plea.

Fourth DCA:

Castanon v. State of Florida:

Trial court did not err in allowing statements of the defendant into evidence regarding threats he made against the victims in a burglary case. The defendant tried to force his way into the victims’ home through the front door, and when the victims managed to shut him out, kicked the door in. One of the victims then threw the defendant outside and pinned him on the ground. While down, the defendant began screaming threats against the victims and that he would get their address and come back and kill them. These statements were relevant to the defendant’s intent at the time of the charged crime of burglary.

Lemaster v. State of Florida & Wilder v. State of Florida:

Both Lemaster and Wilder were convicted of selling oxycodone within 1,000 feet of a church. Although the sales took place within 1,000 feet of a church building, the appellate court reversed these convictions, because the prosecution failed to prove that church services were regularly conducted at the building during the time period the crimes took place, as required by statute.

Topps v. State of Florida:

In an issue of first impression, the appellate court held that statements made by a defendant to a psychotherapist in an emergency room, in the presence of a police officer who was guarding the defendant, were still confidential and could not be introduced at trial. Notably the trial court found that the officer was present not only to maintain custody of the defendant, but to ensure that he was receiving the necessary medical attention, and so the officer was there to further the interest of the patient under 90.503(1)(c).

Dippolito v. State of Florida:

Trial court erred in refusing to allow the defendant to conduct individual questioning of each potential juror, and erred in not striking the entire jury panel after it heard inadmissible “bad acts” evidence from one of the potential jurors. The defendant was convicted of attempted first degree murder after hiring a hit man (who was an undercover officer) to kill her husband in a faked burglary. her interviews with the police were featured on “Cops” and the story ran prominently in the local papers.

Fifth DCA:

Burns v. State of Florida:

Court does not have jurisdiction over foreign bank accounts as well as vehicles located in other counties in a forfeiture proceeding, and thus the county sheriff could not seize the defendants’ property in a forfeiture proceeding.

Peek v. State of Florida:

The trial court erred in determining that that habitual felony offender statute required sentencing the defendant to a time exceeding the statutory maximum.