Effective January 1, 2008, opinions are posted when issued by the Court and may be subject to modification.

 

APPEALS RELEASED IN OCTOBER 2014

County Civil Court: INSURANCE—Personal Injury Protection—A sedan-type police vehicle, used primarily for business purposes, is considered a private passenger motor vehicle under Florida’s PIP statute. Section 627.732(1)(a), Fla. Stat., unambiguously defines a private passenger vehicle as a “sedan,” without reference to the vehicle’s use. Order granting summary judgment reversed and remanded. City of St. Petersburg v. State Farm Mutual Automobile Ins. Co., No. 13000059AP-88B (Fla. 6th Cir. App. Ct. October 10, 2014).

Administrative: CODE ENFORCEMENT – Competent Substantial Evidence—There was not competent substantial evidence before the Board that Appellant was operating a temporary parking lot without a permit. Appellant had a business tax receipt authorizing a permanent parking lot on its property, and accordingly, was not required to have a temporary parking permit to park vehicles on the property. Order vacated. East Shore Int’l Enterprises, LLC, v. City of Clearwater Code Enforcement Board, No. 14-000001AP-88B (Fla. 6th Cir. App. Ct. October 10, 2014).

APPEALS RELEASED IN SEPTEMBER 2014

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSE—Petitioner was afforded sufficient due process in this case, and the order sustaining the driver’s license suspension is supported by competent, substantial evidence and did not constitute a departure from essential requirements of law.  The Petition for Writ of Certiorari is therefore denied.  Stacy Barze Hallman v. State of Florida, Dep’t of Highway Safety and Motor Vehicles, No. 14-CA-0041-ES (Fla. 6th Cir. App. Ct. September 30, 2014). 

County Criminal Court:  CRIMINAL LAW—Jury Trial—Evidence.  After conducting a full and independent review of the record, this Court finds no arguable issue for appeal in this case.  The record in this case supports the denial of Appellant’s motion for judgment of acquittal, and the judgment and sentence are supported by competent, substantial evidence.  Affirmed.  Jeffrey Hensley v. State of Florida, No. 13-CF-3135-WS (Fla. 6th Cir. App. Ct. September 30, 2014).

County Criminal Court:  CRIMINAL PROCEDURE—Jurors and Jury Instructions.  The record demonstrates no reasonable likelihood that the jury instructions challenged on appeal improperly shifted the burden of proof to the Appellant for any element of the offense charged.  We find no error with the trial court’s instructing the jury that results of Appellant’s breath test, administered a reasonable time after Appellant was driving the vehicle, constituted prima facie evidence that Appellant had the same breath-alcohol content at the time of operation of the vehicle.  Affirmed.  Richard James Welch v. State of Florida, No. 13-CF-1413-WS (Fla. 6th Cir. App. Ct. September 30, 2014).

County Civil Court: LANDLORD/TENANT - Appellee did not act in contravention of the Florida Mobile Home Act when it changed the lot rental amount and the method by which it would charge for utility services.  Appellee provided written notice of the increase in lot rental amount 90 days prior to the increase, and the change in services was consistent with the representations in the amended prospectus - Judgment affirmed. Harris v. Fairhaven Mobile Home Park, LLC, No. 13-000067AP-88B (Fla. 6th Cir. App. Ct. September 23, 2014).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – hardship license – Hearing officer’s decision to deny Petitioner’s application for early reinstatement of her driving privilege was supported by competent substantial evidence when Petitioner unlawfully operated a motor vehicle while her license was suspended in December of 2012– Petition denied. Deak v. Dep’t of Highway Safety and Motor Vehicles, No. 14-000029AP-88B (Fla. 6th Cir. App. Ct. September 23, 2014).

County Criminal Court: CRIMINAL LAW ­– Evidence – Criminal defendants are given wide latitude to demonstrate bias or motive for a witness’s testimony. Failure to admit relevant testimony is subject to harmless error analysis. Where even the slightest relevant evidence exists supporting a theory of self-defense, all doubts as to the admissibility of that evidence should be resolved in favor of the defendant. Thus, the trial judge erred by preventing the development of the defendant’s self-defense theory through cross-examination, though only slight evidence was presented in support thereof.  The error was not harmless – reversed and remanded for new trial. Matthew Kenneth Robinson v. State of Florida, No. 14-00014APANO (Fla. 6th Cir. App. Ct. September 11, 2014).

County Criminal Court: CRIMINAL LAW ­– Evidence – Trial court did not abuse its discretion in allowing only the first 45 seconds of a 911 call into evidence under the exception for excited utterances. In applying the abuse of discretion standard, appellate courts ask whether reasonable people could differ as to the propriety of the action taken by the trial court. Here, the trial court reasonably exercised discretion contemplated by § 90.403 in admitting only a portion of the 911 tape – Order affirmed. State of Florida v. Ashley E. Tyson, No. 14-00024APANO (Fla. 6th Cir. App. Ct. Sep. 8, 2014).

APPEALS RELEASED IN AUGUST 2014

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  ATTORNEY’S FEES—Petitioner failed to comply with the safe harbor provision in § 57.105(4), Fla. Stat., and the Motion for Attorney’s Fees is therefore denied.  The Petition for Writ of Certiorari is dismissed as moot.  Holly Forkel v. State of Florida, Dep’t of Highway Safety and Motor Vehicles, No. 12-CA-4847-ES (Fla. 6th Cir. App. Ct. August 18, 2014). 

APPEALS RELEASED IN JULY 2014

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Suspension—Section 322.2615 (2), Fla. Stat. (2013). Probable cause affidavit was properly completed when both the arresting and attesting officer signed the affidavit. Because law enforcement officers are authorized to administer oaths when engaged in the performance of official duties, the signature of a notary was not necessary. Petition denied. Swindle v. Dept. of Highway Safety and Motor Vehicles, No. 14-000015AP-88B (Fla. 6th Cir. App. Ct. July 25, 2014).

Administrative: CODE ENFORCEMENT – Due Process—Appellants were afforded notice and an opportunity to be heard prior to the Board’s fine reduction hearing. Appellants were aware of the fine reduction hearing, were given an opportunity to be heard, and exercised this option via their petition for a fine reduction. Appellants had no statutory or procedural right to present oral argument at the fine reduction hearing. Order affirmed. Ramsey v. City of Dunedin Code Enforcement Board, No. 13-000051AP-88B (Fla. 6th Cir. App. Ct. July 25, 2014).

Petition for Writ of Certiorari to Review Quasi-Judicial Action of Agencies, Boards and Commissions of Local Government: ADMINISTRATIVE – The City’s trespass warning appeal process provided Petitioner procedural due process. Petitioner had notice of the reason she was issued the trespass warning, and the City’s post-deprivation process provided Petitioner a meaningful opportunity to be heard. There was competent substantial evidence to support the Hearing Master’s finding that Petitioner was properly issued a trespass warning pursuant to City of St. Petersburg City Code Section 20-30. Petition denied. Ledger v. City of St. Petersburg, No. 13-000007AP-88B(Fla. 6th Cir. App. Ct. July 25, 2014).

Administrative: CODE ENFORCEMENT – Due Process—Appellant was afforded notice and an opportunity to be heard prior to the Board’s issuance of its order imposing a fine when the Board sent Appellant notice via certified mail, return receipt requested, and posted a notice on Appellant’s property and in the City’s municipal offices. Order affirmed. Reinhardt v. City of Dunedin Code Enforcement Board, No. 14-000009AP-88B (Fla. 6th Cir. App. Ct. July 24, 2014).

Administrative: CODE ENFORCEMENT – Due Process—City of Largo failed to meet the requirements of section 162.12, Fla. Stat. (2013), and Largo Code of Ordinances 9-75, requiring certified mail or hand delivery of the initial notice of repeat code violation.  Petitioner's due process rights were violated because notification was insufficient, as notice was only posted on an unoccupied unit and sent by regular U.S. Mail.  The City otherwise followed the essential requirements of law and competent substantial evidence supported the fine of $300.00 per day.  Orders reversed and remanded for further proceedings.  Richard Martin Management Co., Inc. v. City of Largo, Code Enforcement Board, No. 13-000080AP-88A(Fla. 6th Cir. App. Ct. July 18, 2014).

APPEALS RELEASED IN JUNE 2014

County Criminal Court:  CRIMINAL PROCEDURE—Dismissal.  The trial court properly granted Appellee’s motion to dismiss, finding the term “entering” in § 775.13(2), Fla. Stat., not to be ambiguous or vague, and, applying the plain meaning of the term, that Appellee could not be convicted of violating the statute by failing to register as a convicted felon in Pasco County, having never physically entered the county between the time of conviction and sentencing in the previous case, and the time charges were filed in this case.  Affirmed.  State of Florida v. Tina Hess, No. 13-CF-4590-ES (Fla. 6th Cir. App. Ct. June 20, 2014).

County Criminal CourtCRIMINAL LAW—Search and Seizure—Stop.  The trial court properly granted the motion to suppress evidence, finding the evidence to have been obtained as the result of a non-consensual investigatory stop that was not supported by a reasonable, articulable suspicion that Appellee was the subject of an arrest warrant.  Affirmed.  State of Florida v. Larry Darrell Smith, No. 13-CF-3004-ES (Fla. 6th Cir. App. Ct. June 10, 2014).

APPEALS RELEASED IN MAY 2014

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Suspension—Validity of traffic stop.  Content of video of traffic stop does not contradict statements in police officer's Arrest Report.  Officer need only have a founded suspicion of criminal activity to effectuate stop.  Hearing officer's decision that deputy had objectively reasonable basis for traffic stop for careless driving is supported by competent, substantial evidence.  Petition denied.  Vogel v. Dept. of Highway Safety and Motor Vehicles, No. 13-000052AP-88 (Fla. 6th Cir. App. Ct. May 27, 2014).

Petition for Writ of Certiorari to Review Quasi-Judicial Action of Agencies, Boards and Commissions of Local Government: EMPLOYMENT—Civil Service Board.  Petitioner's due process rights were not violated as his grievances with the City had been addressed prior to his termination from employment.  On remand, the new evidentiary hearing was properly conducted in 2013 as directed by the Second District Court of Appeal.  Further, dicta statements in a prior Circuit Court appellate opinion are not binding in this matter.  Petition for writ of certiorari denied.  Meaton v. City of St. Petersburg, No. 13-000020AP-88A (Fla. 6th Cir. App. Ct. May 22, 2014).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES—Due Process.  Petitioner was not afforded adequate due process when Respondent failed to provide Petitioner with the video-recording of Petitioner’s arrest for driving under the influence, when Petitioner requested the video-recording prior to the hearing, its existence was affirmatively denied prior to and at the hearing, and Petitioner then received a copy of the video-recording after the order sustaining the suspension was entered.  Petition granted.  Carl S. Christian v. State of Florida, Dep’t of Highway Safety and Motor Vehicles, No. 13-CA-5160-ES (Fla. 6th Cir. App. Ct. May 12, 2014).  

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Early Reinstatement—Suncoast Safety Council observed the essential requirements of law when it denied Petitioner's request for restricted reinstatement of revoked driving privileges pursuant to Section 322.271(5), Fla. Stat. (2013); Fla. Admin. Code Rule 15A-10.031.  Statute requires no drug or alcohol consumption for five years prior to application for reinstatement.  Medical records from Petitioner's doctor indicated that Petitioner consumed medication that was not prescribed for Petitioner during the five-year period prior to application.  Petition denied.  Zinaich v. Fla. Dept. of Highway Safety and Motor Vehicles, No. 13-000056AP-88A (Fla. 6th Cir. App. Ct. May 9, 2014).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Early Reinstatement— Department observed the essential requirements of law when it denied Petitioner's request for restricted reinstatement of revoked driving privileges pursuant to Section 322.271(2)(c), Fla. Stat. (2013); Fla. Admin. Code Rule 15A-1.019.  During twelve-month period prior to reinstatement, applicant must not consume drugs or alcohol.  Petitioner admitted consuming alcohol prior to hearing on application.  Petition denied.  Zareas v. Fla. Dept. of Highway Safety and Motor Vehicles, No. 14-00028AP-88A (Fla. 6th Cir. App. Ct. May 9, 2014).

County Civil Court: CIVIL PROCEDURE – Summary Judgment—Summary judgment of dismissal entered holding Petitioner's Demand Letter for PIP reimbursement was insufficient to meet condition precedent to filing action under Section 627.736(10), Fla. Stat. (2008).  Trial court properly found that "substantial compliance," not "strict compliance," with statute was required.  However, on de novo review the Appellate Court finds that the Demand Letter, combined with the attached billing statement in compliance with Section 627.736(5)(d), substantially complied with Section 627.736(10). Reversed and remanded for further proceedings. Bayfront Medical Center, Inc. v. USAA Casualty Insurance Co., No. 13-000034AP-88A (Fla. 6th Cir. App. Ct. May 7, 2014).

County Civil Court: NEGLIGENCE—Sovereign Immunity. A governmental entity that operates a golfing facility assumes the common law duty to operate the facility safely, just as a private individual is obligated under like circumstances.  The City’s maintenance and operation of the golfing facility is an operational level function which is not protected by sovereign immunity.  Judgment affirmed and motion for attorney’s fees is denied. City of St. Petersburgv. Gordon, No. 13000075AP-88B (Fla. 6th Cir. App. Ct. May 5, 2014).

County Civil Court: CONTRACTS – Summary Judgment—Insurance’s policy provision excluding coverage for theft from an unprotected car lot was enforceable.  The policy exclusion was clear and unambiguous, did not completely eviscerate coverage, and did not contradict other provisions of the policy.  Judgment affirmed.  Shutt Enterprises, Inc. v. Century Surety Company, No. 13000043AP-88B (Fla. 6th Cir. App. Ct. May 5, 2014).

Administrative: CODE ENFORCEMENT – Due Process—Appellant was afforded notice and an opportunity to be heard prior to the Board’s issuance of its order imposing a fine when the Board sent Appellant notice via certified mail, return receipt requested, first class mail, and posted a notice on Appellant’s property and in the City’s municipal offices. Order affirmed. Reinhardt v. City of Dunedin Code Enforcement Board, No. 13-000073AP-88B (Fla. 6th Cir. App. Ct. May 5, 2014).

Administrative: CODE ENFORCEMENT – Code interpretation – Sections of the City’s Code must be read in context with other pertinent portions.  When a section of the City’s Code is read in context, it gives meaning to when a violation “exists.” There was competent substantial evidence to support the magistrate’s finding that a violation existed, regardless that the Petitioner remedied it prior to the enforcement hearing. Order affirmed. Bixler v. City of St. Pete Beach, No. 13-000057AP-88B (Fla. 6th Cir. App. Ct. May 5, 2014).


ADMINISTRATIVE

Petition for Writ of Certiorari to Review Quasi-Judicial Action of Agencies, Boards and Commissions of Local Government: ADMINISTRATIVE – The City’s trespass warning appeal process provided Petitioner procedural due process. Petitioner had notice of the reason she was issued the trespass warning, and the City’s post-deprivation process provided Petitioner a meaningful opportunity to be heard. There was competent substantial evidence to support the Hearing Master’s finding that Petitioner was properly issued a trespass warning pursuant to City of St. Petersburg City Code Section 20-30. Petition denied. Ledger v. City of St. Petersburg, No. 13-000007AP-88B(Fla. 6th Cir. App. Ct. July 25, 2014).

Petition for Writ of Mandamus: ADMINISTRATIVE – petition for writ of mandamus is proper appellate means to seek review of inmate disciplinary action – claims enumerated in petition and supporting appendix were not refuted by respondent – respondent failed to investigate and to produce relevant documentation without providing any reason for denying the request  - Petition granted.  Perrot v. Rice, No. 02-5002CI-88B (Fla. 6th Cir. App. Ct. July 23, 2004). 

Although the findings of fact entered by the Civil Service Board (as drafted by counsel for the City of St. Petersburg) may appear to “mandate” a conclusion of “just cause”, the record contains competent substantial evidence why the Board concluded otherwise.  However, in such appeal hearings, it may be prudent for the Board to revise or modify findings of fact contained in a prepared Order to more accurately reflect the conclusions of law reached following the hearing. City of St. Petersburg v. Pope, No. 00-1698-CI-88A (Fla. 6th Cir. Ct. August 14, 2000).

The City Council concluded, based on competent substantial evidence, that a viable stipulation agreement to rehabilitate or repair the condemned structure was not feasible, even after discussing various alternatives to demolition with the property owner.  Therefore, the City Council did not depart from the essential requirements of law when it denied the Petitioner’s Demolition Appeal. J.C. Sanders, et al. v. City Council of the City of St. Petersburg, No. 99-6600-CI-88A (Fla. 6th Cir. Ct. June 29, 2000)

When a party is entitled to seek review in circuit court from an administrative action, the circuit court must determine whether procedural due process was accorded, whether the essential requirements of law were met, and whether the decision was supported by substantial competent evidence. In this case all were met. Melchert v. City of St.Petersburg, No. 95-5022 CI (Fla. 6th Cir. Ct. March 4, 1996).

Florida Statute 767.13(2), and 767.12, require a pre-determination administrative hearing before the administrative body may finally determine if a dog has attacked and severely injured a person and as a consequence the dog should be destroyed. Sabates v. Pinellas County Animal Control, No. 96-1379 CI (Fla. 6th Cir. Ct. Nov. 18, 1996).

Code Enforcement

Administrative: CODE ENFORCEMENT – Competent Substantial Evidence—There was not competent substantial evidence before the Board that Appellant was operating a temporary parking lot without a permit. Appellant had a business tax receipt authorizing a permanent parking lot on its property, and accordingly, was not required to have a temporary parking permit to park vehicles on the property. Order vacated. East Shore Int’l Enterprises, LLC, v. City of Clearwater Code Enforcement Board, No. 14-000001AP-88B (Fla. 6th Cir. App. Ct. October 10, 2014).

Administrative: CODE ENFORCEMENT – Due Process—Appellants were afforded notice and an opportunity to be heard prior to the Board’s fine reduction hearing. Appellants were aware of the fine reduction hearing, were given an opportunity to be heard, and exercised this option via their petition for a fine reduction. Appellants had no statutory or procedural right to present oral argument at the fine reduction hearing. Order affirmed. Ramsey v. City of Dunedin Code Enforcement Board, No. 13-000051AP-88B (Fla. 6th Cir. App. Ct. July 25, 2014).

Administrative: CODE ENFORCEMENT – Due Process—Appellant was afforded notice and an opportunity to be heard prior to the Board’s issuance of its order imposing a fine when the Board sent Appellant notice via certified mail, return receipt requested, and posted a notice on Appellant’s property and in the City’s municipal offices. Order affirmed. Reinhardt v. City of Dunedin Code Enforcement Board, No. 14-000009AP-88B (Fla. 6th Cir. App. Ct. July 24, 2014).

Administrative: CODE ENFORCEMENT – Due Process—City of Largo failed to meet the requirements of section 162.12, Fla. Stat. (2013), and Largo Code of Ordinances 9-75, requiring certified mail or hand delivery of the initial notice of repeat code violation.  Petitioner's due process rights were violated because notification was insufficient, as notice was only posted on an unoccupied unit and sent by regular U.S. Mail.  The City otherwise followed the essential requirements of law and competent substantial evidence supported the fine of $300.00 per day.  Orders reversed and remanded for further proceedings.  Richard Martin Management Co., Inc. v. City of Largo, Code Enforcement Board, No. 13-000080AP-88A(Fla. 6th Cir. App. Ct. July 18, 2014).

Administrative: CODE ENFORCEMENT – Due Process—Appellant was afforded notice and an opportunity to be heard prior to the Board’s issuance of its order imposing a fine when the Board sent Appellant notice via certified mail, return receipt requested, first class mail, and posted a notice on Appellant’s property and in the City’s municipal offices. Order affirmed. Reinhardt v. City of Dunedin Code Enforcement Board, No. 13-000073AP-88B (Fla. 6th Cir. App. Ct. May 5, 2014).

Administrative: CODE ENFORCEMENT – Code interpretation – Sections of the City’s Code must be read in context with other pertinent portions.  When a section of the City’s Code is read in context, it gives meaning to when a violation “exists.” There was competent substantial evidence to support the magistrate’s finding that a violation existed, regardless that the Petitioner remedied it prior to the enforcement hearing. Order affirmed. Bixler v. City of St. Pete Beach, No. 13-000057AP-88B (Fla. 6th Cir. App. Ct. May 5, 2014).

Administrative: CODE ENFORCEMENT – St. Petersburg City Ordinance 21-40, which prohibits presence in city parks after hours of operation, does not conflict with Section 810.09, Florida Statutes, concerning criminal trespass on certain property; these provisions address distinct subjects, conduct, and sanctions.  St. Petersburg City Ordinance 21-40 is therefore constitutional – Judgment affirmed.  Thompson v. State, No. 13-00022APANO (Fla. 6th Cir. App. Ct. November 25, 2013).

Administrative: CODE ENFORCEMENT – Competent Substantial Evidence — Code Investigator’s sworn fact sheet constituted competent substantial evidence of code violations – Order affirmed.  Nelson v. City of St. Petersburg, Code Enforcement Board, No. 12-000063AP-88B (Fla. 6th Cir. App. Ct. September 20, 2013). 

Administrative: CODE ENFORCEMENT—Competent substantial evidence—Board’s finding that Appellant was operating a towing business out of his home without obtaining a business tax receipt in violation of the St. Petersburg City Code was supported by competent substantial evidence. The record showed that the appellant was using a phone tower located at his residence to receive calls for his towing business. Order affirmed.  Spaulding v. City of St. Petersburg, Community Development Code Enforcement Bd., No. 12-000049AP-88B (Fla. 6th Cir. App. Ct. June 19, 2013).

Administrative: CODE ENFORCEMENT—Competent substantial evidence—Construction Licensing Board’s finding that Appellant was advertising paver sealing services without a license was supported by competent substantial evidence.  The record showed that the substance Appellant was using as a sealer fell under the definition of “paint” and required a competency license. Order affirmed.  D’Amore v. Pinellas County Construction Licensing Board, No. 12-000034AP-88B (Fla. 6th Cir. App. Ct. June 19, 2013).

Administrative: CODE ENFORCEMENT—Competent substantial evidence—Board’s finding that tenants living in a building together did not function as a “single housekeeping unit” pursuant to Article 8 of the Clearwater Code was supported by competent substantial evidence. The record showed that the individual rooms were rented out separately, that the tenants kept locks on the outside of their doors, and that several of the tenants had their own refrigerators in their rooms. Order affirmed.  Jones v. City of Clearwater, No. 12-000053AP-88B (Fla. 6th Cir. App. Ct. April 30, 2013).

Administrative: CODE ENFORCEMENT – Jurisdiction – Competent Substantial Evidence—Appellate panel has jurisdiction; appeal was timely as it sought appellate review of the Board’s order denying reduction in fine and the Appellant filed its appeal within 30 days of that order – Appellant did not seek review of the underlying administrative order.  Board’s decision to deny Appellant’s Request for Reconsideration of Fine was supported by competent substantial evidence.  Affirmed. MidFirst Bank v. City of Dunedin, Code Enforcement Board, No. 12-000032AP-88B (Fla. 6th Cir. App. Ct. February 13, 2013). 

Administrative: CODE ENFORCEMENT – Due Process – City’s interpretation of its code’s language was reasonable and gave proper notice to persons responsible for compliance.  No denial of procedural due process when Appellant had notice of violating specific sections of the Largo Code of Ordinances, and he was given a meaningful opportunity to be heard at a Code Enforcement Board hearing. Appeal denied. Buffington v. City of Largo Code Enforcement Bd., No. 12-000011AP-88B (Fla. 6th Cir. App. Ct. October 31, 2012).

Administrative: CODE ENFORCEMENT – Due Process – Evidence – No violation of due process because Pinellas County Code Enforcement Board Special Magistrate did not demonstrate bias toward Appellant/Defendant.  In review of non-final order denying motion to suppress, burden is on Appellant/Defendant to demonstrate error.  Final order affirmed.  Colucci v. Pinellas County, FL, No. 10-000041AP-88A(Fla. 6th Cir. App. Ct. November 9, 2011).

Administrative: CODE ENFORCEMENT – Substantial, competent evidence – Although the evidence to support the injunction could not be considered insufficient, the injunction was overbroad.  Reversed.  Mark Huffsmith, et al. v. Pasco County, No. 2010-AP-000016-WS, (Fla. 6th Cir.App.Ct. June 8, 2011).

Administrative: CODE ENFORCEMENT — Substantial, competent evidence — There was no violation of due process as Belleview Biltmore Owner notified of hearing to determine if there had been compliance with Town of Belleair Code as directed in November 8, 2007, amended order finding violation.  Town of Belleair Code Enforcement Board followed the essential requirement of law and competent, substantial evidence was presented to support November 6, 2009, Order Imposing Penalty/Lien.  The November 6, 2009, order was not vague and fine imposed does not violate the Eight Amendment to the United States Constitution.  Order affirmed.  Belleview Biltmore Owner, LLC, a foreign Limited Liability Company as Successor in Title to Belleair Biltmore Resort, Ltd. (properly known as Belleview Biltmore Resort, Ltd.) v. Town of Belleair, Belleair Code Enforcement Board, No. 09-000053AP-88A (Fla. 6th Cir. App. Ct. November 22, 2010).

Administrative: CODE ENFORCEMENT—Substantial, competent evidence—There was no violation of due process and Special Magistrate for the County Code Enforcement Board followed the essential requirement of law.  Special Magistrate's conclusion that there was a repeat violation of County Code of Ordinances s. 58-304 for the accumulation of "garbage, refuse, rubbish, junk, debris, or similar noxious material of any kind," findings of fact, and the judgment are supported by competent, substantial evidence.  Judgment affirmed.  Brown v. Pinellas County, No. 09-000041AP-88A(Fla. 6th Cir. App. Ct. October 22, 2010).

Administrative: CODE ENFORCEMENT—Due Process—Notice of code violation hearing not sent in compliance with sections 162.06(2) and 162.12(1)(a), Florida Statutes (2009), after certified mail returned unclaimed.  Statute requires notice may be provided by posting and by first-class mail directed to the addresses furnished to local government with proof of mailing or affidavit of mailing.  Appellants denied due process because they did not have notice of code violation hearing.  Order of Code Enforcement Board reversed and City directed to release liens.  Blackburn and Danish v. Code Enforcement Board of the City of St. Petersburg,No. 10-000007AP-88A (Fla. 6th Cir. App. Ct. October 12, 2010).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ADMINISTRATIVE – Code Enforcement – construction license – Code enforcement board is not required to follow strictly all rules of evidence in conducting its administrative hearings – Competent substantial evidence including documentary evidence and testimony of investigator supported  hearing officer’s findings and conclusions –
Hearing officer did not depart from the essential requirements of law by imposing the fine on Petitioner as an individual.  Petition denied.  Helms v. Pinellas County Construction Licensing Board, No. 09-000042AP-88B (Fla. 6th Cir. App. Ct. August 18, 2010).

Petition for Writ of Certiorari to Review Quasi-Judicial Action:  Agencies, Boards, and Commissions of Local Government:  ADMINISTRATIVE – Code Enforcement.  Separate offenses precluded application of double jeopardy rule.  Failure to give notice of violation before issuing a notice of hearing under Florida Statutes §162.06 & §162.12, was harmless error.  Essential requirements of law met and procedural due process provided.  Petition denied.  Charles D. Deer and Kathleen L. Deer v. Pinellas County, No. 08-000029AP-88A ( Fla. 6th Cir.App.Ct. April 29, 2009).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ADMINISTRATIVE – Code Enforcement – jurisdiction – Court did not have jurisdiction to review a final administrative decision when the petition was filed more than 30 days after the administrative decision.  Petition denied.  Brown v. Pinellas County, Appeal No. 08-000022AP-88B (Fla. 6th Cir.App.Ct. Aug 27, 2008).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ADMINISTRATIVE – Code Enforcement – due process – competent substantial evidence - petitioner was not denied due process by Board’s decision not to continue hearing – record shows that petitioner was provided a full opportunity to present his case to the Board – Board’s decision to fine petitioner for having a grass parking lot not supported by competent substantial evidence – the undisputed evidence presented to the Board showed that the grass lot had been used for parking for the past 30 years – the addition of gravel over the grass did not alter the grandfathered use of the lot for parking  - Petition granted.  Bleasdale v. City of Clearwater , Appeal No. 07-0040AP-88A ( Fla. 6th Cir. App. Ct. Feb. 28, 2008).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ADMINISTRATIVE – Code Enforcement – Plain and ordinary meaning of City’s Code applies to code enforcement proceeding – the Egyptian hieroglyphics on the exterior of the restaurant were art as defined by the City’s Code – no record evidence to support City’s finding that the hieroglyphics were a “sign” intended to information to the public – Petition granted.  Dauti v. City of Clearwater , Appeal No. 06-0088AP-88B ( Fla. 6th Cir. App. Ct. Sept. 11, 2007).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ADMINISTRATIVE – Code Enforcement – jurisdiction – Court does not have jurisdiction to review order setting original amount of fine for code violations since order was not appealed within thirty days – there is no statute, rule, or code provision which tolled the time for rendition of the original order – Petition denied.  Spradlin  v. Town of North Redington Beach, Appeal No. 06-0018AP-88A (Fla. 6th Cir. App. Ct. Nov. 16, 2006).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ADMINISTRATIVE – Code Enforcement – due process - jurisdiction – Court does not have jurisdiction to review previous orders imposing fines that were not timely appealed – Court does have jurisdiction to review Order Imposing Lien, entered October 28, 2005, as petition was filed within thirty days seeking review of this Order – Order must be quashed when City failed to provide Petitioner with notice and the opportunity to challenge the imposition of the lien – procedural due process is required even when property owner has previously appeared before the administrative agency to submit testimony and evidence on the same code violations - Petition granted. CSX Transportation, Inc.  v. City of St. Petersburg, Appeal No. 05-0096AP-88A (Fla. 6th Cir. App. Ct. Oct. 4, 2006).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ADMINISTRATIVE – Code Enforcement – City departed from the essential requirements of law in failing to consider affidavits completed by Code Enforcement Officer as required by the City’s Code – Affidavit that was completed 3 days before fine hearing found that property was code compliant – City must comply with its Code in providing notice to property owner of cited code violations – Petition granted. Jackson v. City of Oldsmar, Appeal No. 05-0082AP-88A (Fla. 6th Cir. App. Ct. Oct. 4, 2006).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ADMINISTRATIVE – Code Enforcement – Board had to determine whether there had been a change in occupancy and, if so, whether the Building was unsafe due to cited conditions – abundance of evidence showed there had been a change in occupancy from original use of building in 1963 to current use – competent substantial evidence supported Board’s finding that property was not code-compliant as determined by the City’s Building Official – Petitioner had already fixed 3 of the 5 cited problems and was working to resolved the remaining issues - Petition denied. Safety Harbor Complex, L.L.C.  v. City of Safety Harbor, Appeal No. 05-0100AP-88A (Fla. 6th Cir. App. Ct. Oct. 4, 2006).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ADMINISTRATIVE – Code enforcement-no evidence that the petitioners fall within the statutory definition of a repeat violator;  essential requirements of law were not observed by the board imposing daily fines; the board is a creature of statute and once the city opted to have a code enforcement board, it was prohibited from enforcing its ordinances by any other manner except that described in chapter 162. Petition granted. Mancuso v. Code Enforcement Board, City of New Port Richey, Florida, No. 512005AP1WS  (Fla. 6th Cir. App. Ct. June 1, 2006).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ADMINISTRATIVE – Code Enforecment - Town’s interpretation of its code to limit 5 domestic animals per residential property is not contrary to the law – Town erred in including Petitioners’ rooster, a permitted domestic fowl, as one of the Petitioners’ domestic animals – Petition granted, in part.  Bollea  v. Town of Belleair, No. 05-0008AP-88B (Fla. 6th Cir. App. Ct. July 8, 2005). 

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ADMINISTRATIVE – Code Enforcement - petitioner's admission cured any problems there may have been in denying the continuance- there was competent substantial evidence to support the boards order to cure the violation within 45 days-petitioner admitted violation; violation existed for 3 years; it was hurricane season; the utilities are already hooked up; job is done except for having a licensed mobile home installer pull the permit; county building inspection staff recommended 30 days; the permit and inspection is simple to obtain; usual permitting process is complete within 30 days -Petition denied. Gaeto Family Trust v. Pasco County, Florida, 51-2004-AP-000013WS (Fla. 6th Cir. App. Ct. April 11, 2005).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ADMINISTRATIVE – Code Enforcement - appellant did not seek review of final appellate order- City provided a Massey hearing - nothing in Massey or any other case allows appellant the right to re-try or re-litigate original issues that were already litigated and upon which a final ruling was entered- the collateral estoppel doctrine forbids a party from re-litigating identical issues that were previously litigated-nothing in the record indicates that appellant made any attempt to correct the violations- Petition denied. Howarth v. Code Enforcement Board, City of New Port Richey, 51-2003-AP-000019WS (Fla. 6th Cir. App. Ct. April 11, 2005).

Public Nuisance

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ADMINISTRATIVE – Public Nuisance – due process – City denied homeowner due process by failing to give homeowner an opportunity to abate nuisance before public nuisance action was brought – Petition granted. Katrina Washington v. City of St. Petersburg, No. 04-0031AP-88A (Fla. 6th Cir. App. Ct. Jan. 26, 2005).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ADMINISTRATIVE – Public Nuisance – Petitioner is unable to demonstrate that Florida Statutes, § 893.138, which provides authority to local administrative boards to abate drug-related and other criminal behavior, is unconstitutional – Petitioner was given adequate notice and a reasonable amount of time to abate the nuisance prior to the City filing its abatement complaint – undisputed testimony showed that property was a known “drug hole” – Petitioner should have taken action to eliminate the drug activity – Petition denied.  Fields v. City of St. Petersburg , No. 03-5078AP-88A (Fla. 6th Cir. App. Ct. Sept. 24, 2004). 


ANNEXATION

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ANNEXATION –The power to annex property must be exercised in strict accord with §171.044, Fla. Stat. Because the Town did not provide the County Commissioners with a map clearly showing the area to be annexed ten days prior to the hearing, it did not exercise its power to annex in strict accord with the statute.  Accordingly, the Town did not observe the essential requirements of law when it approved the annexation ordinances - Petition granted. Lealman Special Fire Control District v. Town of Kenneth City, No. 10-000046AP-88B (Fla. 6th Cir. App. Ct. Aug. 14, 2013).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ANNEXATION – § 171.0413, Fla. Stat. (2010), permits municipality to annex unincorporated territory that is reasonably compact and does not create enclaves.  The annexation did not create enclaves, pockets, or "finger areas in serpentine patterns" as argued by Petitioners.  Failure to annex right-of-way does not prevent annexation of territory.  Essential requirements of law were observed and competent, substantial evidence supports conclusion that annexation meets all requirements of § 171.0413.  Petition denied.  P-Squared Fast Lube & More, L.L.C. v. City of Largo, No. 11-000025AP-88A (Fla. 6th Cir. App. Ct. April 9, 2012).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ANNEXATION – City was required to comply strictly with the procedures established by the Municipal Annexation or Contraction Act (the Act), Florida Statutes Chapter 171. Annexed area was sufficiently “compact” under the Act despite the area’s separation into two parts by Madonna Boulevard.  Annexed area was contiguous to the City despite separation by the Intracoastal Waterway. Petitioners did not demonstrate that the submerged lands belonging to the State of Florida were a “parcel of land” requiring owner consent before splitting, and State waived any such objections. City did not violate the notice requirements and afforded the public the requisite opportunity to be heard consistent with procedural due process. City’s failure to comply with its own Comprehensive Plan in its untimely notice to the Pinellas County Property Appraiser’s Office was not a basis for overturning the ordinance under Chapter 171. Petitioners’ argument that the City failed to obtain consent of the property owners prior to final adoption of the annexation ordinance was without merit. City’s annexation report met the requirements of § 171.042(1) Florida Statutes. Petitioners failed to sustain their burden of proving that they were denied procedural due process, that the City failed to observe the essential requirements of law, or that the annexation was not supported by competent, substantial evidence -- Petitions denied.  Tierra Verde Community Association, Inc. v. City of St. Petersburg, Florida, No. 08-000050-AP-88B (Fla. 6th Cir. App. Ct. April 7, 2011).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ANNEXATION – unincorporated territory – contiguous boundaries - Florida Statutes, section 171.0413, requires three criteria be met prior to annexation:  area to be annexed must not contain any electors; more than 50% of total acreage must be owned by persons who have consented to the annexation, and; more than 50% of the total number of parcels must be owned by persons who have consented to annexation – competent substantial evidence in record to show criteria had been met – property owner can enter into contract to have property annexed - nothing in the record to show that Annexation Agreements were invalid or illusory – a valid contract can contain a clause which provides for a municipality’s unilateral termination of the contractual relationship – it was within the City Commission’s discretion to treat the Annexation Agreements as valid contracts – City Commission met its statutory burden to demonstrate that property to be annexed was contiguous to the municipalities’ boundaries – Petition denied. Eva-Tone, Inc. v. City of Largo, Appeal No. 06-0004AP-88B (Fla. 6th Cir. App. Ct. Oct. 5, 2006).


APPELLATE PROCEDURE

Appealability/Improper Relief

County Civil Court: APPELLATE PROCEDURE – Record – Since an appellate court cannot consider facts outside the record, the judgment must be affirmed.  Cheryl Wise v. Citibank, N.A., No. 12-AP-000011-WS (Fla. 6th Cir. App. Ct. March 19, 2013).

Petition for Writ of Mandamus: APPELLATE PROCEDURE – Appealability/Improper Relief— Regardless that the Petitioner may try to remedy a future similar problem with a method that the Development Director rejected, the Petition for Writ of Mandamus to compel the Director to issue an after-the-fact permit is moot as the Petitioner remedied the problem and the Director issued the permit.  Petition dismissed.  Solomon v. State, No. 12-000036AP-88B (Fla. 6th Cir. App. Ct. February 8, 2013)

County Criminal Court: APPELLATE PROCEDURE — Appealability Jury Trial/Improper Relief — Under the law of the case doctrine, the same legal question cannot be re-determined on a subsequent appeal in the same case when the facts remain the same.  Conviction and sentence affirmed.  Richard Jason Kirkendall v. State of Florida, No. CRC10-008274-CFAES (Fla. 6th Cir. App. Ct. November 28, 2011).

County Civil Court:  APPELLATE PROCEDURE - The trial court did not abuse its discretion in denying relief from 20-year-old judgment where Appellant failed to seek relief from final judgment under Rule 1.540(b), Fla. R. Civ. P.  Motion to dismiss granted; judgment affirmed.  Davis v. Bowen, No. 10-000050AP-88B (Fla. 6th Cir. App. Ct. August 23, 2011).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: APPELLATE PROCEDURE — Appealability/Improper Relief — The trial court did not abuse its discretion in admitting statements made by Appellant to law enforcement.  Trial court’s order denying motion in limine affirmed.  Jeffrey L. Simpson, et al. v. City of Port Richey, No. 07-CA-000624-WS (Fla. 6th Cir. App. Ct. July 27, 2011).

County Civil Court:  APPELLATE PROCEDURE – Appealability/Improper Relief – The trial court made no error by dismissing claim pursuant to Florida Small Claims Rule 7.135, which requires the trial court to summarily dispose of an action if there is no triable issue, at pretrial conference or at any subsequent hearing.  Order affirmed.  Eady v. Affordable Realty and Property Management, No. 10-000022AP-88B (Fla. 6th Cir. App. Ct. October 27, 2010).

Petition for Writ of Mandamus:  APPELLATE PROCEDURE – Appealability/Improper Relief – Petition was improper remedy for incarcerated Petitioner to obtain public records where records custodian informed Petitioner that documents responsive to request were found and would be provided upon payment of costs.  The Public Records Act, Florida Statutes § 119.07(1)(a), does not afford indigent prisoners free copies of requested documents or the transportation of an inmate to an area to view public records otherwise available to him.  Petition denied.  Wright v. Hazatone, No. 10-000024AP-88B (Fla. 6th Cir. App. Ct. October 27, 2010).

Petitions for Writs of Mandamus, Prohibition, Quo Warranto, or Habeas Corpus:  APPELLATE PROCEDURE - Appealability/Improper Relief - Petition for Writ of Prohibition was an inappropriate collateral challenge to Small Claims Court’s exercise of jurisdiction where direct appeal based on Small Claims Court’s lack of jurisdiction was currently pending.  Petitioner had not sought less extraordinary relief to prevent Small Claims Court from entertaining fee petition.  Petition denied.  Daniel LaSalla v. Pools By George of Pinellas County, Inc., No. 10-000012AP-88B (Fla. 6th Cir. App. Ct. March 12, 2010).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: APPELLATE PROCEDURE – improper relief – where Sheriff’s Civil Service Board elected to contract with Department of Administrative Hearings to conduct disciplinary hearings, provisions of Administrative Procedures Act governed judicial review of administrative decision – APA requires review by direct appeal to district court rather than petition for certiorari in circuit court. Petition dismissed for lack of jurisdiction. Bradshaw v. Pinellas County Sheriff’s Civil Service Board, No. 08-000030-88B (Fla. 6th Cir. App. Ct. February 24, 2010)

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: APPELLATE PROCEDURE – improper relief – where party seeking relief from code enforcement board decision ceased ownership of subject property during pendency of petition, and code enforcement board decision was stayed pending resolution of petition, Court could no longer grant Petitioner any effectual relief – petition is therefore moot – petition dismissed.  Key Largo Communities Corporation v. City of Largo, No. 07-0002AP-88A (Fla. 6th Cir. Ct. App. Div. Jan. 21, 2010).

County Small Claims Court:  APPELLATE PROCEDURE – Appealability/Improper Relief.   Certiorari is rarely the proper means for reviewing orders denying discovery because the harm can be corrected on appeal.  Any error in granting credit company’s motion for a protective order could be corrected on appeal.  Petition denied.  Eggitt v. Atlantic Credit & Finance, Inc., Appeal No. 08-000044AP-88B (Fla. 6th Cir. App. Ct. July 17, 2009).

Petitions for Writs of Mandamus, Prohibition, Quo Warranto, and/or Habeas Corpus: APPELLATE PROCEDURE – Improper relief – A petition for extraordinary relief is not a second appeal and cannot be used to litigate issues that could have been raised on direct appeal or in a postconviction motion.  A petition for writ of habeas corpus is used to determine whether an individual is legally detained. – Petition for Writ of Habeas Corpus dismissed.  Kelly v. Pinellas County Sheriff,  No. CRC 08-00056 APANO (Fla. 6th Cir.App.Ct. Sep. 5, 2008).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: APPELLATE PROCEDURE – improper relief – constitutional challenges – Petition only involves constitutional challenges to the City’s code – constitutional challenges to code must be brought as an original action in circuit court - Petition dismissed.  Morningside East Condominium I Assoc.  v. City of Clearwater , Appeal No. 07-0070AP-88A ( Fla. 6th Cir. App. Ct. Feb. 21, 2008).

County Criminal Court: APPELLATE PROCEDURE – Appealability/Improper Relief. A pre-trial order denying the defendant’s motion in limine was not entitled to certiorari review because defendant failed to show an appeal following any adverse trial verdict would not provide adequate relief. Petition denied. Sarafian v. State, No. CRC 05-16 APANO, (Fla. 6th Cir.App.Ct. Jan 5, 2006).

County Civil Court :  APPELLATE PROCEDURE – Appealability/Improper Relief – order denying expert witness fee – common law certiorari review improvidently granted - appellate court lacks jurisdiction to review petition – adequate and complete remedy is available to petitioner at the conclusion of the trial court proceedings – Petition dismissed.  Hartley Chiropractic Center v. State Farm Mutual Automobile Ins. Co., No. 03-1111CI-88B (Fla. 6th Cir. App. Ct. August 23, 2004). 

The Petition must be denied as it does not provide any relevant facts to refute the findings of fact and conclusions of law entered by the hearing officer below, does not set forth the nature of relief sought and is not accompanied by an appendix as prescribed by Rule 9.220. Johnson v. City of St. Petersburg, No. 01-5213-CI-88A (Fla. 6th Cir. Ct. Oct. 23, 2001).

In filing his petition for writ of common law certiorari, the Petitioner failed to show that there has been a violation of a clearly established principle of law resulting in the miscarriage of justice or that the lower court’s order would cause material injury that could not be remedied on appeal from a final judgment.  Certiorari is not designed to serve as a writ of expediency and should not be granted merely to relieve petitioners from the expense and inconvenience of trial. Leverone v. Liberty Mutual Insurance Co., No. 01-7096-CI-88A (Fla. 6th Cir. Ct. October 11, 2001).

Had the Appellant attached all orders sought to be reviewed to her Notice of Appeal, as required by the Florida Rules of Appellate Procedure, Rule 9.110(d), the Court would have ruled at the outset that it had no jurisdiction to review those orders that were not timely appealed.  Additionally, the traditional test for whether an order of the lower court is final for review purposes, is whether decree disposes of cause on its merits leaving no questions open for judicial determination except for execution or enforcement of decree if necessary. Alecia Lindsay-Stokes v. Liberty Mutual Insurance Company, No. 01-557-CI-88A (Fla. 6th Cir. Ct. August 31, 2001).

The Court was unable to conclude, based upon the affidavits and documents filed by the Appellee in support of its Motion to Dismiss Appeal, that there has been an accord and satisfaction of all issues raised by the Appellant such that her appeal would become moot. Lindsay-Stokes v. Liberty Mutual Insurance Company, No. 01-557-CI-88A (Fla. 6th Cir. Ct. April 18, 2001).

The trial court's order setting aside a default entered by the Clerk of Court is not appealable. Roe v. Spiegelberg, No. 95-822 CI (Fla. 6th Cir. Ct. March 1, 1995).

An equitable estoppel argument is not appropriate in a certiorari proceeding. It should be raised in a declaratory action or in a claim for injunctive relief. Baggs v. City of South Pasadena, No. 94 1074 CI (Fla. 6th Cir. Ct. Aug. 31, 1995).

If petitioners believe a statute to be unconstitutional they must bring a declaratory action rather than attempt to raise the issue in a purely certiorari action. Menconi v. Florida Dept. of Hghwy. Safety and Motor Vehicles, No. 95-7307 CI (Fla. 6th Cir. Ct. Jan. 2, 1996).

Petitioner's demand that the trial court be ordered to remove the capias was premature because the trial court had not yet ruled on the petitioner's motion filed in the trial court. Ruble v. Overton, No. CRC 96-8164 CFANO (Fla. 6th Cir. Ct. May 16, 1996).

A reviewing court is not the court to grant relief pursuant to Florida Rule of Civil Procedure 1.540. Baggs v. City of South Pasadena, No. 94-1074 CI (Fla. 6th Cir. Ct. Nov. 14, 1996).

Appellate court declined to treat non-appealable order as a petition for writ of certiorari because the appellant had the adequate remedy of appealing the final judgment at the end of the proceedings in the trial court. March v. Ford, No. 96-5406 CI (Fla. 6th Cir. Ct. Sept. 6, 1996).

Arbitration

Arbitration Panel:  APPELLATE PROCEDURE – Arbitration – decision by an arbitration panel on a motion for partial summary judgment two days after its service, denied due process.  Arbitration panel was without jurisdiction to enter judgment that contradicted the panel’s previous finding.  Final judgment reversed.  Henderson v. Sanders Construction, Inc., Appeal No.07-0050AP-88A (Fla. 6th Cir.App.Ct. Oct. 6, 2008).

Any appeal from a voluntary binding arbitration decision originating out of a circuit civil case should be to the circuit civil division that was originally assigned the case, not the appellate division of the circuit court. McDill Columbus Corp. v. Weldon Homes, Inc., No. 95-914 CI (Fla. Cir. Ct. April 20, 1995).

Jurisdiction

County Civil Court: APPELLATE PROCEDURE – Jurisdiction - Petition for writ of certiorari to review pretrial discovery order denying motion for protective order.  Petitioner failed to demonstrate irreparable harm which is a jurisdictional prerequisite for certiorari review.  Trial court has broad discretion in matters associated with pretrial discovery.  Petition dismissed; petitioner's motion for appellate attorney's fees denied.  Effie Ward v. D.A.N. Joint Venture, III, L.P., No. 09-000059AP-88A (Fla. 6th Cir. App. Ct. March 16, 2010).

County Criminal Court: APPELLATE PROCEDURE – Jurisdiction – Appellate court was without jurisdiction to review appeal untimely filed. Order dismissing appeal. Williams v. State, No. CRC 06-86 APANO, (Fla. 6th Cir. App. Ct. June 6, 2007).

County Criminal Court: APPELLATE PROCEDURE – Jurisdiction – Appellate court did not have jurisdiction where appellant was attempting to appeal a non-dispositive, pre-trial ruling. Appeal dismissed. Jester v. State, No. CRC 05-30 APANO, (Fla. 6th Cir.App.Ct. November 17, 2006).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: JURISDICTION- Because the Board of County Commissioners remanded the Project to the County Development Review Committee DRC the Board has retained administrative jurisdiction over the matter- Where a lower body has not had an opportunity to rule on an issue and has retained jurisdiction, the matter is not ripe for review by certiorari, and dismissal for lack of subject matter jurisdiction is appropriate. Since the Board has not completely . Petition dismissed. Byle v. Pasco County, 51-2006-CA-22WS, (Fla. 6th Cir. App. Ct. May 12, 2006).

The appellate court is without jurisdiction to consider the merits of the Petitioner’s appeal, as the Petition for Writ of Certiorari was filed beyond thirty days from rendition of the Order sought to be reviewed.  Johnson v. Dept. of Highway Safety and Motor Vehicles, No. 01-2360-CI-88A (Fla. 6th Cir. Ct. April 3, 2001).

Litigation Immunity

County Civil Court:  APPELLATE PROCEDURE – Litigation Immunity – Litigation immunity may not be raised by a motion to dismiss unless the facts giving application to the defense are clearly apparent on the face of the complaint.  It is typically pleaded as an affirmative defense and then considered after the facts are developed by summary judgment or trial.  The County Court dismissed without developing the record with respect to the applicability of the defense under the facts presented - Reversed and remanded.  Eggitt v. Atlantic Credit & Finance, Inc., No. 09-000024AP-88B (Fla. 6th Cir. App. Ct. June 22, 2010).

Preservation of Error

County Criminal Court: APPELLATE PROCEDURE – Preservation of Error – Question of whether trial court erred in imposing restitution lien was not preserved for appeal when Appellant made no objection or even suggestion of error during lower court proceedings.  Judgment and sentence affirmed; orders addressing restitution affirmed.  Moore v. State, No. 12-00018APANO (Fla. 6th Cir. App. Ct. May 13, 2013).

County Criminal Court: APPELLATE PROCEDURE – Preservation of Error – Appellant’s argument that reversible error resulted from improper prosecutorial comments were not preserved for appellate review.  Affirmed.  Iasevoli v. State, No. CRC10005364CFAWS, (Fla. 6th Cir.App.Ct. May 16, 2011).

County Criminal Court: APPELLATE PROCEDURE –Preservation of Error – Even had Appellant objected to the lack of an interpreter for his accuser, any error was harmless.  Affirmed.  Jerry Rollins Oglesby v. State, No. CRC10000993CFAWS, (Fla. 6th Cir.App.Ct. March 31, 2011).

County Criminal Court: APPELLATE PROCEDURE – Preservation of Error – Appellant’s arguments that the trial court erred by allowing the State to introduce evidence and make improper comments were not preserved for appellate review.  Affirmed.  Stewart v. State, No. CRC0907093CFAWS, (Fla. 6th Cir.App.Ct. January 4, 2011).

County Criminal Court: APPELLATE PROCEDURE – Preservation of Error – While trial court abused its discretion by sua sponte dismissing case after State asked for a continuance, State failed to raise an objection.  Order of dismissal affirmed.  Hamilton-Lefkowitz v. State, No. CRC0806355CFAWS, (Fla. 6th Cir.App.Ct. February 4, 2010).

County Criminal Court: APPELLATE PROCEDURE – Preservation of Error – Defendant pleaded no contest, but failed to preserve any issues for appellate review.  Judgment and sentence affirmed.  LaTulip v. State, No. CRC 08-0279 CFAES, (Fla. 6th Cir. App. Ct. February 1, 2010).

County Criminal Court: APPELLATE PROCEDURE – Preservation of Error – Defendant pleaded no contest, but failed to preserve any issues for appellate review. Ineffective assistance of counsel must be raised by appropriate motion.  Judgment and sentence affirmed.  Bonser v. State, No. CRC 08-00012 APANO, (Fla. 6th Cir.App.Ct. July 22, 2008).

County Civil Court:  PRESERVATION OF ERROR – no issues framed for review – court cannot pass on issues that are not properly presented for review - -record supports the trial court’s finding that there was not a valid contract – no transcript of the hearing supports affirmance of the trial court’s ruling – Final Judgment affirmed.  Hanna v. Woods, Appeal No. 07-0020AP-88A ( Fla. 6th Cir. App. Ct. Dec.  21, 2007).

County Civil Court:  APPELLATE PROCEDURE –– Preservation of Error -  without a transcript the Appellant is unable to demonstrate that the trial court committed reversible error - Final Judgment affirmed.  Heeder v. Dowd, Appeal No. 06-0055AP-88A (Fla. 6th Cir. App. Ct. July 17, 2007)

County Civil Court:  APPELLATE PROCEDURE –– Preservation of Error -  Court cannot review issues that were not presented to trial court – Appellant failed to meet burden of demonstrating that the trial court committed reversible error - Final Judgment affirmed.  Akopova v. Boyer, Appeal No. 07-0004AP-88A (Fla. 6th Cir. App. Ct. July 17, 2007)

County Civil Court: APPELLATE PROCEDURE – Preservation of Error – lack of transcript - Appellant is unable to demonstrate reversible error or overcome presumption of correctness of trial court’s ruling without a transcript - Final Judgment affirmed.  Stanelis v. Age Institute of Florida, Appeal No. 06-0054AP-88B (Fla. 6th Cir. App. Ct. June 14, 2007).

County Civil Court: APPELLATE PROCEDURE – Preservation of Error – lack of transcript - Appellant is unable to demonstrate reversible error or overcome presumption of correctness of trial court’s ruling without a transcript - Final Judgment affirmed.  Graydon v. Promo, Appeal No. 06-0015AP-88B (Fla. 6th Cir. App. Ct. Feb. 27, 2007).

County Civil Court: APPELLATE PROCEDURE – Preservation of Error – lack of transcript - Appellant is unable to demonstrate reversible error or overcome presumption of correctness of trial court’s ruling without a transcript - Final Judgment affirmed.  Ellis v. Nanos, Appeal No. 06-0024AP-88A (Fla. 6th Cir. App. Ct. Feb. 7, 2007).

County Civil Court: APPELLATE PROCEDURE – Preservation of Error – Florida Rules of Civil Procedure, Rule 1.540 – a motion for relief from judgment under Rule 1.540 cannot be used to overcome a litigant’s failure to file a timely notice of appeal – appellate court does not have jurisdiction to review new claims or evidence - Judgment affirmed.  McCloskey v. Amelia Auto Transport, Inc., Appeal No. 06-0041AP-88A (Fla. 6th Cir. App. Ct. Feb. 7, 2007).   

County Criminal Court: APPELLATE PROCEDURE - Preservation of Error -Defendant who pleaded no contest to charges and did not preserve any issue for appellate review, voluntarily gave up his right to appeal. Judgment and sentence affirmed. Neverson v. State, No. CRC 05-88 APANO, (Fla. 6th Cir. App.Ct. December 4, 2006).

County Civil Court:  APPELLATE PROCEDURE – Preservation of Error – appellant unable to overcome presumption of correctness of trial court’s order without a transcript -  Final Judgment affirmed.  Lenwell v. James Formelio, d/b/a All Stars, Appeal No. 06-0020AP-88A (Fla. 6th Cir. App. Ct. Nov. 3, 2006). 

County Civil Court: APPELLATE PROCEDURE – Preservation of Error – no transcript - Appellants/Buyers are unable to demonstrate that trial court erred in entering judgment in favor of Appellees/Sellers for the return of earnest money - Final Judgment affirmed. Long Qin Lu v. Stewart Title of Pinellas, Inc., Appeal No. 05-0061AP-88B ( Fla. 6th Cir. App. Ct. June 30, 2006).

County Criminal Court: APPELLATE PROCEDURE – Preservation of Error – Defendant pleaded no contest, but failed to preserve any issues for appellate review. Judgment and sentence affirmed.  Nunn v. State, No. 05145CFAES (Fla. 6th Cir. App. Ct. February 15, 2006).

County Civil Court:  APPELLATE PROCEDURE – Preservation of error – writ of garnishment – without a transcript or statement of evidence, Appellant failed to show that trial court erred in dismissing garnishment against Appellee – dismissal affirmed.  Petsch v. Housekeeping Management, Inc., Appeal No. 05-0026AP-88B (Fla. 6th Cir. App. Ct. Feb. 14, 2006). 

County Civil Court: APPELLATE PROCEDURE – preservation of error – appellate court cannot address claims that were not framed by the pleadings or litigated by the parties – without a transcript or statement of the evidence, Appellant has failed to demonstrate error – Amended Final Judgment affirmed.  Hansen v. Manatee Car & Truck Sales, Inc., No. 05-0003AP-88A (Fla. 6th Cir. App. Ct. Jan. 27, 2006). 

County Criminal Court: APPELLATE PROCEDURE – Preservation of Error. State failed to preserve for appellate review alleged sentencing errors by failing to raise any objections to the withholding of adjudication and failure to impose restitution. State v. George, No. CRC 04-52 APANO, (Fla. 6th Cir.App.Ct. Dec. 12, 2005).

County Criminal Court: APPELLATE PROCEDURE – Preservation of Error – Defendant pleaded no contest, but failed to preserve any issues for appellate review. Judgment and sentence affirmed, but without prejudice for defendant to file a proper motion to withdraw plea. Moore v. State, No. CRC 04-5 APANO, (Fla. 6th Cir.App.Ct. March 22, 2005).

County Criminal Court: APPELLATE PROCEDURE – Preservation of Error – State failed to specifically object the that portion of the sentence it know claims to be improper. Therefore, the error was not preserved for appellate review. – Sentence affirmed. State v. Simmons, No. CRC 04-2 APANO (Fla. 6th Cir. App. Ct. Dec. 20. 2004).

County Criminal Court: APPELLATE PROCEDURE – Preservation of Error –Defendant’s failure to make specific objection to breath test results precluded her from raising the issue on appeal. Arundel v. State, No. CRC 03-56 APANO (Fla. 6th Cir. App. Ct. Dec. 1, 2004).

County Criminal Court: APPELLATE PROCEDURE – Preservation of Error –Defendant failed to preserve any issue for appellate review by entering a guilty plea to the charges. – Judgment and sentence affirmed. Scott v. State, No. CRC 03-80 APANO (Fla. 6th Cir. App. Ct. Nov. 22, 2004).

County Criminal Court:  APPELLATE PROCEDURE – Preservation of Error – motion for rehearing – argument raised in motion for rehearing is sufficient to preserve issue for appeal – Reversed and remanded for full hearing.  State v. Mendoza, No. 02-11945 (Fla. 6th Cir. App. Ct. April 28, 2003).

County Criminal Court:  APPELLATE PROCEDURE – Preservation of Error – trial judge’s misstatement to jury was not properly preserved for appeal – no specific or contemporaneous objection was ever lodged – even if preserved, misstatement would be harmless in light of correction, curative instruction, and evidence adduced – Conviction affirmed.  Matthews v. State, No. 01-19588 (Fla. 6th Cir. App. April 28, 2003).

The defendant failed to preserve the alleged improper striking of a black venireperson because he failed to renew his objection prior to the time the jury was sworn. Perrin v. State, No. CRC 00-5221 CFANO (Fla. 6th Cir.Ct. Jan. 11, 2001).

The defendant failed to preserve the issue of the lawfulness of the stop because he did not make a motion to suppress or object during the trial to the admission of the evidence obtained as a result of the stop; therefore, he waived the issue. Griffin v. State, No. CRC 99-21354 CFANO (Fla. 6th Cir.Ct. Jan. 8, 2001).

The defendant did not preserve the jury instruction issue for appellate review because he failed to offer proposed jury instructions on the issue. Deal v. State, No. CRC 95-490 CFANO (Fla. 6th Cir. Ct. September 5, 1995).

When the officer failed to appear for trial the state did not seek a continuance, nolle prosequi the case or even object to the dismissal, therefore the state failed to preserve the issue for appellate review. State v. Allegretti, No. CRC 95-17190 CFANO (Fla. 6th Cir. Ct. May 15, 1996).

The appellant's claim that the trial court lacked personal jurisdiction over her was not preserved for appellate review because she defended on the merits rather than challenge jurisdiction via a proper pleading. Baran v. WRH Mtg., Inc., No. 96-3746 CI (Fla. 6th Cir. Ct. July 15, 1996).

Principles of Procedure

County Civil Court: APPELLATE PROCEDURE - Principles of Procedure - Appellant attempts to raise new arguments on appeal that were not raised in response to the complaint or in response to the motion for summary judgment.  No transcript of hearing.  As a general rule, absent fundamental error, appellate court will not consider points raised for the first time on appeal. Trial court’s order granting Motion for Final Summary Judgment affirmed.  Gonzalez v. Midland Funding LLC, No. 11-000039AP-88A (Fla. 6th Cir. App. Ct. May 10, 2012).

County Criminal Court: APPELLATE PROCEDURE – Principles of Procedure – mistrial.  Appellate court could not consider issues that were not properly preserved for appeal.  The proper procedure to move for a mistrial is to object at the time of the improper comment, and if the objection is sustained, to contemporaneously move for mistrial.  Judgment and sentence affirmed.  James P. Skillen v. State, No. 08-00050APANO (Fla. 6th Cir.App.Ct. October 21, 2009).

County Criminal Court: APPELLATE PROCEDURE – Principles of Procedure.  Motion for rehearing by the appellate panel was denied where the appellant’s motion failed to point to any law or fact that was not already presented in the appellant’s initial brief, and the motion did not allege that the Court misconstrued the facts in the record.  Kevin Michael Farrell v. State, No. 08-00033APANO (Fla. 6th Cir.App.Ct. October 16, 2009).

County Criminal Court :  APPELLATE PROCEDURE – Principles of Procedure – dispositiveness of motion to suppress – trial judge has obligation to determine whether issues raised in motion to suppress are dispositive – Order and conviction affirmed.  Dulus v. State, No. 02-15001 (Fla. 6th Cir. App. Ct. April 28, 2003).

Florida law does not require a rehearing by a three-judge panel and no uniform statewide criterion presently exists.  Local rules permit a single qualified judge to function as the circuit court when conducting first-tier certiorari review.  Assalti v. Department of Highway Safety & Motor Vehicles, No. 01-0035-CI-88A (Fla. 6th Cir. Ct. May 24, 2001).

Documents not a part of the record developed below will not be considered by the appellate court.  It is inappropriate, and will subject the movant to sanctions, to inject matters into the appellate proceedings that were not before the lower court. Lindsay-Stokes v. Liberty Mutual Ins. Co., No. 01-557-CI-88A (Fla. 6th Cir. Ct. February 6, 2001).

A trial court’s factual determinations are entitled to great weight. Furthermore, a trial court’s rulings come to the appellate court with a presumption of correctness. Swez v. State, No. CRC 99-14523 CFANO (Fla. 6th Cir. Ct. Jan. 8, 2001).

Credibility determinations are to be made by the trial court, not the appellate court. Wise v. State, No. CRC 00-6658 CFANO (Fla. 6th Cir.Ct. Jan. 8, 2001).

The decision of the trial court has the presumption of correctness, the burden is on the appellant to demonstrate error, and the appellate court is not at liberty to reweigh the evidence or credibility of witnesses. Nowland v. State, No. CRC 95-1353 CFANO (Fla. 6th Cir. Ct. June 2, 1995).

Trial court's order is presumed correct, and the appellate court must interpret evidence and reasonable inferences and deductions therefrom in a manner most favorable to sustain the ruling. State v. Middleton, No. CRC 95-1530 CFANO (Fla. 6th Cir. Ct. July 21, 1995).

The trial court, not the appellate court, determines the credibility of witnesses. A trial court's determination of credibility is presumed to be correct. State v. Benning, No. CRC 95-6680 CFANO (Fla. 6th Cir. Ct. Dec. 28, 1995).

If a matter can be resolved without ruling on the constitutionality of an ordinance, trial courts commit error when they proceed to rule on the constitutional issue. State v. King , No. CRC 95 19559 CFANO (Fla. 6th Cir. Ct. Nov. 19, 1996).

Record

County Civil Court: APPELLATE PROCEDURE – Record – Since an appellate court cannot consider facts outside the record, the judgment must be affirmed.  Cheryl Wise v. Citibank, N.A., No. 12-AP-000011-WS (Fla. 6th Cir. App. Ct. March 19, 2013).

County Civil Court: APPELLATE PROCEDURE – Record – To show error, Appellant must provide the appellate court with an adequate record of the trial proceedings; without a transcript of the hearing in this case and no fundamental error of law appearing on the face of the final judgment, Appellant could not overcome presumption of correctness of trial court’s decision and demonstrate reversible error. Judgment affirmed. Joseph Rainier v. State, No. 11-CF-001413-WS (Fla. 6th Cir. App. Ct. July 20, 2012).

County Civil Court: APPELLATE PROCEDURE – Record – To show error, the appellant must provide the appellate court with an adequate record of the trial proceedings; without a transcript of the hearing in this case and no fundamental error of law appearing on the face of the final judgment, appellant could not overcome presumption of correctness of trial court’s decision and demonstrate reversible error. Judgment affirmed. Cordas v. Periatomby, No. 08-000049AP-88A (Fla. 6th Cir. App. Ct. February 16, 2010).

County Civil Court: APPELLATE PROCEDURE – Record – To show error, the appellant must provide the appellate court with an adequate record of the trial proceedings;  Without a transcript of the hearing in this case and no error of law appearing on the face of the final judgment, appellant could not overcome presumption of correctness of trial court’s decision and demonstrate reversible error no transcript-Judgment affirmed.  Reyes v. Linder, No. 51-2008-AP-10 (Fla. 6th Cir App. Ct. April 16, 2009).

County Civil Court: APPELLATE PROCEDURE – record – no transcript-Court is limited to review of the trial court’s Order- court found that Veciada forfeited her rights to the custody of dog “based on her relationship” with Cabrera-Court can not determine why that relationship would support a finding that she forfeited her rights –remand case back to the trial court in order for court to clarify what is meant by the term “relationship” or make further factual findings to support the court’s conclusion. Cabrera and Veciada v. Pasco County, No. 512006AP2 (Fla. 6th Cir App. Ct. February 23, 2007).

County Criminal Court: APPELLATE PROCEDURE – Record – Trial court’s judgment clothed with a presumption of correctness, and can’t be disturbed in absence of record demonstrating error. Judgment affirmed. Smith v. State, No. CRC 05-15 APANO, (Fla. 6th Cir.App.Ct. June 28, 2006).

County Criminal Court: APPELLATE PROCEDURE – Record – Judgment and sentence are presumed correct unless the appellate court is provided with a record sufficient to evaluate the appellant’s claim of error. No record presented, thus judgment and sentence affirmed. Shanklin v. State, No. CRC 05-64 APANO, (Fla. 6th Cir.App.Ct. May 17, 2006).

County Traffic Court: APPELLATE PROCEDURE – Record – Without a record, appellate court is unable to determine whether or not the trial court erred in (1)denying motion for judgment of acquittal and (2)for adjudicating defendant guilty in absence of competent substantial evidence to support charge; (3)appellant has failed to demonstrate any legal obligation for the court or state to preserve any record of the testimony-Order affirmed. Commons v. State, CRC044643CFAES (Fla. 6th Cir.App.Ct. September 20, 2005).

County Traffic Court: APPELLATE PROCEDURE – Record – Appellant has failed to demonstrate in the record any error in the trial court's decision. Cusma v. State, CRC0400140CFAES (Fla. 6th Cir. App.Ct. August 11, 2005).

County Criminal Court: APPELLATE PROCEDURE – Record – Since electronic recording system was not properly engaged, there is no transcript of the proceedings available. Therefore, the defendant is entitled to a new trial because the matters raised in the appeal are unable to be resolved without reference to the transcript of the proceedings. Judgment and sentence reversed. Tadlock v. State, No. CRC 04-7 APANO, (Fla. 6th Cir.App.Ct. July 7, 2005).

County Civil Court: APPELLATE PROCEDURE—Record:  Appellate court had to accept propriety of trial court’s denial of motion to vacate when no transcript or approved statement of evidence was filed.  Lazaro v. Robert A. Dempster Reporting Co., No. 04-0013AP-88A (Fla. 6th Cir. App. Ct. Jan. 24, 2005).

County Small Claims Court: APPELLATE PROCEDURE – record – Nonjury trial was held in which appellant participated and judgment on negligence and trespass claims was for appellee - Appellee had waived its demand for jury trial at pretrial conference that appellant did not attend – After trial, appellant claimed that it had not waived its constitutional right to trial by jury – Since appellant admitted in its brief that it participated in the trial and since it could not be ascertained whether it objected or acquiesced at trial to the waiver of jury trial because no transcript of the proceeding was provided, Final Judgment was affirmed. Steve’s Excavating and Paving, Inc, v. Verizon Florida, Inc., No. 02-3743-CI-88A (Fla. 6th Cir. App. Ct. May 8, 2003).

County Small Claims Court: APPELLATE PROCEDURE – record - evidence in the record did not prove that the damages exceeded the deposit retained by appellant-landlord – Appellant alleged trial court judge was biased since he stated appellee reminded him of his granddaughter - Without a transcript of the hearing in this case, and no error of law appearing on the face of the final judgment, appellant could not overcome presumption of correctness of trial court’s decision to demonstrate reversible error. McNeill v. LaBelle, No. 02-3923 CI-88A (Fla. 6th Cir App. Ct. Jan. 16, 2003).

County Small Claims Court: APPELLATE PROCEDURE – record - To show error, the appellant must provide the appellate court with an adequate record of the trial proceedings so that the court can properly consider all relevant factual issues and determine if the trial court’s judgment was supported by the evidence and whether the issues were properly preserved for appeal - Without a transcript of the hearing in this case and no error of law appearing on the face of the final judgment, appellant could not overcome presumption of correctness of trial court’s decision and demonstrate reversible error – Final judgment affirmed. Henderson v. Kotadia, No. 02-6529-CI-88A (Fla. 6th Cir. App. Ct. Jan. 8, 2003).

County Small Claims Court: APPELLATE PROCEDURE – record - Without a transcript of the hearing in this case and no error of law appearing on the face of the final judgment, appellant could not overcome presumption of correctness of trial court’s decision and demonstrate reversible error – Final judgment affirmed. Strickland v. Doyne, No. 02-4722-CI-88A (Fla. 6th Cir. App. Ct. Jan 8, 2003).

The Appellant has not specified any errors of the lower court nor presented any issues for review and the record shows that no error was committed in the proceedings below.  As the Appellant has not shown any basis for reversal of the lower court, the lower court’s Final Judgment is affirmed. Heideman v. Colton and Associates, No. 99-8466-CI-88A (Fla. 6th Cir. Ct. August 24, 2000).

Since there is no record of testimony or a statement of evidence, and the judgment is not erroneous on its face, the judgment must be affirmed. Marcus v. Nannie's Who Care, Inc., No. 93-4586 CI (Fla. 6th Cir. Ct. Feb. 17, 1995).

If there is no record of witnesses' testimony or of evidentiary rulings, and no statement of evidence, judgment that is not fundamentally erroneous on its face must be affirmed. Katon v. Ind. Mortuary Service, Intl., Inc., No. 95-739 CI (Fla. Cir. Ct. June 13, 1995).

Absence of a transcript generally precludes appellate review. Demler v. Beretta, No. 96-2675 CI (Fla. 6th Cir. Ct. Aug. 22, 1996).

Since the appellant was not facing jail time for violating a city ordinance, he was not entitled to a free transcript. The lack of a transcript precluded review of most of the appellant's issues. Forty v. State, No. CRC 95-11250 CFANO (Fla. 6th Cir. Ct. Sept. 25, 1996).

Standard of Review

County Criminal Court: APPELLATE PROCEDURE – Standard of Review – trial court did not err in denying motion for judgment of acquittal - in reviewing trial court’s denial of defendant’s motion for judgment of acquittal, when defendant’s criminal conviction is based upon both direct and circumstantial evidence, the appellate court applies a de novo standard of review.  Trial court’s finding of guilt was based on competent, substantial evidence - Judgment and sentence affirmed.  Carter v. State,No. CRC10-00007APANO (Fla. 6th Cir. App. Ct. September 29, 2010).

County Civil Court: APPELLATE PROCEDURE – Standard of review – issue of statutory interpretation is entitled to de novo review on appeal.  Check cashing service was not, under the Uniform Commercial Code, a “holder in due course” of a check as the check was not taken in “good faith.”  Check cashing service did not act in “good faith” when it failed to adhere to reasonable commercial standards of fair dealing by making no effort to authenticate an out-of-state personal check for an amount not typically cashed by the service.  Final judgment reversed.  Latek v. McBride Enterprises, Inc., Appeal No.07-000054AP-88A (Fla. 6th Cir.App.Ct. Nov. 13, 2008).

County Civil Court:  STANDARD OF REVIEW – preservation of error - non-jury trial – trial court’s findings are clothed with a presumption of correctness and these findings will not be disturbed unless clearly erroneous – trial court is charged with resolving conflicting evidence - Appellant unable to demonstrate findings are clearly erroneous and judgment is supported by competent substantial evidence - Court cannot rule on issues not presented to the trial court - Final Judgment affirmed.  Sabala v. Harper, Kynes, et. al., Appeal No. 07-0026AP-88A ( Fla. 6th Cir. App. Ct. Dec. 21, 2007). 

County Civil Court:  STANDARD OF REVIEW – non-jury trial – trial court’s findings are clothed with a presumption of correctness and these findings will not be disturbed unless clearly erroneous – Appellant unable to demonstrate findings are clearly erroneous and judgment is supported by competent substantial evidence – courts will not re-try cases on appeal – no transcript of the hearing supports affirmance of the trial court’s ruling – Final Judgment affirmed.  Brady v. Stoupas, Appeal No. 07-0013AP-88B ( Fla. 6th Cir. App. Ct. November 30, 2007). 

County Civil Court:  STANDARD OF REVIEW – non-jury trial – defamation - trial court’s findings are clothed with a presumption of correctness and these findings will not be disturbed unless clearly erroneous – Appellant unable to demonstrate findings are clearly erroneous and judgment is supported by competent substantial evidence – courts will not re-try cases on appeal – statements in petition for injunction were privileged and could not support defamation claim – Final Judgment affirmed.  Alexeev v. Johnson, Appeal No. 07-0015AP-88A ( Fla. 6th Cir. App. Ct. Oct. 16, 2007). 

A de novo standard of review is applied when reviewing an order granting a motion to dismiss.  Jenkins v. City of St. Petersburg Police Dept., No. 01-4498-CI-88A (Fla. 6th Cir. Ct. September 20, 2001).

The lower court did not abuse its discretion in finding that the Appellant was not entitled to supplemental attorney’s fees and costs.  Alecia Lindsay-Stokes v. Liberty Mutual Insurance Company, No. 01-557-CI-88A (Fla. 6th Cir. Ct. August 31, 2001).

The trial court did not abuse its discretion in ordering a new trial. A motion for a new trial is addressed to the sound discretion of the trial judge and will not be disturbed absent a clear showing of abuse of discretion. Near v. Stinson, No. 00-1732CA (Fla. 6th Cir. Ct. May 10, 2001).

Standard governing review of trial court's denial of a motion for relief from final judgment under Florida Rule of Civil Procedure 1.540(b) is whether or not the court abused its discretion. Zugich v. Stamen, No. 94-1281 CI (Fla. 6th Cir. Ct. March 20, 1996).

Timeliness

County Traffic Court: APPELLATE PROCEDURE – Timeliness – Appellate court does not have jurisdiction to entertain appeal when notice was untimely.  Appeal dismissed.  White v. State, CRC11-01603CFAWS (Fla. 6th Cir. App. Ct. June 11, 2012).

County Civil Court: APPELLATE PROCEDURE – Timeliness – Appellate court does not have jurisdiction to entertain appeal when notice was untimely.  Even if Appellant was not procedurally barred, his arguments would fail.  Appeal Dismissed.  Kacher v. Simpson Environmental Service, Inc., Case No. 09-AP-000011-ES (Fla. 6th Cir. App. Ct. October 13, 2010). 

Appellate Procedure: Timeliness – Even though filing of notice of appeal was only one day late, it is was still beyond the time limit, thus appellate court was without jurisdiction. Appeal dismissed. Aiello v. State, CRC 06-30 APANO, (Fla. 6th Cir. App. Ct. June 26, 2007).

County Civil Court: APPELLATE PROCEDURE – Timeliness – Court does not have jurisdiction to review attorney’s fees issues as notice of appeal was not timely filed – an order awarding attorney’s fees and setting a specific amount is a final appealable order – an unauthorized motion for rehearing does not postpone the rendition of the order to be appealed - Judgment affirmed.  Lombardo v. Haige, Appeal No. 06-0011AP-88B (Fla. 6th Cir. App. Ct. Feb. 5, 2007). 

The Court is without jurisdiction to review the merits of the Amended Petition for Writ of Certiorari as the Petitioner failed to file her petition within thirty days of the rendition of the decision sought to be reviewed.  Fisher v. City of St. Pete Beach, No.  01-8630-CI-88A (Fla. 6th Cir. Ct. May 28, 2002).

The Court is without jurisdiction to review a Petition for Writ of Certiorari filed more than 30 days from the entry of the order sought to be reviewed. Donaldson v. State of Florida, Dept. of Highway Safety and Motor Vehicles, No. 00-8852-CI-88A (Fla. 6th Cir. Ct. February 23, 2001). Not Final Until Time Expires to File Rehearing Motion and, if filed, Determined.

During the pendency of this appeal, the variance and reinstatement granted by the Board became null and void due to the property owner’s failure to timely comply with the conditions imposed.  This appeal has become moot, as the issues presented by the Petitioner have ceased to exist and any judicial determination made by this Court would have no actual effect. Historic Roser Park Neighborhood Assoc., Inc. v. City of St. Petersburg, No. 00-0395-CI-88A (Fla. 6th Cir. Ct. December 7, 2000).

Appeal was dismissed because the defendant's Notice of Appeal was untimely. Although the defendant filed a motion for new trial with the trial court, it was untimely. Therefore, it was insufficient to toll the time for filing the Notice of Appeal. Bodrug v. State, No. CRC 94-14875 CFANO (Fla. 6th Cir. Ct. Feb. 17, 1995).

Appeal dismissed because the appellant's Notice of Appeal was untimely. Although the appellant moved the trial court to reconsider its order, a motion for rehearing or reconsideration of a non final order is not authorized and does not toll the time for filing a Notice of Appeal. Hicks v. Musella, No. 95-357 CI (Fla. 6th Cir. Ct. March 3, 1995).

Petition for Writ of Certiorari was dismissed because it was filed beyond the thirty - day time limit. Lerew v. City of St.Petersburg, No. 96-2672 CI (Fla. 6th Cir. Ct. June 19, 1996).

Petition for Writ of Certiorari was denied as untimely because it was filed more than thirty days after the quasi-judicial board rendered its final decision. Theisen v. St.Pete Beach, No. 96-2688 CI (Fla. 6th Cir. Ct. Oct. 28, 1996).

Voluntary Dismissal

County Civil Court: APPELLATE PROCEDURE – Voluntary Dismissal – Attorney’s Fees – attorney’s fees are properly awarded by appellate court after a voluntary dismissal.  Harbor Specialty Insurance Co. v. MacMillan, No. 03-5018AP-88B (Fla. 6th Cir. App. Ct. March 16, 2004). 


ATTORNEY'S FEES

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  ATTORNEY’S FEES—Petitioner failed to comply with the safe harbor provision in § 57.105(4), Fla. Stat., and the Motion for Attorney’s Fees is therefore denied.  The Petition for Writ of Certiorari is dismissed as moot.  Holly Forkel v. State of Florida, Dep’t of Highway Safety and Motor Vehicles, No. 12-CA-4847-ES (Fla. 6th Cir. App. Ct. August 18, 2014).

County Civil Court: ATTORNEY’S FEES – Section 57.105, Fla. Stat. (2013). A letter threatening to seek attorney’s fees does not satisfy the requirement under §57.105(4), Fla. Stat., that a party seeking sanctions under that section must serve a motion seeking sanctions at least 21 days prior to an award of fees. The threatening letter was not a motion as required by statute. Order granting Appellee’s Attorney’s Fees reversed.  Seekell v. Crown Eurocars, Inc., No. 13-0041AP-88B (Fla. 6th Cir. App. Ct. February 6, 2014).

County Civil Court:  ATTORNEY'S FEES – Offer of Settlement – Sections 768.79(1) and 768.79(6)(b), Fla. Stat. (2009); Fla. R. Civ. P. 1.442.  Trial court considers the "net judgment" (including costs, prejudgment interest, and attorney's fees incurred at time offer of settlement tendered by plaintiff) when determining whether the threshold has been met to recover attorney's fees after rejection of offer of settlement by a defendant.  No abuse of discretion shown in the record as to the trial court's determination that the offer of settlement was made in bad faith.  Affirmed.  Linsky v. Bruce McLaughlin Consulting Services, No. 10-000049AP-88A(Fla. 6th Cir. App. Ct. January 11, 2012).

County Civil Court:  ATTORNEY'S FEES – Section 627.428(1), Florida Statutes, authorizes an award of attorney’s fees to the prevailing party on appeal irrespective of the non-prevailing party’s good faith – Appellant was the prevailing party, therefore is entitled to attorney’s fees on appeal – order granted & remanded for determination of attorney fees.  Melka v. Mercury Ins. Co. of Fla., Appeal No. 09-000056AP-88B (Fla. 6th Cir. App. Ct. February 3, 2011).

County Civil Court: ATTORNEY'S FEES—Summary Judgment—Section 57.105, Fla. Stat. (2006)—Summary judgment for defendant properly entered on claims of violation of federal Telephone Communications Protection Act and Florida Unfair and Deceptive Trade Practices Act based on section 365.1657(1), Florida Statutes (2006) (Florida facsimile spam statute) because facsimile did not constitute "commercial activity."  Plaintiff did not dismiss complaint during section 57.105(4), safe-harbor period and sanction of attorney's fees correctly awarded.  Judgments affirmed.  Law Office Of James M. Thomas, Esq., P.A. v. WorkNet Pinellas, Inc., No. 09-000015AP-88A(Fla. 6th Cir. App. Ct. August 17, 2010).

County Civil Court:  ATTORNEY'S FEES—On remand trial court was directed to determine entitlement to appellate attorney's fees.  Trial court denied appellate attorney's fees without making determination concerning entitlement as was mandated.  Order denying appellate attorney's fees reversed and remanded with instructions to trial court to make findings of fact and conclusions of law on entitlement to appellate attorney's fees and amount of appellate attorney's fees, if any.  Conklin v. Bateman and Aaronson, Esq., No. 09-000023AP-88A (Fla. 6th Cir. App. Ct. July 12, 2010).

County Civil Court:  ATTORNEY'S FEES—Construction Lien—Section 713.29, Florida Statutes provides that the prevailing party in action to enforce a construction lien is entitled to reasonable attorney's fees for trial and appeal.  Trial court did not abuse discretion when it determined that evidentiary hearing not necessary to determine prevailing party because parties settled in mediation.  Upon de novo review, there was no error in the trial court's determination of entitlement to attorney's fees and no abuse of discretion in finding there was no "prevailing party."  Order denying Appellee's motion for appellate attorney's fees vacated and attorney's fees awarded to Appellee.  Judgment affirmed, remanded for determination of amount of appellate attorney's fees.  The Diaz/Fritz Group, Inc. v. Hassan, No. 09-000027AP-88A (Fla. 6th Cir. App. Ct. June 4, 2010) (op. on rehearing).

County Civil Court - ATTORNEY FEES- Under Fla. R. Civ. P. 1.442, a settlement proposal is proper if it is sufficiently clear and definite to allow offeree to make informed decision without needing clarification - where proposal made it clear that offeree would be free of all claims from offeror in the present lawsuit and did not limit the offeree's ability to make future claims against other parties, proposal was enforceable -- judgment affirmed. Gulf Coast Rehabilitation & Wellness Center v. Progressive Express Insurance Co., Appeal No. 07-0060-AP-88A (Fla. 6th Cir. App. Div. June 30, 2009).

County Civil Court:  ATTORNEY’S FEES – Small Claims Court – Application of the Florida Rules of Civil Procedure, Rule 1.442 – trial court erred in awarding attorney’s fees based on Offer of Judgment made pursuant to Rule 1.442 when the Rules of Civil Procedure were never invoked in suit litigated in Small Claims Court – Order Upon Fees and Costs reversed.  Oliveria v. Britto, Appeal No. 06-0063AP-88A (Fla. 6th Cir. App. Ct. April 13, 2007). 

County Civil Court:  ATTORNEY’S FEES – settlement of claim – Florida Statute, section 627.428(1), provides that an insured is entitled to attorney’s fees upon rendition of judgment in insured’s favor – Civil Rule of Procedure Rule 1.525 requires a party to seek attorney’s fees within 30 days after filing of the judgment – trial court erred in denying insured’s attorney’s fees based on reasonable time rule – trial court’s decision must be affirmed since no final judgment had yet been entered - order affirmed, in part.  Chuong v. Progressive Express Ins. Co., Appeal No. 05-0068AP-88A (Fla. 6th Cir. App. Ct. Oct. 4, 2006).

County Civil Court:  ATTORNEY’S FEES – Florida Statutes, section 57.105 – safe harbor provision - trial court did not abuse its discretion in assessing 57.105 fees against plaintiff and plaintiff’s attorney – undisputed evidence showed that subject written real estate contract had been canceled and that any prior oral contract merged into the written contract – plaintiff had no involvement in the sale of property and was not in joint venture with the defendant so as to be entitled to sales commission – plaintiff’s attorney knew or should have known complaint was baseless -  safe harbor provision of section 57.105, which became effective after complaint was filed, did not apply - Final Judgment affirmed.  Intermab, Inc. v. Don Begg Real Estate, Inc., Appeal No. 05-0046AP-88A (Fla. 6th Cir. App. Ct. Sept. 8, 2006). 

County Civil Court: ATTORNEY’S FEES – voluntary dismissal – Appellant/Defendant was entitled to attorney’s fees as part of costs pursuant to Florida Statutes, § 83.48, after Plaintiff took voluntary dismissal of eviction complaint – Order Denying Attorney’s Fees reversed.  Walker v. Greenbench Realty and Property Management, Inc., No. 04-0087AP-88A (Fla. 6th Cir. App. Ct. December 16, 2005). 

County Civil Court: ATTORNEY’S FEES – Section 57.105(4) – voluntary dismissal – trial court erred in not awarding costs to defendant pursuant to Small Claims Rule 7.110(d) following plaintiff’s voluntary dismissal – defendant was not entitled to 57.105 fees as the defendant failed to comply with 57.05(4) requiring a party serve a motion seeking sanctions under this section. Judgment reversed, in part. Sawyer v. Largo Medical Center, Inc., Appeal No. 04-0058AP-88A (Fla. 6th Cir. App. Ct. June 27, 2005).

County Civil Court: ATTORNEY'S FEES—Trial court is not required to hold evidentiary hearing on whether sanctions are warranted under Section 57.105 so long as evidence is otherwise in the record—In absence of a transcript of relevant hearing, appellate court could not review whether trial court abused discretion in awarding sanctions—award affirmed.  Hays v. Progressive Express Ins. Co., No. 03-5043AP-88A (Fla. 6th Cir. Ct. App. Div. Jan. 25, 2005).

Petition for Writ of Prohibition, County Court: ATTORNEY’S FEES – Florida Statutes, § 57.105 – prohibition will be invoked only in emergency cases to forestall impending injury and when there is no other adequate legal remedy - trial judge has jurisdiction to award attorney’s fees pursuant to 57.105 following the Plaintiff’s voluntary dismissal under the safe harbor provisions of 57.105(4) - Petition denied. Krishnaiyer v. Southern Group Indemnity, Inc., No. 04-0028AP-88B (Fla. 6th Cir. App. Ct. Jan. 7, 2005).

County Civil Court: ATTORNEY’S FEES – voluntary dismissal – trial court erred as a matter of law in finding attorney’s fees could not be considered an element of costs pursuant to Florida Rules of Civil Procedure, Rule 1.420(d) – Florida Statute, § 83.48, defines costs as including attorney’s fees- Order Denying Attorney’s Fees reversed.  Haige v. Schueder, No. 02-8979CI-88B (Fla. 6th Cir. App. Ct. August 28, 2004). 

County Civil Court: ATTORNEY’S FEES – PIP benefits – plain language of 627.428 provides that attorney’s fees may not be awarded for time spent litigating the amount of attorney’s fees – attorney’s fees may be awarded for litigating the entitlement to fees – trial court correctly ruled that plaintiff was not entitled to attorney’s fees - Order affirmed.  Chiromed Chiropractic Center, Inc. v. Allstate Ins. Co., No. 03-5022AP-88B (Fla. 6th Cir. App. Ct. April 16, 2004).

County Court Civil: ATTORNEY’S FEES – In absence of contrary testimony about the amount of attorney’s fees, trial court erred in drastically reducing amount of fees awarded without offering sufficient explanation.  - Decision on fees reversed. Ellis v. Hartner, No. 01-3926 CI (Fla. 6th Cir.App.Ct. March 15, 2004).

The offer of judgment sufficiently identified the claim because there was only one claim at issue in the one-count complaint. Moreover, the proposal was not invalid because it did not identify the fees as attorney’s fees. Johnson v. State Farm Mutual Automobile Ins. Co., No. 00-1553 CI – 88B (Fla. 6th Cir.Ct. March 13, 2001).

A party has a right to appeal any matter by which it may be aggrieved and its failure to do so acts as an acceptance of the propriety of the matter.  Once the lower court made the determination that there was a complete absence of a justiciable issue of law or fact, the award of attorney’s fees to the prevailing party was required. Khalaf Health Center, Inc. v. Allstate Insurance Co., No. 99-8032-CI-88A (Fla. 6th Cir. Ct. January 10, 2001).

The lower court committed reversible error when it denied the Appellant’s motion for attorney’s fees as untimely when the lower court had specifically reserved jurisdiction in the Final Judgment to with regard to attorney’s fees. F & S Frame and Trim, Inc. v. Cline Design Build, Inc., et al, No. 99-6272-CI-88A (Fla. 6th Cir. Ct. July 21, 2000).

The resolution of the right to attorney’s fees can not be made until the litigation is concluded.  Therefore, this Court can not award attorney’s fees and costs at this time as the Appellant has the potential of receiving an adverse ruling on remand. Kosta v. Johnson, No. 98-8088-CI-88A, consolidated with No. 99-1189-CI-88B (Fla. 6th Cir. Ct. September 1, 2000).

Before a trial court may award attorney's fees it must: (1) make a specific finding as to the reasonable number of hours expended; (2) make a specific finding as to the reasonable hourly rate; (3) multiply the two; (4) when appropriate make specific findings justifying an increase or decrease in the fee. First Central Bank v. Baseball Bluebook, Inc., No. 95-823 CI (Fla. 6th Cir. Ct. Aug. 25, 1995).


BUSINESS ASSOCIATIONS

 


CIVIL PROCEDURE

County Civil Court: CIVIL PROCEDURE – Summary Judgment—Summary judgment of dismissal entered holding Petitioner's Demand Letter for PIP reimbursement was insufficient to meet condition precedent to filing action under Section 627.736(10), Fla. Stat. (2008).  Trial court properly found that "substantial compliance," not "strict compliance," with statute was required.  However, on de novo review the Appellate Court finds that the Demand Letter, combined with the attached billing statement in compliance with Section 627.736(5)(d), substantially complied with Section 627.736(10). Reversed and remanded for further proceedings. Bayfront Medical Center, Inc. v. USAA Casualty Insurance Co., No. 13-000034AP-88A (Fla. 6th Cir. App. Ct. May 7, 2014).

County Civil Court: CIVIL PROCEDURE – Eminent Domain case-Res Judicata-Expert Witness Fees- The doctrine of res judicata applies to a cause of action when there is a judgment on the merits, rendered in a former suit between the parties, on the same cause of action, by a court of competent jurisdiction-the fact that appellee (or appellee's attorney) did not secure payment from DOT for the appellant's deposition as well as any other costs and fees that may be owed does not in any way effect whether or not appellant is entitled to recover those same costs and fees from appellee under a contract or other theory- Final Judgment reversed. Baccus v. Blanco,no.51-2004-ap-14ws ( Fla. 6th Cir. App. Ct. December 29, 2005).

Default

County Civil Court: CIVIL PROCEDURE—Default– Final Judgment—Appellate court cannot consider new argument raised for the first time on appeal.  Trial court did not abuse its discretion in denying motion to vacate default judgment pursuant to Florida Rule of Civil Procedure 1.540(b) because no meritorious defense presented by credit card cardholder. Affirmed. Janet Dean v. FIA Card Services, N.A. f/k/a Bank of America d/b/a Bank of America Visa, No. 12-000055AP-88A(Fla. 6th Cir. App. Ct. June 11, 2013)

County Civil Court: CIVIL PROCEDURE – Default - Service of Process.  Return of service regular on its face presumed valid.  Appellant failed to present clear and convincing evidence at Fla. R. Civ. P. 1.540(b) hearing to impeach sworn return of service by process server.  Trial Court properly denied motion to set aside final judgment of foreclosure and to rescind foreclosure sale and to set aside entry of default.  Affirmed.  Koster v. Island Yacht Club CAI, No. 11-000033AP-88A (Fla. 6th Cir. App. Ct. December 16, 2011).

County Civil Court:  CIVIL PROCEDURE – Default – Default entered against Defendant for failure to appear at pretrial conference.  To set aside default in small claims division Defendant must demonstrate a meritorious defense by defensive pleading, sworn motion, or affidavit.  Trial court did not abuse its discretion denying motion to set aside default and final judgment because Defendant failed to set forth a meritorious defense.  Final Judgment affirmed.  Law Office of James M. Thomas, Esquire, P.A. v. Robert L. Jones, Inc., No. 10-000031AP-88A (Fla. 6th Cir. App. Ct. August 18, 2011).

County Civil Court: CIVIL PROCEDURE – Default – Service of Process – Default is improper where service is faulty; final judgment should not be entered without proper hearing to determine unliquidated damages – Reversed and Remanded.  Keown v. Youngclaus, Case No. 09-AP-000010-WS (Fla. 6th Cir. App. Ct. July 23, 2010). 

County Civil Court: CIVIL PROCEDURE – Default – service of process – party must present clear and convincing evidence to impeach service of process – Defendant’s testimony that she never received the summons is insufficient to overcome valid return of service – Order affirmed.  Deal v. Citizens and Southern National Bank, Appeal No. 06-0048AP-88B ( Fla. 6th Cir. App. Ct. March 26, 2008). 

County Civil Court: CIVIL PROCEDURE – Default – failure to pay rent into Depository - standard of review – Court cannot address issues that were not framed for review – Appellant unable to overcome to presumption of correctness of the trial court’s ruling – record shows that Appellant did not pay owed rent into the Court’s depository – Default Final Judgment affirmed.  Melbourne v. Mount Royal Realty Group III, Inc., Appeal No. 07-0021AP-88B ( Fla. 6th Cir. App. Ct. Nov. 30, 2007). 

County Civil Court:  CIVIL PROCEDURE – Default – abuse of discretion – trial court did not abuse its discretion in not setting aside Final Judgment entered upon default – the defendants failed to set forth a meritorious defense of any kind - Final Judgment affirmed.  E.G. Systems, Inc., d/b/a Scotts Lawn Care v. David, Appeal No. 07-0015AP-88A ( Fla. 6th Cir. App. Ct. Oct. 16, 2007). 

County Civil Court:  CIVIL PROCEDURE – default – excusable neglect - trial court’s decision to deny motion to set aside default judgment is reviewed under the abuse of discretion standard – trial court did not abuse its discretion in finding that defendant failed to establish excusable neglect – undisputed testimony established that defendant received summons and complaint but did not respond due to his own misunderstanding of the litigation process – judgment affirmed.  Leutert v. Portfolio Recovery Associates, LLC, Appeal No. 05-0070AP-88A (Fla. 6th Cir. App. Ct. Sept. 30, 2006). 

County Civil Court: CIVIL PROCEDURE—Default:  Trial court’s refusal to vacate default proper where defendant failed to show mistake, inadvertence, surprise or excusable neglect.  Lazaro v. Robert A. Dempster Reporting Co., No. 04-0013AP-88A ( Fla. 6th Cir. App. Ct. Jan. 24, 2005).

County Civil Court: CIVIL PROCEDURE – Default – Liquidated damages - Appellant, who was incarcerated during the trial court proceedings, was properly served and had notice of the pending action against him – it was prisoner’s responsibility to arrange to appear telephonically or to arrange to have an attorney appear on his behalf – upon entry of default, liquidated damages were deemed admitted and trial court could enter Final Judgment awarding such damages without holding an evidentiary hearing    Final Judgment affirmed.  Gosney v. State Farm Mutual Automobile Ins. Co., No. 03-5051AP-88A (Fla. 6th Cir. App. Ct. March 19, 2004). 

To set aside a default judgment, a party must demonstrate both a legal excuse for not complying with the rules of civil procedure and a meritorious defense. The facts establishing the legal excuse must be set forth in a sworn document, and the meritorious defense must be asserted by pleading or affidavit. Yaslowitz v. DeHaven, No. 94-6245 CI (Fla. 6th Cir. Ct. January 30, 1995).

Discovery

County Small Claims Court: CIVIL PROCEDURE – Discovery – Appellant was not entitled to pre-trial discovery, trial court did not abuse its discretion in admitting evidence and witness testimony that were not previously disclosed to Appellant prior to trial.  Judgment affirmed.  Georgianna Garcia v. David R. Vogel, Appeal No.12-AP-0003-WS (Fla. 6th Cir.App.Ct. Feb. 21, 2013).

Since the records that the trial court ordered to be produced were related to claims and defenses raised in the litigation, the trial court did not depart from the essential requirements of law in granting the motion to compel. Endeavor Int. Corp. v. Geissler, No. 95-7286 CI (Fla. 6th Cir. Ct. May 31, 1996).

Trial court erred in defaulting a party as a sanction for a discovery violation because the order did not contain a written express finding that the violation was willful. Southern Truss of Tampa, Inc., v. Hively, No. 95-6042 CI (Fla. 6th Cir. Ct. June 13, 1996).

Anyone, including a medical expert who has not received expert witness fees in advance, who ignores a subpoena is subject to being held in contempt of court. Yanchuck, Berman & Kasaris, P.A. v. Jeserski, No. 95-1870 CI (Fla. 6th Cir. Ct. June 28, 1996).

Dismissal

County Civil Court:  CIVIL PROCEDURE—Dismissal.  The trial court correctly determined that the notice provision in § 559.715, Fla. Stat., creates a condition precedent that must be satisfied prior to bringing an action to collect on the underlying debt.  However, Appellant satisfied the standard required at this stage in the proceedings by averring that all conditions precedent to bringing suit had been met.  It was therefore inappropriate to grant Appellee’s motion to dismiss.  Reversed and remanded for further proceedings.  CACH, L.L.C. v. Mario Solano, No. 13-AP-05-WS (Fla. 6th Cir. App. Ct. February 19, 2014).

County Civil Court: CIVIL PROCEDURE—Dismissal—Error to dismiss with prejudice and without leave to amend a section 559.72(18), Fla. Stat. (2012), action without stating basis of dismissal when correspondence allegedly violating statute not attached to complaint. Motion to dismiss may not act as substitute for motion for summary judgment. Reversed and remanded for further proceedings. Hermenegildo Huerta v. Bank of America, N.A., Appeal No. 12-000058AP-88A (Fla. 6th Cir. App. Ct. July 9, 2013).

County Small Claims Court: CIVIL PROCEDURE – Dismissal - trial court abused its discretion in dismissing cause of action for failure to prosecute where:  the length of time it took for the trial court to act on a Notice of Intent to Dismiss and the plaintiff’s response, plaintiff was trying to set the case for trial, and the court was actively involved with the plaintiff in offering trial dates.  Dismissal reversed.  Graydon v. Trizis, Appeal No.07-0033AP-88B (Fla. 6th Cir.App.Ct. Dec. 2, 2008).

County Civil Court:  CIVIL – involuntary dismissal – procedural error – prima facie case - trial court’s directed verdict before plaintiff had finished its case in chief and after defendant has presented testimony and evidence was erroneous – plaintiff established prima facie case of damages – the undisputed testimony and evidence established that there had been an automobile accident resulting in damages – trial court erred in weighing the evidence presented and the credibility of the witnesses in granted the directed verdict in favor of the defendant – harmless error for the trial court to not admit repair receipts tendered by the plaintiff – new trial is required – Directed Verdict reversed. Gibbs-Trevena, Inc. v. Marchiafava, Appeal No. 07-0012AP-88A ( Fla. 6th Cir. App. Ct. Dec. 21, 2007)

County Civil Court: CIVIL PROCEDURE - Dismissal - trial court abused its discretion in dismissing cause of action for failure to prosecute pursuant to Rule 1.420(e) - record showed that plaintiff's counsel experienced computer failure as a result of a hurricane and was litigating parallel cases, involving the same parties and similar issue, during the one-year period of no record activity - Dismissal reversed. Verizon Florida, Inc. v. KMC Telecom, Inc., No. 05-0052AP-88A (Fla. 6th Cir. App. Ct. May 18, 2006).

County Civil Court: CIVIL PROCEDURE – Dismissal – trial court erred in dismissing breach of contract action by finding that the credit card assignment had to be attached to the complaint – the Rules of Civil Procedure do not require that an assignment be attached to complaint – Trawick’s explains that an assignment is not a document that is a prerequisite to filing a breach of contract action – Dismissal reversed. PRA, III, LLC v. Little, Appeal No. 05-0005AP-88A (Fla. 6th Cir. App. Ct. July 12, 2005).

County Civil Court: CIVIL PROCEDURE – Dismissal – it was error for trial court to dismiss amended counterclaim filed 31 months after the trial court’s deadline had expired – trial court must make finding of willful noncompliance or deliberate disregard of trial court’s order – Dismissal with Prejudice reversed.  Van Roo v. Laurel Oaks at Countrywoods Condominium Assoc., Inc., No. 03-3582CI-88A (Fla. 6th Cir. App. Ct. March 12, 2004).

Hearing

County Civil Court: CIVIL PROCEDURE – Hearing – Incarcerated plaintiff did not have a right to appear telephonically to prosecute his civil case when the trial court allowed for his personal appearance.  Order affirmed.  David B. Lawson v. Robert Frank, No. 12-AP-000008-ES (Fla. 6th Cir. App. Ct. January 25, 2013)

It was a denial of due process for the trial court to hear and grant a motion the day after the motion was served. There must be a reasonable amount of time between the serving of the motion and the hearing. Morgan v. Chuck Hittle Refinishing, Inc., No. 95-5280 CI (Fla. 6th Cir. Ct. March 14, 1996).

Jurisdiction

County Small Claims Court: CIVIL PROCEDURE – Jurisdiction – On remand from reversal of final judgment for attorney's fees and costs, small claims court entered order that transferred case from Small Claims Division to Civil Division of County Court for the hearing of motion for attorney’s fees and costs.  Trial court had jurisdiction to transfer case based on retention of jurisdiction contained in the final judgment.  Petition denied.  LaSalla v. Pools By George of Pinellas County, Inc., No. 11-000047AP-88A(Fla. 6th Cir. App. Ct. July 19, 2012)

County Civil Court: CIVIL PROCEDURE – Jurisdiction—Small Claims Court— In accordance with precedent from the 4th District Court of Appeal, the small claims court did not have subject matter jurisdiction in an equity action.  When the Second District Court of Appeal and the Florida Supreme Court have not addressed a legal issue facing the Circuit Appellate Court (the Court), the Court is required to follow precedent from another Florida DCA.  Under Florida Rule of Appellate Procedure 9.030(b)(4), the certification of an issue of great public importance to the Second DCA must be included in the final order entered by the County Court; the Court cannot certify a question to the Second DCA involving a county court order.  Reversed and remanded to vacate final judgment for attorney’s fees and costs.  LaSalla v. Pools by George of Pinellas County, Inc., No. 10-000003AP-88A, 10-000021AP-88A (Fla. 6th Cir. App. Ct. June 29, 2011).

County Civil Court:  JURISDICTION – Small Claims Court – return of fees from Clerk of Court – waiver of jurisdiction – Florida Statutes, section 28.241 - Small Claims Court had jurisdiction to rule on plaintiff’s claim for return of $ 50.00, required by the Clerk of Court to have plaintiff’s escrow money returned – defendant did not object to the jurisdiction of the Small Claims Court and waived the issue – Clerk erred in requiring plaintiff, who was the third party buyer in a foreclosure action, to pay $ 50.00 to have the Clerk return his purchase price after sale of property was set aside – foreclosure action should not have been considered “closed” since the third party buyer still had funds held in escrow by the Clerk of Court – trial court’s ruling does not violate section 28.241 which provides exemptions for payment of re-open fee - Final Judgment affirmed.  Burke v. Esposito, Appeal No. 06-0008AP-88A ( Fla. 6th Cir. App. Ct. June 11, 2007).

County Civil Court:  CIVIL PROCEDURE – jurisdiction - common-law certiorari review is proper to review order denying transfer to circuit court – trial court departed from the essential requirements of law in denying plaintiff’s motion to transfer action to circuit court based on the trial court’s own determination of what the plaintiff may be able to recover  - order reversed.  Townsend v. Asset Acceptance Corp., Appeal No. 05-0102AP-88B (Fla. 6th Cir. App. Ct. Dec. 6, 2006). 

County Civil Court: CIVIL PROCEDURE—Jurisdiction:  Trial court had subject matter jurisdiction to determine whether attorney had obligation to pay court reporter for appearance at divorce hearing, notwithstanding that divorce decree ordered attorney’s client to pay half of the reporter’s fee.  Lazaro v. Robert A. Dempster Reporting Co., No. 04-0013AP-88A (Fla. 6th Cir. App. Ct. Jan. 24, 2005).

The lower court did not err in dismissing the complaint with prejudice when the face of the complaint clearly demonstrated that the cause of action was not timely filed.  Compliance with the filing requirement is a condition precedent to maintaining a suit against the state and its agencies or subdivisions.  Jenkins v. City of St. Petersburg Police Dept., No. 01-4498-CI-88A (Fla. 6th Cir. Ct. September 20, 2001).

Although the normal and preferred procedure is for the Petitioner to seek a stay in the lower tribunal, Rule 9.310, Florida Rules of Appellate Procedure, is not intended to limit the constitutional power of the court to issue a stay order after its jurisdiction has been invoked.  The court, sitting in its appellate capacity, has the authority to issue a stay for the purpose of maintaining the status quo during the appellate proceedings.  Granger v. City of Indian Rocks Beach, et. al., No. 01-0636-CI-88A (Fla. 6th Cir. Ct. March 19, 2001).

The trial court improperly dismissed the cause of action for lack of prosecution where neither party had exclusive control over the case and it had been abated pending arbitration. Alves M.D., P.A. v. Windsor Ins. Co., No. 00-4429 CI – 88B (Fla. 6th Cir.Ct. March 16, 2001).

Since neither the Appellant nor the Appellee were parties in the prior circuit court proceedings, the Appellant is not collaterally estopped from asserting the same claims against the Appellee in Small Claims Court.  The identities of the parties must be identical before collateral estoppel can be used defensively.  Swan v. Glenn Rasmussen & Fogarty, P.A., No. 99-8455-CI-88A, (Fla. 6th Cir. Ct. October 12, 2000). 

It was prejudicial error for the County Court to fail to re-litigate all damages as ordered by the Circuit Court’s Order and Opinion and Mandate. The County Court, as the trial court, did not have the power to alter or modify the mandate of the Circuit Court, acting in its appellate capacity, but was limited to obeying the Circuit Court’s Order and Opinion and Mandate. Bernard G. White, et al. v. Kenneth R. Boaz, et al., No. 98-8369-CI-88A (Fla. 6th Cir. Ct. June 29, 2000).

Where appellant’s initial pleading claimed damages in excess of five thousand dollars, the county court had jurisdiction to decide the case.  Therefore, appellant was not entitled to relief under Rule 1.540 claiming a clerical mistake occurred that resulted in his case being assigned to the incorrect court because Rule 1.540 does not provide relief under circumstances where the moving party has merely suffered prejudice as a result of his own action or inaction.  Brown v. Ameri Starr, Inc., et al, No. 99-7722-88A (Fla. 6th Cir. Ct. June 12, 2000).

The trial court erred in granting final judgment while an interlocutory appeal was pending in the appellate court. Commercial Laundries of West Florida, Inc. v. Paragon Group, Inc., No. 94 4910 CI (Fla. 6th Cir. Ct. Feb. 17, 1995).

Jury Trial

County Civil Court:  JURY TRIAL – demand for jury trial untimely as motion was filed beyond 10-day period for filing such a request after the last pleading was served – appellants unable to demonstrate trial court abused its discretion in not granting late demand for jury trial – it was the appellants’ burden to demonstrate that a jury trial would impose neither an injustice upon the appellee nor an unreasonable inconvenience on the trial court – Order affirmed.  Pemberton v. St. Pete Jeep, Inc., No. 03-5002AP-88A (Fla. 6th Cir. App. Ct. April 5, 2004).

Motion for Continuance

County Small Claims Court: CIVIL PROCEDURE — Motion for Continuance – Although the appellate record was insufficient, it is highly unlikely that Appellant could have demonstrated that the trial court abused its discretion in granting Appellee’s motion for continuance. Granting of motion for continuance and motion to stay proceeding affirmed. Jack Petrosky v. Donnie C. Johnson, No. 2010-AP-000012-WS (Fla. 6th Cir. App. Ct. August 9, 2011).

The trial court abused its discretion in denying a motion for continuance where the attorney reasonably believed he had secured a stipulation to continue from opposing counsel, immediately attempted to contact the judge once he was aware opposing counsel would not stipulate, was in Miami on the date of trial, and made an oral motion for continuance while appearing telephonically on the date of trial. Archer v. Mew, No. 95-6201 CI (Fla. 6th Cir. Ct. May 23, 1996).

Negligence

County Civil Court: NEGLIGENCE—Sovereign Immunity. A governmental entity that operates a golfing facility assumes the common law duty to operate the facility safely, just as a private individual is obligated under like circumstances.  The City’s maintenance and operation of the golfing facility is an operational level function which is not protected by sovereign immunity.  Judgment affirmed and motion for attorney’s fees is denied. City of St. Petersburgv. Gordon, No. 13000075AP-88B (Fla. 6th Cir. App. Ct. May 5, 2014).

County Small Claims Court: NEGLIGENCE - Res ipsa loquitur was not an appropriate theory in this case since its application would essentially eliminate the element of causation from the plaintiff’s burden of proof – Appellee could not prove that the instrumentality that caused the injury was in appellant’s exclusive control because the evidence did not establish the cause of the dog’s broken leg - Since the evidence did not show the cause of the injury, appellee did not carry her burden to prove the necessary elements of the negligence claim. Final Judgment reversed. Anthony v. Phillips-Perino, No. 02-2330-CI-88A (Fla. 6th Cir. App. Ct. May 19, 2003).

Pleading

County Civil Court: CIVIL PROCEDURE – Pleading – The trial court properly granted relief when the defendant perpetuated a fraud on the court.  Affirmed.  Balogh Enterprises, Inc. v. Billy E. Humphries, No. 2012-AP-000006-WS, (Fla. 6th Cir.App.Ct. June 24, 2013).

County Civil Court: CIVIL PROCEDURE – Pleading – Appellant waived his right regarding punitive damages, but it appears the trial court did not use the proper standard in making its determination.  The trial court also failed to make the proper findings to support the award of attorney fees and costs.  This cause is remanded.  Nick Karagiannis v. Tommy Fasciolo, No. 2011-AP-000003-WS, (Fla. 6th Cir.App.Ct. September 27, 2012).

County Civil Court:  CIVIL PROCEDURE – Pleading – transfer of jurisdiction to circuit court – trial court erred in transferring jurisdiction of matter to circuit court when claim alleged that damages did not exceed $ 5,000, the jurisdictional limit of small claims court - Petition granted.  Midland Credit Management, Inc. v. Rodvik, Appeal No. 06-0099AP-88A (Fla. 6th Cir. App. Ct. June 11, 2007). 

In a lien foreclosure case a homeowner must plead with specificity and particularity the defense of failure to deliver a contractor's affidavit. Tile Designs of America, Inc. v. Manos, No. 94-6759 CI (Fla. 6th Cir. Ct. Sept. 18, 1995).

Service of Process

County Civil Court: CIVIL PROCEDURE – Service of Process – where there was no service of process on the defendant, trial court correctly denied plaintiff’s motion for default.   For a valid substitute service of process on the Secretary of State, under § 48.181 Fla. Stat., defendant must both (1) conceal his whereabouts, and (2) engage in or carry on a business venture; Florida residency does not substitute for the business activity requirement.  The mere opening of a personal checking account does not constitute engagement of a business venture. – Order Denying Motion for Default affirmed.  Bank of America v. Cokeley, Appeal No.09-0001AP-88A (Fla. 6th Cir.App.Ct. June 19, 2009).

County Civil Court: CIVIL PROCEDURE – Service of Process –  default judgment - pluries summons on Secretary of State was defective – Plaintiff failed to meet statutory requirements of service of process set forth in Florida Statutes, section 48.161 – Defendant did not execute a return receipt and record was void of evidence showing Defendant intentionally failed or refused service – Plaintiff also failed to file its Affidavit of Service of Process on or before the return of process on Secretary of State – Default Final Judgment reversed. Cooper v. F.A. Management Solutions, Inc., Appeal No. 05-0093AP-88B (Fla. 6th Cir. App. Ct. August 7, 2006). 

County Civil Court: CIVIL PROCEDURE – Service of Process – even without a transcript, record shows trial court erred in denying appellant’s relief from judgment – it is undisputed that appellant was not noticed with appellee’s motions or notices of hearing – judgment entered without proper notice is void - Final Judgment reversed.  Dodd v. Midland Credit Management, Inc., No. 03-5040AP-88B (Fla. 6th Cir. App. Ct. July 14, 2004). 

Service by publication is permissible only when personal service is impossible. A judgment entered without valid service of process is void and may be collaterally attacked at anytime. When the condo association knew the condo owner's actual residence in Canada, but failed to use personal service and used service by publication, the judgment was invalid. The service of process law applies to nonresident Canadian owners. Koins v. Sea Club of Indian Shores Condo. Assoc., Inc., No. 95-5260 CI (Fla. 6th Cir. Ct. April 22, 1996).

Summary Judgment

County Civil Court: CIVIL PROCEDURE—Summary Judgment—Entry of final summary judgment with discovery pending not abuse of discretion when non-moving party failed to act diligently to pursue discovery.  Trial court entitled to believe real purpose of late-filed discovery is merely for delay – Order affirmed.  Janet Dean v. Citibank (South Dakota) d/b/a Citi Visa Card, Appeal No. 12-000054AP-88A (Fla. 6th Cir. App. Ct. November 22, 2013).

County Civil Court: CIVIL PROCEDURE—Summary Judgment—Upon de novo review Court concludes that trial court erred when it entered Final Summary Judgment for Respondent based on affidavit that is insufficient as a matter of law.  Affiant did not swear or affirm that she had personal knowledge of specific facts and that statements made therein are true and correct.  Summary Final Judgment reversed and case remanded for further proceedings.  Tom Brown v. Neighborhood F Homeowners' Association, Inc., No. 13-000016AP-88A(Fla. 6th Cir. App. Ct. August 19, 2013).

County Civil Court: CIVIL PROCEDURE – The judgment on its face demonstrated an erroneous application of law since the measure of damages should have been the value of, or amount paid for, what was represented less the actual value of what was received.  Reversed and remanded.  Brien v. Wilson, Case No. 12-AP-000001-ES (Fla. 6th Cir. App. Ct. March 18, 2013). 

County Civil Court: CIVIL PROCEDURE – Summary Judgment – Since Appellant was prevailing party for purposes of attorney fees, trial court erred when it refused to award mandatory fees for successful defense and prosecution of claims in arbitration.  Trial court’s order reversed and cause remanded. Motts Contracting Servicing, Inc. v. Snell, et al., No. 2012-AP-4-ES (Fla. 6th Cir. App. Ct. January 22, 2013).

County Civil Court: CIVIL PROCEDURE – Summary Judgment – While trial court correctly found that amounts paid over safe harbor provisions were gratuitous, cause remanded for trial court to address each affirmative defense.  Ocean Harbor Casualty Ins. Co. v. Medical Specialists of Tampa Bay, et al., No. 2011-AP-9-WS (Fla. 6th Cir. App. Ct. January 22, 2013).

County Small Claims Court: CIVIL PROCEDURE – Summary judgment. Because summary judgment was proper on the dispositive account stated claim, it was immaterial that summary judgment may not have been proper on the other counts in the complaint. Judgment affirmed. Seoane v. Barclays Bank Delaware, No. 11-000046AP-88B (Fla. 6th Cir.App.Ct. September 24, 2012).

County Civil Court: CIVIL PROCEDURE – Summary Judgment. Trial court erred in entering final summary judgment for city against plaintiff whose property was damaged by golf balls from city owned driving range. Genuine issues of material fact remained. Final judgment reversed and remanded for further proceedings. Gordon v. City of St. Petersburg, Florida, No. 11000036AP-88B (Fla. 6th Cir. App. Ct. May 24, 2012).

County Civil Court: CIVIL PROCEDURE – Summary judgment – The trial court improperly granted Appellee’s motion for final summary judgment as Appellant was not notified of the statute of limitation issue.  Reversed.  James Balay v. Capital One Bank, No.10-AP-000001-ES, (Fla. 6th Cir.App.Ct. March 9, 2011).

County Civil Court: CIVIL PROCEDURE—Summary Judgment—trial court erred in entering final summary judgment for insurance company finding as a matter of law that chiropractic physician properly paid under AMA Physician's Current Procedural Terminology code (CPT) 76120 rather than CPT code 76499 for videofluoroscopy procedures—genuine issue of material fact remains as to which code is applicable—Final judgment reversed and remanded for further proceedings.  Nu-Best Whiplash Injury Center, Inc. a/a/o Jan Avery, Gale Bauer, Lisa Colon, Dorian Domingue, Robert McAnelly, and Catalina Thomas v. State Farm Mutual Automobile Insurance Company,No. 08-000051AP-88A(Fla. 6th Cir. App. Ct. Oct. 4, 2010).

County Civil Court: CIVIL PROCEDURE – Summary judgment – while prices charged to patients were not in dispute, summary judgment was not appropriate where the issue of whether the plaintiff violated his own customary billing practices was in need of resolution by the trier of fact.  Summary judgment reversed.  Leverone v. Progressive Select Insurance Co., Appeal No.07-0031AP-88B (Fla. 6th Cir.App.Ct. Aug. 12, 2008).

County Civil Court: CIVIL PROCEDURE – Summary judgment – where the plaintiff proved breach of contract but no actual damages, trial court erred in finding that nominal damages or court-ordered performance were not authorized.  Summary judgment reversed.  Desimone v. Clearview Oaks Management, Inc., Appeal No.07-0041AP-88B (Fla. 6th Cir.App.Ct. Aug. 12, 2008).

County Civil Court: CIVIL PROCEDURE – Summary Judgment – trial court erred in entering summary judgment in favor of insured after insurance policy had been cancelled for insured’s failure to provide a copy of vehicle registration to insurer – undisputed that insured received notice of cancellation, insured never received notice of reinstatement, nor did agent represent to insured that policy had been reinstated – under facts presented, final judgment must be entered in favor of insurer - Final Judgment reversed. Florida Automobile Joint Underwriting Assoc. v. Balas, Appeal No. 05-0041AP-88B ( Fla. 6th Cir. App. Ct. June 30, 2006)

County Civil Court:  CIVIL PROCEDURE – Summary Judgment – common-law certiorari relief available to review alleged discovery errors – trial court erred in granting insurer partial summary judgment for insured’s failure to respond to request for additional documentation pursuant to Florida Statutes, section 627.736(6)(b) – the insurer’s general request to “please submit additional documentation” created a fact issue as to whether the request was specific enough to put insured on notice as to what additional documentation that was needed  – Petition granted.  Stein v. Progressive Ins. Co., Appeal No. 05-0064AP-88A (Fla. 6th Cir. App. Ct. May 30, 2006).

County Civil Court:  CIVIL PROCEDURE – Summary Judgment – domesticating foreign judgment – Oklahoma judgment is entitled to full faith and credit when Appellant did not contest or otherwise appeal the Oklahoma judgment after making an appearance in Oklahoma proceedings – Appellant failed to meet burden that trial court committed error  – summary judgment affirmed.  Swan v. First American Transportation Title Ins. Co., Appeal No. 04-0094AP-88A (Fla. 6th Cir. App. Ct. March 7, 2006).

In reviewing the record de novo and in considering the evidence in the light most favorable to Ms. Card, the Court finds that Providian has failed to prove conclusively the nonexistence of any genuine issue of material fact.  Specifically, the record raises a doubt as to what sum of money, if any, Ms. Card owes Providian.  Further, the Court finds that Ms. Card’s failure to raise any affirmative defenses in her Response does not warrant the entry of summary judgment.  Although case law is clear that affirmative defenses cannot be alleged by affidavit in opposition to a motion for summary judgment, Ms. Card’s affidavit did not raise affirmative defenses but rather simply denied the facts contained in Providian’s complaint.  Card v. Providian National Bank, No. 01-3923-CI-88A (Fla. 6th Cir. Ct. April 25, 2002).

An insurance company does not breach its contract, and the insured suffers no damages, when the insurer pays the amount it determines to be reasonable for a submitted expense and further agrees to defend and indemnify the insured if he or she is pursued for any remaining balance. Griffith v. State Farm Mutual Automobile Insurance Company, No.  00-4430-CI-88A (Fla. 6th Cir. Ct. January 31, 2001).

As the Appellant was not a licensed contractor in the State of Florida, as a matter of law he could not prevail in his cause of action against the Appellees.  The parties did not enter into an enforceable settlement agreement since they did not mutually agree on every essential element. Darrey v. Loy, No. 00-1224-CI-88A (Fla. 6th Cir. Ct. November 30, 2000).

It is the role of the appellate court, in reviewing a summary judgment, to view the facts in the light most favorable to the party against whom judgment is granted.  The Appellant could not sue her insurance company for past bills once an assignment had been accepted by her health care provider.  Therefore, the Appellant lacked standing to bring her suit. Romano v. Continental Insurance Company, et al., No. 99-4424-CI-88A (Fla. 6th Cir. Ct. August 25, 2000).

It was error to grant summary judgment when the pleadings, exhibits and affidavits set forth a genuine issue of material fact. Southeast Pet Supply, Inc. v. Reid, No. 96-1647 CI (Fla. 6th Cir. Ct. Sept. 4, 1996).

Venue

County Civil Court: CIVIL PROCEDURE – Venue – Section 47.051, Fla. Stat. (2010), governs actions against corporations.  In interlocutory appeal, Defendant domestic corporation challenged non-final order denying motion to transfer venue.  Plaintiff chose to sue corporation in county where cause of action accrued for failure to pay wages.  However, breach of employment contract by failure to issue paycheck occurred in Palm Beach County where corporate office is located, not in Pinellas County where employee was to receive paycheck.  Order reversed and remanded with direction to transfer the case.  Atlantic Legal Group, P.A., v. Feher,Appeal No. 10-000051AP-88A(Fla. 6th Cir. App. Ct. February 22, 2011).

County Civil Court:  CIVIL PROCEDURE – venue – prior course of dealings - trial court erred in transferring venue without  considering the parties’ prior course of dealings – record showed that parties had entered into more than seventy rental agreements establishing that venue would be in Pinellas County for any action arising out of the agreements - order reversed.  Rental Service Corporation, USA, Inc. v. Guettler & Sons Construction, Inc., Appeal No. 05-0101AP-88B (Fla. 6th Cir. App. Ct. Nov. 29, 2006).

A defendant domestic corporation could not be sued in an employment contract case in Pinellas County because there is no property in question, its sole place of business is in Hernando County, and the cause of action accrued in Hernando County. Southern Truss of Tampa, Inc. v. Hively, No. 95-4816 CI (Fla. 6th Cir. Ct. June 20, 1996).

The alleged breach of an employment contract occurred when the employer corporation did not pay its employee. Normally, the breach occurs where the payee resides, however, the corporation's unopposed affidavit states all payments were made in Hernando County, therefore, venue was proper in Hernando County. Id.

County Civil Court: CIVIL PROCEDURE – Venue - trial court did not err in granting Royal Caribbean’s Motion for Change of Venue and transferring circuit court action to Miami-Dade County – forum selection clause in parties’ contract is enforceable and encompasses Plaintiffs’ cause of action filed under the Florida Deceptive and Unfair Trade Practices Act – Order affirmed.  Russo v. Royal Caribbean Cruises, Appeal No. 05-0058AP-88A (Fla. 6th Cir. App. Ct. March 15, 2006). 


CONSTITUTIONAL LAW

County Criminal Court: CONSTITUTIONAL LAW – Section 823.11, Fla. Stat., which prohibits leaving, storing, or abandoning derelict vessels, is not unconstitutionally vague; it is specific enough to provide adequate warning of the proscribed conduct.  Judgment and sentence affirmed.  Pilette v. State, No. CRC10-00015APANO (Fla. 6th Cir. App. Ct. February 8, 2011).

County Criminal Court: CONSTITUTIONAL LAW – Event permit issued by City of St. Petersburg, which restricted the size of hand-held signs to the area of the torso of the person carrying the sign at the event, did not place impermissible restriction on exercise of First Amendment rights. Order denying motion to dismiss affirmed; remanded for sentencing. William G. Ball v. State, CRC08-00065APANO; William Lee Holt v. State, CRC08-00066APANO; Joshua Pettigrew v. State, CRC08-00068APANO; Douglas C. Pitts v. State, CRC08-00068APANO; Francis N. Primavera v. State, CRC08-00069APANO (Fla. 6th Cir. App. Ct. December 21, 2009).

County Criminal Court: CONSTITUTIONAL LAW- Under the intermediate scrutiny test for content neutral regulations, the ordinance violations “for having a free speech sign on private property that exceeds 6 square feet and is higher than 8 feet” do not restrict speech substantially more than necessary and are constitutional.  Order denying motion to dismiss affirmed.  James Shanklin v. State, CRC07-00083APANO (Fla. 6th Cir. App. Ct. March 12, 2009).

County Criminal Court:  CONSTITUTIONAL LAW---homeless persons are not a “suspect class” and seeking a place to sleep at night within a public park is a not a “fundamental right” protected by the U.S. Const.  Rational basis test was the correct standard to determine constitutionality of city ordinance that prohibited entering or remaining in a city park during certain hours of the day.  Order affirmed.  Lockett v. State, No. CRC 07-00075APANO (Fla. 6th Cir. App. Ct. August 21, 2008)

County Criminal Court : CONSTITUTIONAL LAW - §6-2 of the Pinellas County Code is not unconstitutionally vague; §42-139 is not unconstitutional for making an operator of an adult use business criminally responsible for the acts of others because §42-139 was amended to eliminate any potential prison sentence. Judgments and sentences affirmed. Foxhill v. State, No. CRC 03-21 APANO ( Fla. 6th Cir.App.Ct. July 30, 2004).

Trial court properly found that the defendant’s nudity at a public beach was not combined with a mode of expression which itself was entitled to First Amendment protection.  Although the court acknowledged that the defendant and his group had placed signs in the vicinity of their gathering and had arranged for a plane to tow a banner, the court concluded that the defendant was not engaged in any activities even remotely resembling ‘protest’ as that term is commonly understood.  Therefore, there was no constitutional infringement upon the defendant’s first amendment rights by the application and enforcement of Florida’s disorderly conduct statute.  Palm v. State, No. CRC 99-21087 CFANO (Fla. 6th Cir. Ct. February 13, 2001).

St.Pete Beach's noise ordinance section 12-32 is not unconstitutional. The fact that the ordinance has a scientific standard does not mean reasonable people have to guess at the meaning of the ordinance. Section 12-36(a) that prohibits noise which annoys or disturbs people, however, is unconstitutionally vague. State v. Costanza, No. CRC 93-7357 CFANO (Fla. 6th Cir. Ct. March 17, 1995).

Pinellas County Ordinance 77-5, Sec. 5(A), which provides that people may enter restricted areas of airfields, is not unconstitutionally vague. Bruckner v. State, No. CRC 94-16768 CFANO (Fla. 6th Cir. Ct. Nov. 30, 1995).

If petitioners believe a statute to be unconstitutional they must bring a declaratory action rather than attempt to raise the issue in a purely certiorari action. Menconi v. Florida Dept. of Hghwy. Safety and Motor Vehicles, No. 95-7307 CI (Fla. 6th Cir. Ct. Jan. 2, 1996).

If a matter can be resolved without ruling on the constitutionality of an ordinance, trial courts commit error when they proceed to rule on the constitutional issue. State v. King, No. CRC 95 19559 CFANO (Fla. 6th Cir. Ct. Nov. 19, 1996).


CONSUMER LAW

County Small Claims Court:  CONSUMER LAW– Animals-even in the absence of a transcript, case must be reversed where applicable statutes are not satisfied; statutes required  that there be a certification that the animal was “unfit for purchase due to a congenital or hereditary disorder” and that the buyer afford the seller an opportunity to have an examination by a licensed veterinarian of the dealer’s choosing. Final Judgment reversed. Gardner v. Bray, 512007AP10ES ( Fla. 6th Cir. App. Ct. August 25, 2008).

Since there was no recorded testimony or evidentiary rulings in the case and the decision of the trial court was not fundamentally erroneous on its face, the Court was required to affirm the trial court's decision that the parties agreed that the $450 payment would satisfy the judgment. Ronald Lohr, Inc., v. Sperling, No. 99-8181-88B (Fla. 6th Cir. Ct. Nov. 21, 2000).

It was error for the trial court to enter Judgment for the plaintiff to recover against the Garnishee, NationsBank, a debt due to a non-party and not due to the defendant, Angel’s Painting, Inc..  It was error for the trial court to enter the Final Judgment in Garnishment before conducting an evidentiary hearing on Richard Niger’s claim, filed pursuant to Florida Statutes, section 77.16, to his interest in the garnished checking account. Niger v. Ikon Office Solutions, Inc., No. 00- 0530-CI-88A (Fla. 6th Cir. Ct. October 27, 2000).

Florida Consumer Collection Practices Act

County Civil Court: CONSUMER LAW—Florida Consumer Collection Practices Act—Trial court did not err in finding that, as a matter of law, the communication at issue did not violate §559.72(7), Fla. Stat.  Trial court did not err in finding that because there is not a private right of action for a violation of §559.715, Fla. Stat., consumer could not state a claim for a violation of the FCCPA based on that section - Order Affirmed.  Ward v. D.A.N. Joint Venture, III, LP, et al. No. 12-000045AP-88B (Fla. 6th Cir. App. Ct. September 20, 2013).

County Civil Court: CONSUMER LAW--Florida Consumer Collection Protections Act Unlike Federal Fair Debt Collections Practices Act, section 559.72, Fla. Stat. (2010), does not have "cease and desist" letter provision.  Rather, court to consider if communication by creditor with such frequency as to harass debtor or family.  Trial court correctly found as matter of law that one letter from creditor is not harassment and debtor's claim cannot be proven.  Summary Judgment affirmed.  George Pantazis v. RJM Acquisitions Funding, LLC, Appeal No. 12-000025AP-88A (Fla. 6th Cir. App. Ct. May 16, 2013).

County Small Claims Court:  CONSUMER LAW – Florida Consumer Collection Practices Act – trial court did not error in granting motion for summary judgment-no genuine issues of material fact, only issue was a legal issue of whether or not defendant’s actions qualified as an “attempt to collect a debt”-  Trial court did not error in finding defendant’s actions did not qualify as an attempt to collect a debt- there was competent substantial evidence of record to support the trial court’s findings that the plaintiff’s action failed to raise a justiciable issue of law and fact- Plaintiff waived the issue of discovery  since plaintiff did not file a motion for continuance pursuant to Florida Rule of Civil Procedure 1.510(f).  Order Affirmed. Dangond v. Citibank, N.A., No. 512005AP17WS (Fla. 6th Cir. App. Ct. July 24, 2006.   

County Small Claims Court:  CONSUMER LAW – Florida Consumer Collection Practices Act – trial court erred in granting defendant’s motion for summary judgment - transcript reveals there remained several unanswered questions of fact – defendant is a “debt collector” as defined by the FCCPA – “debt collector” is not restricted to collection agencies, but applies to anyone attempting to collect a consumer claim unlawfully – Summary Judgment reversed.  Jackson v. Wells Fargo Home Mortgage, Inc., No. 03-5019AP-88A ( Fla. 6th Cir. App. Ct. August 9, 2004). 

County Small Claims Court:  CONSUMER LAW – Florida Consumer Collection Practices Act – trial court erred in going outside four corners of complaint in considering defendant’s motion to dismiss – plaintiff sufficiently pled FCCPA cause of action to withstand motion to dismiss – plaintiff is “debtor” or “consumer” and defendant is “person” or “debt collector” within meaning of FCCPA – plaintiff alleged injuries or damages and knowledge or intent by debt collector  – plaintiff cannot maintain claim for emotional distress damages – proposal for settlement pursuant to § 768.79 is not applicable to claims filed under the FCCPA – plaintiff can plead attorney’s fees from previous case as damages - Order Granting Dismissal reversed.  Townsend v. Asset Acceptance Corp., No. 03-1921CI-88A (Fla. 6th Cir. App. Ct. August 6, 2004). 

Interpleader

Whether or not the interpleader had an interest in the funds was a factual issue that should have precluded the granting of summary judgment. Zappia v. Rubaii, No. 94-7012 CI (Fla. 6th Cir. Ct. Dec. 14, 1995).

Lien Foreclosure

Summary Judgment and Summary Final Judgment of Foreclosure was properly entered against appellant condominium owner.  The court found no material facts in dispute with regard to the necessity of the new roof in protecting the common element.  As such, the roof replacement was within appellee’s authority and the appellant was properly assessed. Although appellant tendered a payment, it was insufficient to satisfy appellee’s lien at that time.  Azar v. Sanseair, Inc., No. 99-4704-CI (Fla. 6th Cir. Ct. July 25, 2000).

In a lien foreclosure case a homeowner must plead with specificity and particularity the defense of failure to deliver a contractor's affidavit. Tile Designs of America, Inc. v. Manos, No. 94-6759 CI (Fla. 6th Cir. Ct. Sept. 18, 1995).

Secured Interest

The amount received at a dealers-only auction is not the fair market value, therefore, the trial court was correct to find the sale was commercially unreasonable. The secured party then failed to carry its burden to show the fair market value of the truck was less than the amount of the debt. Barnett Recovery Corp. v. Johannesson, No. 95-6952 CI (Fla. 6th Cir. Ct. June 4, 1996).

A secured creditor is not bound by the valuation of the collateral as stated in the secured creditor's affidavit in support of its motion to lift stay in bankruptcy court. Id.

A secured creditor's entitlement to a deficiency judgment depends upon the commercial reasonableness of the sale, which in turn establishes the fair market value of the collateral. Id.

If it is determined that collateral was disposed of in a commercially unreasonable manner the presumption is the fair market value at the time of repossession equals the entire amount of debt it secured. The secured party then bears the burden of proving the fair market value is less than the debt. Id.

Stock Certificates

Although the law permits a trial court to authorize a corporation to reissue stock certificates and deliver them to the sheriff for execution if the debtor does not have possession of the original certificates or refuses to disclose their location, in this case the trial court merely ordered the debtor to turn over the stock certificates if he had them or if someone in his control had them. Amadio v. First Union National Bank of Florida, No. 94-6383 CI (Fla. 6th Cir. Ct. Sept. 1, 1995).


CONTRACTS

County Civil Court: CONTRACTS – Summary Judgment—Insurance’s policy provision excluding coverage for theft from an unprotected car lot was enforceable.  The policy exclusion was clear and unambiguous, did not completely eviscerate coverage, and did not contradict other provisions of the policy.  Judgment affirmed.  Shutt Enterprises, Inc. v. Century Surety Company, No. 13000043AP-88B (Fla. 6th Cir. App. Ct. May 5, 2014).

County Civil Court: CONTRACTS – While it appears that there was an implied partial waiver of a written estimate, the trial court made insufficient factual findings to allow proper appellate review.  Case remanded.  C. De’s Truck and Auto, Inc., et al. v. Phillip Slone, No. 2011-AP-000004-ES (Fla. 6th Cir. App. Ct. June 18, 2012).

County Civil Court: CONTRACTS – An implied covenant of good faith exists in all contractual relationships, but relief should not have been granted when it was not sought in the pleadings.  Affirmed in part, Reversed in part.  Philip Wetter v. Sonia Ortiz, No. 2010-AP-000017-ES, (Fla. 6th Cir.App.Ct. June 20, 2011).

County Civil Court: CONTRACTS – trial court’s interpretation of a contract is reviewed de novo – The appellant has the burden to overcome the presumption of correctness attached to the trial court’s finding that the defendant waived an affirmative defense of statute of limitations.  Appellant did not overcome that burden where the record contains nothing to refute the trial court’s finding of waiver.  – Amended Final Judgment affirmed.  Cooper v. F.A. Management Solutions, Inc., Appeal No.07-0022AP-88A (Fla. 6th Cir.App.Ct. May 5, 2008).

County Civil Court:  CONTRACTS – garnishment of wages – claim of exemption – trial court did not err in denying Appellant’s claim of exemption – who “owns” account funds is a question of fact for the trial court to resolve – no indisputable evidence presented by the Appellant that account funds belong to third party – no transcript of the hearing supports affirmance of the trial court’s ruling - Order affirmed.  Labua v. American Express Centurian Bank, Appeal No. 06-0085AP-88A (Fla. 6th Cir. App. Ct. June 11, 2007). 

County Civil Court:  CONTRACTS – email correspondence – jury trial – presumption of correctness – informal correspondence between employee and Director of Employee Relations in the form of emails did not establish a formal binding contract nor alter terms of severance policy – trial court was charged with resolving conflicting evidence – Appellant failed to overcome presumption of correctness of trial court’s ruling – Final Judgment affirmed.  Ermann v. Spheris, Inc., Appeal No. 06-0061AP-88A (Fla. 6th Cir. App. Ct. June 11, 2007). 

County Civil Court:  CONTRACTS – summary judgment – filing of pro se pleadings when represented by counsel – claim for account stated – litigant represented by counsel had no authority to file pleadings and documents on her on behalf – trial court had authority to strike such pleadings – record irrefutably established claim for account stated – there were no opposing affidavits filed by Defendant such that there were no disputed issues of material fact - Final Summary Judgment affirmed.  Schumacher v. Citibank (South Dakota), N.A., Appeal No. 06-0028AP-88B (Fla. 6th Cir. App. Ct. Feb. 27, 2007). 

County Civil Court:  CONTRACTS – garnishment of wages – debtor can waive statutory exemptions to garnishment of wages – trial court erred in not recognizing parties’ contract in which the debtor agreed to waive any garnishment defenses under Florida Statutes, section 222.11 - order reversed.  Portfolio Acquisitions, LLC v. Deardorff, Appeal No. 06-0011AP-88B (Fla. 6th Cir. App. Ct. Nov. 20, 2006). 

County Civil Court:  CONTRACTS – garnishment of wages – debtor can waive statutory exemptions to garnishment of wages – trial court erred in not recognizing parties’ contract in which the debtor agreed to waive any garnishment defenses under Florida Statutes, section 222.11 - order reversed.  NCO Financial Systems, Inc. v. McClintock, Appeal No. 06-0044AP-88B (Fla. 6th Cir. App. Ct. Nov. 20, 2006).

County Civil Court:  CONTRACTS – garnishment of wages – debtor can waive statutory exemptions to garnishment of wages – trial court erred in not recognizing parties’ contract in which the debtor agreed to waive any garnishment defenses under Florida Statutes, section 222.11 - order reversed.  MRC Receivables Corp. v. Klatz, Appeal No. 06-0025AP-88A (Fla. 6th Cir. App. Ct. Nov. 3, 2006). 

County Civil Court: CONTRACTS – contract that is clear, complete, and unambiguous does not require judicial construction – trial court did not err in awarding damages to Plaintiff/client when Defendant/accountant failed to inform Plaintiff what additional information was needed to complete audit – any ambiguities in the contract must be construed against the Defendant who drafted the contract - Final Judgment affirmed.  Barbara Clark & Co.  v. Sharon Wilson, Appeal No. 05-0055AP-88B ( Fla. 6th Cir. App. Ct. August 7, 2006)

County Civil Court: CONTRACTS – contract that is clear, complete, and unambiguous does not require judicial construction – trial court did not err in entering final judgment in favor of Tenant as Landlord had failed to follow express terms of the parties’ contract for the payment of maintenance charges – 3-day demand was defective since it requested maintenance charges for years 1998 through 2002, not just 2002, in contradiction to the terms of parties’ contract – correct amount must be set forth in 3-day demand - Final Judgment affirmed. E & A, Inc., d/b/a Bay Bazaar v. Sharaka, d/b/a Diamond Gifts, Appeal No. 05-0063AP-88B ( Fla. 6th Cir. App. Ct. August 7, 2006)

County Civil Court: CONTRACTS - record on appeal - without a transcript, appellant unable to demonstrate trial court committed reversible error in awarding consumer $ 1,900.00 to replace her laptop computer that was stolen from computer business - Final Judgment affirmed. Integrated Technology Solutions of Tampa Bay, Inc. v. Goldfarb, No. 05-0044AP-88A (Fla. 6th Cir. App. Ct. May 18, 2006).

County Civil Court: CONTRACTS – summary judgment – work contracted by contractor outside the scope of its licenses rendered entire contract unenforceable pursuant to Florida Statutes, § 489.128 – no authority that a contract is severable under § 489.128 for the purpose of enforcing only those parts that are performed under a valid license or that a contractor can collect on its contract by reducing its claim by the amount of work which exceeded the scope of its license  - Summary Judgment affirmed.  AAA Services of Central Florida, Inc. v. Keith, No. 05-0011AP-88A (Fla. 6th Cir. App. Ct. Dec. 16, 2005).

County Civil Court: CONTRATCS – summary judgment - trial court erred in granting summary judgment in favor of realtor who represented seller – a factual dispute remains as to the realtor’s knowledge of information adversely affecting the value of the property and the adequacy of the disclosure of such adverse information – summary judgment reversed. Lipp v. Ely, Appeal No. 04-0071AP-88B (Fla. 6th Cir. App. Ct. Nov. 9, 2005).

County Civil Court: CONTRACTS – summary judgment – trial court did not err in granting summary judgment for defendant sua sponte – Small Claims Rule 7.135 permits a trial court to summarily dispose of a case if there is no triable issue – plaintiff stated he intended to perform “consensual cannibalism” – a contract against public policy is unenforceable - Summary Judgment affirmed. Tourtelot v. Koshick, Appeal No. 04-0062AP-88A (Fla. 6th Cir. App. Ct. July 12, 2005).

County Civil Court: CONTRACTS – due to confusion and inconsistency in final judgments cause must be remanded – there should be one final judgment – Tiger’s Counterclaim sufficiently stated a cause of action to enforce claim on bond and attorney’s fees – Florida Statutes, §§ 559.917(1)(b) and 559.921(1), leaves award of fees in trial court’s discretion - Final Judgments reversed. Tiger Enterprises of Tyrone, Inc. v. Teresa Dukes, No. 03-5061AP-88A (Fla. 6th Cir. App. Ct. Feb. 1, 2005). 

County Civil Court: CONTRACTS – summary judgment is reviewed de novo – without a transcript appellant is unable to demonstrate that fact issues were ever brought before the trial court – terms of cardholder agreement expressly provides that appellant is responsible for all charges made in conjunction with the account, regardless of who had possession of the credit card or the issuance of additional cards under the account – Final Summary Judgment affirmed. Hoffman v. American Express Travel, Appeal No. 03-5023AP-88A (Fla. 6th Cir. App. Ct. Dec. 21, 2004).

County Civil Court: CONTRACTS – fraud in the inducement – to prevail on claim for fraud in the inducement, plaintiff must show his/her reliance on statement is justified – cause must be remanded to trial court to determine, based on record already developed, whether plaintiff justifiably relied on defendant’s promises to pay her back for each alleged loan  - Final Judgment reversed and remanded.  James v. Brinkerhoff, No. 03-0217AP-88B (Fla. 6th Cir. App. Ct. July 29, 2004). 

County Civil Court: CONTRACTS – appellant is unable to demonstrate that the trial court abused its discretion in refusing to hear counterclaim – there is nothing in the record to show that appellant attempted to assert a counterclaim, either orally or in writing – as there is no transcript of the final hearing, the Court must accept the trial court’s factual findings - Final Judgment affirmed.  Lonsberry v. Walling, No. 03-5010AP-88A (Fla. 6th Cir. App. Ct. March 25, 2004).

A guaranty executed subsequent to the principal contract and not a part of the same transaction must be supported by new consideration.  Forbearance of collection of a debt in and of itself can be consideration.  It is not necessary that the guaranty be executed at the same time as the note. Hirschauer v. Benchmark Ins. Co., No.  99-1272-CI-88A (Fla. 6th Cir. Ct. September 27, 2000).

Trial judge's interpretation of contractual provision was error. A "fully executed proposal" is not a fully executed contract. The letter containing several proposals sufficed as a "fully executed proposal." American Capitol Group I Assets Limited Partnership v. Sun Services of America, Inc., No. 94-5763 CI (Fla. 6th Cir. Ct. Aug. 3, 1995).

The mechanic's filing of a separate action against the car owner was sufficient to meet the requirement of Florida Statute 559.917 that a claim be made on the bond posted by the car owner. Kennedy v. Quality Engine Shop, Inc., No. CRC 94-517 CFANO (Fla. 6th Cir. Ct. Aug. 3, 1995).

Law firm which subpoenaed an expert witness to a deposition has an implied contract to pay the expert reasonable fees. Yanchuck, Berman & Kasaris, P.A. v. Jeserski, No. 95-1870 CI (Fla. 6th Cir. Ct. June 28, 1996).


COUNTY ORDINANCE

Adult Entertainment

County Criminal Court:  COUNTY ORDINANCE – Adult Entertainment - CRIMINAL LAW – Sentencing – Pinellas County Code, Section 42-144(a)(3) and Section 6-2(c)(3) were not unconstitutionally vague – term “cleavage of the nates of the human buttocks” is sufficiently clear – trial court did not err in denying motion for judgment of acquittal – state presented sufficient evidence to sustain motion - trial court did err by imposing adjudication of guilty, apparently for the sole reason that defendant exercised her right to go to trial -- Order affirmed, in part, and reversed, in part.  McComish v. State, No. 03-00020 APANO (Fla. 6th Cir. App. Ct. July 9, 2004).

Animal Control

County Civil Court: COUNTY ORDINANCE – Animal Control – constitutionality of Code – interpretation of Code - challenge to constitutionality of Code must be commenced as an original proceeding in circuit court – County’s interpretation of two different Code provisions regarding the County’s handling of “dangerous animals” was not inherently inconsistent nor arbitrarily applied - judgment affirmed. O’Keefe v. Pinellas County Animal Services, Appeal No. 06-0038AP-88B (Fla. 6th Cir. App. Ct. Jan. 9, 2007). 

County Civil Court: COUNTY ORDINANCE – animal control – standard of review of decision of Animal Control Authority that has been previously appealed to county court is whether Appellant was afforded procedural due process and whether the essential requirements of law were followed – Appellant failed to cite to any record evidence that he was denied due process or that the trial court failed to follow the essential requirements of law – whether there was competent substantial evidence to support trial court’s finding that Appellant’s dog is a “dangerous animal” is beyond this Court’s scope of review – Order affirmed. Hadscock v. Pinellas County Animal Services, No. 05-0001AP-88A (Fla. 6th Cir. App. Ct. Jan. 27, 2006). 


CRIMINAL LAW

Bingo

Under Pinellas County Ordinance 94-42 advertising a $300 minimum drawing to those in attendance at a bingo game does not subject a person or entity to criminal liability, although it may subject them to the loss of a license to operate a bingo game. State v. King, No. CRC 95-19559 CFANO (Fla. 6th Cir. Ct. Nov. 19, 1996).

Breath/Urine/Blood Test

County Criminal Court: CRIMINAL LAW – Breath/Urine/Blood Test – Trial court did not err in granting motion to suppress evidence concerning urinalysis in DUI case; it was not shown that the urine sample provided was the product of an intelligent, voluntary, and knowing decision on behalf of Appellee, rather than acquiescence to police authority.  Appellee initially agreed to provide urine sample, but sample was ultimately obtained from catheterization performed by hospital staff, over Appellee’s complaints - Order granting motion to suppress affirmed, with dissenting opinion.  State v. Bottie, No. CRC10-00038APANO (Fla. 6th Cir. App. Ct. February 8, 2011).

County Criminal Court: CRIMINAL LAW --- Breath/Urine/Blood Test ---- Finding that defendant did not voluntarily consent to blood test is not conclusive where the State might be able to demonstrate compliance with implied consent statute. Order granting motion to suppress reversed. State v. Nosal, No. CRC 07-41 APANO (Fla. 6th Cir. App. Ct. April 24, 2008).

County Criminal Court: CRIMINAL LAW --- Breath/Urine/Blood Test --- Blood test results should have been excluded where the State failed to present evidence about who took the test and if they were statutorily authorized to take test. Judgment and sentence reversed. Soares v. State, No. CRC 06-84 APANO ( Fla. 6th Cir. App. Ct. April 17, 2008).

County Criminal Court: CRIMINAL LAW --- Breath/Urine/Blood Test --- Blood draw was proper where police had probable cause to believe defendant DUI; defendant appeared at hospital for treatment; and breath test was impractical because defendant tied to a stretcher and wearing neck brace when police saw him. Judgment and sentence affirmed. Ryan v. State, No. CRC 06-70 APANO, (Fla. 6th Cir. App. Ct. April 9, 2008).

County Criminal Court: CRIMINAL LAW – Breath/Blood/Urine Test --- Blood test was proper under implied consent law where defendant who appeared to be under the influence appeared for treatment at a hospital, and there was evidence that a breath test was impractical or impossible. Under these circumstances voluntariness of consent is not at issue. Judgment and sentence affirmed. Vaughn v. State, No. CRC 06-16 APANO, ( Fla. 6th Cir. App. Ct. Feb. 21, 2008).

County Criminal Court: CRIMINAL LAW – Breath/Urine/Blood test –  Blood test results admissible where defendant reasonably believed to be DUI, appeared for treatment at a hospital, and the taking of a breath test was impractical. Fact that police failed to read implied consent does not warrant suppression of results. Order granting defendant’s motion to suppress reversed. State v. Garcia, No. CRC 05-87 APANO, (Fla. 6th Cir.App. Ct. August 2, 2007).

County Criminal Court: CRIMINAL LAW – Breath/Urine/Blood Test – Blood test results properly admitted because it was impractical to take a breath test where defendant was in hospital, on a gurney, immobilized, wearing a neck brace, and apparently in pain. Police not required to ask medical personnel how long defendant would be in hospital, and defendant’s subsequent quick release from hospital not sufficient to justify suppression. Judgment and sentence affirmed. Dault v. State, No. CRC 06-42 APANO, (Fla. 6th Cir. App. Ct. May 21, 2007).

County Criminal Court: CRIMINAL LAW – Breath/Urine/Blood Test – Blood test results should have been admitted where a passenger in defendant’s vehicle had collided with windshield and was taken to hospital, was unconscious, possibly suffering from neck injuries, and medical personnel said the passenger was in serious condition. Order granting motion to suppress reversed. State v. Hughes, No. CRC 06-27 APANO, (Fla. 6th Cir. App. Ct. March 23, 2007).

County Criminal Court : CRIMINAL LAW – Breath/Urine/Blood Test – Defendant’s asking for a blood test instead of a breath test is not the same as asking for and independent blood test. Judgment an sentence affirmed. Butler v. State, No. CRC 05-31 APANO, (Fla. 6th Cir.App.Ct. Feb. 28, 2006).

County Criminal Court:  CRIMINAL LAW – Urine Test – Bodden decision entered by Second District has been squarely overturned by the Florida Supreme Court – implied consent law for operators of motor vehicles does not require that urine testing methods be approved in accordance with the Administrative Procedures Act - trial court’s order denying defendant’s motion to suppress must be affirmed  -- Order affirmed.  Clement v. State, No. 03-00086 APANO (Fla. 6th Cir. App. Ct. Sept. 8, 2004).

County Criminal Court:  CRIMINAL LAW – Urine Test – Bodden decision entered by Second District has been squarely overturned by the Florida Supreme Court – implied consent law for operators of motor vehicles does not require that urine testing methods be approved in accordance with the Administrative Procedures Act - trial court’s order granting defendant’s motion to suppress must be reversed  -- Order reversed.  State v. Ortiz, No. 03-00018 APANO (Fla. 6th Cir. App. Ct. Sept. 8, 2004).

County Criminal Court:  CRIMINAL LAW – Urine Toxicology Report – person arrested for DUI may volunteer to give a urine sample – trial court erred by refusing to hear argument or testimony on whether sample was provided voluntarily – implied consent law does not require urine testing procedures be promulgated by rule in accordance with the Florida Administrative Procedure Act in order for test results to be admissible -- Order reversed.  State v. Eason, No. 03-00058 APANO (Fla. 6th Cir. App. Ct. May 3, 2004).

County Criminal Court: CRIMINAL LAW – Breath/Blood Test – Defendant’s taking of blood test was not coercive under the circumstances of this case. – Judgment affirmed.- Goewey v. State, No. 03-27 APANO (Fla. 6th Cir. App. Ct. Feb. 4, 2004).

The Petitioner’s refusal to blow a first and second time, after being presented with the mouthpiece for the purpose of administering the breath test, is competent substantial evidence to support the hearing officer’s finding that the Petitioner “did refuse to submit to any such test after being requested to do so by a law enforcement officer.” Miramontes v. State of Florida, Dept. of Highway Safety, No. 00-0223-CI-88A (Fla. 6th Cir. Ct. August 14, 2000).

Although the results of two breath tests were greater than .02 apart and a third test was not administered, this does not require the suppression of the test results because in this case it was the defendant himself who prevented the third test from being administered. Defendants may not benefit from defects they create. State v. Thompson, No. CRC 94-3910 CFANO (Fla. 6th Cir. Ct. July 5, 1995).

Defendants' failure to understand their rights under the Implied Consent law does not provide a basis for suppressing breath test results. State v. Ngo, No. CRC 94-16680 CFANO (Fla. 6th Cir. Ct. Sept. 8, 1995).

Order granting state's motion in limine excluding results of a defendant's roadside pre-release breath test was affirmed because the defendant failed to show the results were properly obtained and scientifically reliable. State v. Thompson, No. CRC 95-21388 CFANO (Fla. 6th Cir. Ct. May 15, 1996).

Evidence obtained as a result of a blood test was properly suppressed because the officer misinformed the defendant he was required to submit to a blood test and there was no evidence that a blood test was impractical. State v. Dorgan, No. CRC 95-13451 CFANO (Fla. 6th Cir. Ct. June 12, 1996).

A single breath test is not scientifically unreliable and, therefore, inadmissible. A single breath test only precludes the state from using the evidentiary shortcut in Florida Statute 316.1932 (1) (b) 2 that provides that the results of breath tests conducted in substantial compliance with the regulations are presumptively reliable. State v. Irwin, No. CRC 95-3835 CFANO (Fla. 6th Cir. Ct. July 3, 1996).

A single test may be admissible if the state can establish a scientific predicate to support the test results. The state must establish that: (1) the test was reliable; (2) the test was performed by a qualified operator with the proper equipment; and (3) expert testimony demonstrates the meaning of the test. Id.

Defendant's consent to a blood test was not tainted by the officer's reading of Miranda followed by the implied consent law. Knapp v. State, No. CRC 95-17189 CFANO (Fla. 6th Cir. Ct. Sept. 25, 1996).

Code Violations

County Criminal Court: CRIMINAL LAW – Code violations – Trial court did not err in denying Appellant’s motion for judgment of acquittal during non-jury trial for street vending, in violation of § 25-9, City Code of St. Petersburg.  This ordinance is constitutional on its face and it is not unconstitutional as applied to Appellant on First Amendment grounds.  Appellant argued he was merely standing on roadside with blank sign in protest of street vending ordinance and that this activity was protected by the First Amendment, but evidence before the trial court was that Appellant violated facially constitutional ordinance by receiving money from occupants of vehicles in the roadway.  Judgment and sentence affirmed.  Acquin v. State, No. 11-00022APANO (Fla. 6th Cir. App. Ct. October 31, 2011).

County Criminal Court:  CRIMINAL LAW – CODE VIOLATIONS – Pursuant to Pinellas County Code Section 138-1, a business falls under the zoning exclusion of the definition of a volume reduction plant when it does not generate solid waste in the process of reducing recycled materials for re-use in its business and for collection by a scrap metal company.  Reversed and remanded.  Sarnago & Sons Properties, Inc. v. State, CRC07-00085APANO (Fla. 6th Cir. App. Ct. May 27, 2009).

County Criminal Court: CRIMINAL LAW – Code Violations – The fact that a long-distance trucker was frequently away, does not render his parking of his tractor-trailer at his house temporary parking – an exception to the St.Petersburg city code prohibition of parking a commercial vehicle at a residential property. Judgment and sentence affirmed. Chiandusse v. State, No. CRC 04-42 APANO, (Fla. 6th Cir.App.Ct. May 27, 2005).

County Criminal Court:  CRIMINAL LAW – Municipal Code Violations – Code provision prohibiting the parking of commercial vehicles in residential areas is not unconstitutionally vague – code uses words of common usage that gives a person of ordinary intelligence fair notice of what conduct is prohibited – undisputed facts of case provide competent substantial evidence to support trial court’s finding of guilt -- Order affirmed.  Spaulding v. State, No. 03-00066 APANO (Fla. 6th Cir. App. Ct. Sept. 9, 2004).

Competency

County Criminal Court: CRIMINAL LAW – Competency – The trial court did not abuse its discretion in finding that Appellant was competent to proceed to trial. Affirmed.  Skelly v. State, No. CRC1000742CFAWS, (Fla. 6th Cir.App.Ct. December 6, 2010

County Criminal Court: CRIMINAL LAW – Competency --- Record did not support trial court’s finding that defendant remained incompetent where expert had not seen defendant in a year and a half and testimony was equivocal. Order of dismissal reversed. State v. Lavine, No. CRC 07-13 APANO ( Fla. 6th Cir. App. Ct. April 18, 2008).

County Criminal Court: CRIMINAL LAW-Competency- once the judge is presented with reasonable grounds to believe a defendant may not have sufficient present ability to consult with his attorney and aid in the preparation of his defense with a reasonable degree of understanding, he must order a hearing and examination pursuant to Rule 3.210- an objective evaluation of the facts presented to the trial court establishes that the trial court had more than reasonable grounds to believe appellant may have been incompetent to stand trial-trial court had an independent responsibility, on its own motion, to make an inquiry into and hold a hearing on the competency of the defendant when there is evidence that raises questions as to that competency -Judgment reversed. Moon v. State, No. 03-4511CFAES (Fla. 6th Cir. App. Ct. October 25, 2004).

Complaint/Arrest Affidavit

County Criminal Court: CRIMINAL LAW---Complaint/Arrest Affidavit --- Discrepancy between the offense date in the charging document and the date proved at trial is insufficient to justify granting a motion for judgment of acquittal. Judgment and sentence affirmed. Gaber v. State, No. CRC 07-31 APANO ( Fla. 6th Cir. App. Ct. April 18, 2008).

Destruction or Loss of Evidence

County Criminal Court: CRIMINAL LAW – Destruction or loss of evidence – Motion to dismiss properly denied where there was no showing that the evidence was exculpatory or the State or its agents acted in bad faith in destroying it. Judgment and sentence affirmed. Johnston v. State, No. CRC 06-61 APANO (Fla. 6th Cir.App.Ct. December 31, 2007).

County Criminal Court:  CRIMINAL LAW – destruction or loss of evidence – trial court erred in dismissing charge based on destruction or loss of videotape depicting appellant’s participation in field sobriety test – trial judge did not find that the videotape was material and favorable to the accused or that law enforcement acted in bad faith – Order reversed and case remanded.  State v. Eno, No. 01-08085 ( Fla. 6th Cir. App. Ct. April 28, 2003).

Discovery Violation/Dismissal

County Criminal Court : CRIMINAL LAW - Discovery Violation. A defendant in a probation revocation proceeding is entitled to reasonable discovery;  since  defendant raised the issue that the videotape was not provided to him, it was the court’s duty to have a Richardson hearing in order to determine the possible prejudice to the defendant. Order of Suppression reversed. Rodriguez v. State,  No. 066707CFAWS, ( Fla. Cir.App.Ct. November 30, 2007).

County Criminal Court: CRIMINAL LAW - Discovery Violation. Even if there was insufficient compliance by the state, with a discovery request, suppression of evidence was error where the trial court failed to consider the proper factors and failed to consider less drastic sanctions. Order suppressing evidence reversed. State v. Farneth, No. CRC 04-5468CFAES (Fla. 6th Cir.App.Ct. May 10, 2006

County Criminal Court: CRIMINAL LAW – Discovery Violation/Dismissal. Although State failed to comply with a discovery request, suppression of critical evidence was error where the trial court failed to consider the proper factors and failed to consider less drastic sanctions. Order suppressing evidence reversed. State v. Guitierrez, No. CRC 05-11 APANO, (Fla. 6th Cir.App.Ct. Feb. 8, 2006).

County Criminal Court: CRIMINAL LAW – Discovery violation/Dismissal – State failed to properly notify the defendant in good faith of its intent to subpoena his health records. Therefore, State is not permitted to use the records in its prosecution. Judgment and sentence reversed. Coburger v. State, No. CRC 03-2 APANO, (Fla. 6th Cir.App.Ct. June 8, 2005).

The trial court properly denied a motion to dismiss as a sanction for the state's failure to preserve video tape of the field sobriety tests and the reading of implied consent because there was no evidence of bad faith in the failure of the video tape machine. Pirnya v. State, No. CRC 95-10279 CFANO (Fla. 6th Cir. Ct. Feb. 27, 1996).

DUI

County Criminal Court: CRIMINAL LAW – DUI – Motion to Suppress – Trial court erred in granting motion to suppress breath test results in DUI case on basis that inspector who last inspected instrument used to collect breath samples did not have valid inspection permit because she had not met continuing education requirements as mandated by administrative code rule.  That rule, 11D-8.008, F.A.C., was promulgated by the Florida Department of Law Enforcement (FDLE) under its responsibility to regulate individuals who inspect breath test instruments.  The testimony of FDLE employee who wrote the rule and FDLE department inspector from other cases was entered into evidence; testimony indicated that under FLDE’s interpretation of the rule, the inspector had a valid permit.  Because FDLE’s interpretation of the rule it promulgated was not unreasonable or clearly erroneous, the trial court was required to give great deference to FDLE’s interpretation and could not depart from it.  Order granting motion to suppress reversed.  State v. Allen, No. 12-00026APANO (Fla. 6th Cir. App. Ct. December 26, 2012).

County Traffic Court: CRIMINAL LAW – DUI - Checkpoint – Trial court did not err in granting motion to suppress evidence obtained at DUI checkpoint when the checkpoint was not constitutionally valid.  The written plan governing the checkpoint contained a provision for selection of vehicles to be pulled over, but failed to sufficiently limit discretion of officers conducting checkpoint to amend the vehicle selection process.  The written plan allowed officer to alter the selection process based on any criteria as determined by officer, resulting in prohibited level of unbridled discretion and rendering checkpoint constitutionally invalid.  Affirmed.  State v. Rizzo, No. 11-00076APANO; State v. Ferment, No. 11-00075APANO (Fla. 6th Cir. App. Ct. September 13, 2012).

County Criminal Court: CRIMINAL LAW – DUI – Motion to Suppress – Trial court erred in granting motion to suppress breath test results in DUI case on basis that inspector who last inspected instrument used to collect breath samples did not have valid inspection permit because she had not completed necessary continuing education requirements as mandated by administrative code rule concerning eligibility of inspectors.  That rule, 11D-8.008, F.A.C., was promulgated by the Florida Department of Law Enforcement (FDLE) under its responsibility to regulate individuals who inspect breath test instruments.  A trial court must give great deference to an agency’s or department’s interpretation of a rule it promulgated concerning matters it administers. As FDLE’s interpretation of the rule it promulgated was not unreasonable or clearly erroneous, the trial court was required to give great deference to FDLE’s interpretation and could not depart from it.  Order granting motion to suppress reversed.  State v. Espy, No. 12-00008APANO (Fla. 6th Cir. App. Ct. August 10, 2012).

County Criminal Court: CRIMINAL LAW – DUI – Trial court erred in granting motion in limine to introduce evidence that Appellant failed to submit to a breath test when stopped for DUI while riding a bicycle.  Appellant asked if he could refuse to provide a breath sample.  Officer told him he could refuse but did not tell him that his refusal could be used against him at trial. State introduced evidence refusal to submit to test to show consciousness of guilt.  But because Appellant was not advised of consequences of refusing, was led to believe test was optional, and was not told about purpose of test, he had no substantial motivation to submit to test; therefore, evidence of refusal should have been excluded.  Order granting State’s motion in limine reversed; judgment and sentence reversed; case remanded.  Morris v. State, CRC10-00080APANO (Fla. 6th Cir. App. Ct. April 23, 2012).

County Criminal Court: CRIMINAL LAW – DUI – Motion to Suppress – Trial court did not err in denying motion to suppress evidence.  Second officer arrived at scene of accident after first officer, who had been dispatched, was already present.  Second officer had authority to arrest Appellant, even though second officer was not dispatched or summoned to the scene, because he performed an investigation at the scene.  Second officer developed probable cause for DUI arrest when he observed that Appellant smelled of alcohol and Appellant displayed slurred speech, flushed face, and bloodshot and glassy eyes.  Order denying motion to suppress affirmed.  Bolan v. State, No. 10-00081APANO (Fla. 6th Cir. App. Ct. August 18, 2011)

County Criminal Court: CRIMINAL LAW – DUI – Motion to Suppress – Trial court did not err in denying motion to suppress evidence.  Second officer arrived at scene of accident after first officer, who had been dispatched, was already present.  Second officer had authority to arrest Appellant, even though second officer was not dispatched or summoned to the scene, because he performed an investigation at the scene.  Second officer developed probable cause for DUI arrest when he observed that Appellant smelled of alcohol and Appellant displayed slurred speech, flushed face, and bloodshot and glassy eyes.  Order denying motion to suppress affirmed.  Bolan v. State, No. 10-00081APANO (Fla. 6th Cir. App. Ct. August 18, 2011).

County Criminal Court: CRIMINAL LAW – DUI – Motion to suppress – Trial court erred in granting motion to suppress evidence of Appellee’s refusal to submit to breath test in DUI case.  Appellee’s actions amounted to clear refusal to submit to breath test, where Appellee waived his Miranda rights; replied “no” to officer’s request for breath test; twice stated he did not understand the complied consent law after officer read it to him twice; and remained mute with a blank look when officer repeatedly explained Implied Consent.  Additionally, the confusion doctrine was not available to Appellee.  The applicability of the doctrine is not clearly established in Florida courts and Appellee did not claim confusion about Miranda rights or ask to speak with an attorney.  Order granting motion to suppress reversed.  State v. Heffron, No. CRC11-00011APANO (Fla. 6th Cir. App. Ct. August 10, 2011).

County Criminal Court: CRIMINAL LAW — DUI — Motion to Suppress — Since law enforcement improperly read implied consent, Appellee did not knowingly and voluntarily give actual.  Trial court’s order granting motion to suppress is affirmed.  State of Florida v. David Michael Griffith, No. CRC10-001308-CFAES (Fla. 6th Cir. App. Ct. May 16, 2011).

County Criminal Court: CRIMINAL LAW — DUI — Motion to Suppress — Appellee’s behavior at the accident scene provided the officer with adequate probable cause to arrest.  Trial court’s order granting motion to suppress is reversed.  State of Florida v. James Carl McKay, No. CRC10-001092-CFAES (Fla. 6th Cir. App. Ct. April 21, 2011).

County Criminal Court: CRIMINAL LAW — DUI — Motion to Suppress – Since Appellant freely and voluntarily consented, implied consent is inapplicable.  Denial of motion to suppress affirmed. John Todd Dempsey v. State of Florida, No. CRC-10-001058-CFAES (Fla. 6th Cir. App. Ct. February 4, 2011).

County Criminal Court: CRIMINAL LAW – DUI – Motion to Suppress – The trial court improperly granted Appellee’s motion to suppress when his erratic driving gave the officer the founded suspicion necessary to stop Appellee.  Reversed.  State v. Ellenberg, No. CRC1000444CFAES, (Fla. 6th Cir.App.Ct. January 4, 2011).

County Criminal Court: CRIMINAL LAW — DUI — Motion to Suppress – Since the trial court rejected the only testimony to support a legal basis to conduct a traffic stop, the trial court did err by granting Appellee’s motion to suppress. Granting of motion to suppress affirmed. State of Florida v. Patricia Lynn Rucks, No. CRC-10-00446-CFAES (Fla. 6th Cir. App. Ct. November 1, 2010).

County Criminal Court: CRIMINAL LAW — DUI — Motion to Suppress — Officer had reasonable cause to believe that Appellee was driving under the influence when he ordered a blood draw after Appellee had caused a traffic accident and was unconscious.  Trial court’s order granting motion to suppress is reversed.  State of Florida v. Lee Allen Shorey, No. CRC09-001587-CFAES (Fla. 6th Cir. App. Ct. October 27, 2010).

County Criminal Court: CRIMINAL LAW – DUI – Motion in Limine - Incidental to defendant’s lawful arrest in DUI case hydrocodone pills were discovered in defendant’s vehicle.  Grant of motion in limine excluding evidence of the hydrocodone pills was improper because 1) there was substantial evidence of the defendant’s impairment, 2) the circumstances of defendant’s possession of the prescribed pills indicated recent use, 3) there was insufficient evidence that defendant consumed any substance that explained his impairment, and 4) there was no evidence that the hydrocodone could not have contributed to his impairment.  State v. Detro, No. CRC09-00060APANO (Fla. 6th Cir. App. Ct. September 23, 2010).

County Criminal Court: CRIMINAL LAW — DUI — Motion to Suppress — The trial court properly found that the officer had probable cause to arrest Appellant for driving under the influence.  Trial court’s order denying Appellant’s motion to suppress affirmed.  Jimmy Gasper v. State of Florida, No. CRC09-003596-CFAES (Fla. 6th Cir. App. Ct. August 25, 2010).

County Criminal Court: CRIMINAL LAW — DUI — Motion to Suppress —Officer had probable cause to arrest when Appellee rear-ended another car at 55 miles per hour during the afternoon and Appellee displayed several characteristics consistent with someone who was under the influence.  Trial court’s order granting motion to suppress is reversed.  State of Florida v. Christopher Dennis, No. CRC09-001587-CFAES (Fla. 6th Cir. App. Ct. May 24, 2010).

County Criminal Court: CRIMINAL LAW – DUI – Convictions for DUI and driving while license suspended or revoked supported by competent, substantial evidence, and motion for judgment of acquittal properly denied, where responding officer determined Appellant to be driver of vehicle and identified Appellant in court, and toxicologist testified that alcohol and drugs contained in Appellant’s blood can enhance impairment. Such evidence was sufficient to establish that Appellant was actual driver of vehicle and was impaired. However, judgment did not accurately detail sentences or include statutory authority for imposition of financial obligations, and Appellant was not informed of right to a hearing to contest amount of Public Defender fees - Conviction affirmed; case remanded for trial court to enter amended judgment and strike Public Defender fee. Moore v. State¸ CRC09-00027APANO (Fla. 6th Cir. App. Ct. May 17, 2010).

County Criminal Court:  CRIMINAL LAW – DUI – Motion to Suppress – Officer who stopped motorist beyond the officer’s jurisdiction and conducted a DUI investigation acted without authority because he did not comply with mutual aid agreement.  Further, the officer’s stop could not be justified as a citizen’s arrest because the stop did not constitute an arrest and the officer acted under the color of office by obtaining evidence a private citizen could not secure.  Granting of motion to suppress affirmed.  State v. Earle, CRC08-00059APANO (Fla. 6th Cir. App. Ct. April 12, 2010).

County Criminal Court: CRIMINAL LAW — DUI — Motion to Suppress —Field sobriety tests should not be suppressed based upon their reliability.  Trial court’s order granting motion to suppress is reversed.  Richard Kirkendall v. State of Florida, No. CRC09-00764-CFAES (Fla. 6th Cir. App. Ct. March 4, 2010).

County Criminal Court:  CRIMINAL LAW – DUI – Incidental to defendant’s arrest in DUI case marijuana paraphernalia was discovered on his person and he refused to submit to breath and urine tests.  Grant of motions in limine to exclude mention of paraphernalia and defendant’s refusal was improper where the defendant was in possession of an illicit substance, notwithstanding that there was no testimony that the defendant was in fact under the influence of a specific illicit substance, pursuant to factors set forth in Gonzales v. State, 9 So. 3d 725 (Fla. 4th DCA 2009).  Reversed and remanded.  State v. Robert Varney, CRC08-00072APANO (Fla. 6th Cir. App. Ct. January 8, 2010).

County Criminal Court: CRIMINAL LAW – DUI – Motion to Suppress – Observing a vehicle jerk once and weave twice in its lane, coupled with the day of the week, the time of day, and the deputy’s experience creates a reasonable suspicion for a deputy to conduct an investigatory stop in the interest of public safety and is consistent with the principles set forth in Taylor v. State, 355 So. 2d 180, 185-86 (Fla. 3d DCA 1978).  Denial of motion to suppress affirmed; judgment and sentence affirmed.  Lynn Eugene Maxwell v. State, CRC08-00076APANO (Fla. 6th Cir. App. Ct. January 8, 2010).

County Criminal Court: CRIMINAL LAW – DUI – Motion to suppress results of forced blood test in DUI case was properly denied when officer who responded to scene of accident formed probable cause that the driver was intoxicated and caused an accident resulting in serious bodily  harm, pursuant to section 316.1933, Florida Statutes. Denial of motion to suppress affirmed; judgment affirmed. David L. Harrington v. State, CRC08-00083APANO (Fla. 6th Cir. App. Ct. December 10, 2009)

County Criminal Court: CRIMINAL LAW – DUI – Intoxilyzer report – Standard of review.  The monthly maintenance and inspection report of an Intoxilyzer, which is conducted pursuant to Rule 11D-8.006(1) Florida Administrative Code is not testimonial in nature, but rather is a business record.  As a business record, a monthly maintenance and inspection report was properly admitted without necessity of the person who performed the inspection and prepared the report.  Whether the inspection report was a business record or testimonial in nature involved a mixed question of law and fact, making de novo the appropriate standard of review.  Judgment and sentence affirmed.  Jason Chepenik v. State, No. CRC 08-00040APANO (Fla. 6th Cir. App. Ct. March 27, 2009).

County Criminal Court:  CRIMINAL LAW – DUI – motion to suppress -  trial court properly granted motion to suppress-while trial court’s  evaluation of the facts shown on the video differs from the officer’s evaluation, appellate court must uphold the trial court’s  findings of fact if there is competent, substantial evidence to support those findings-Order affirmed. State v. Jenkins, III, No. CRC 08-02767CFAES  (Fla. 6th Cir. Ct. January 28,  2009).  

County Criminal Court:  CRIMINAL LAW---DUI – operating a bicycle while intoxicated is a violation of the DUI Statute, and subjects the operator or driver of the bicycle to revocation of his or her driver’s license under § 322.28 Florida Statutes.  Order affirmed.  Heikkinen v.. State, No. CRC 07-00084APANO (Fla. 6th Cir. App. Ct. September 2, 2008)

County Criminal Court: CRIMINAL LAW --- DUI --- Trial court erred in granting motion to dismiss because information given to police by third party witness and the officer’s own observations of the defendant’s physical characteristics and behavior were sufficient to justify a DUI investigation without resorting to information given by the defendant during the accident investigation. Order granting motion to suppress denied. State v. Walker, No. CRC 06-85 APANO ( Fla. 6th Cir. App. Ct. April 3, 2008).

County Criminal Court: CRIMINAL LAW --- DUI –  Source codes for the Intoxilyzer 5000 breath test machine are not discoverable. Judgment and sentence affirmed. Licari v. State, No. CRC 06-65 APANO ( Fla. 6th Cir.App.Ct. March 31, 2008).

County Criminal Court: CRIMINAL LAW – DUI – Confrontation clause not violated where witness, a medical technician who drew blood, testified he did not remember the particular incident. Witness was able to testify he signed the certificate and testify about what his normal procedures were. Judgment and sentence affirmed. Medina v. State, No. CRC 07-33 APANO, (Fla. 6th Cir. App. Ct. Feb. 15, 2008).

County Criminal Court: CRIMINAL LAW – DUI -That the appellant was found asleep behind the wheel on a “desolate” roadway is not persuasive in showing that the appellant’s actions did not constitute a breach of the peace.-appellant was the only person in the car the only reasonable inference is that the appellant drove drunk. The ‘color of office’ doctrine only applies to prevent law enforcement officials from using the power of their office to observe unlawful activity or gain access to evidence not available to a private citizen. Affirmed. Johnson v. State, Case 074042CFAES (Fla. 6th Cir.App.Ct. February 7, 2008).

County Criminal Court: CRIMINAL LAW – DUI – traffic stop – The court found that the state did not meet its burden in proving that the investigatory stop was justified; and  also found that the weaving within the lane was not coupled with any other suspicious activity; when sitting as the trier of fact, the trial judge has the "superior vantage point to see and hear the witnesses and judge their credibility.” . Affirmed. State v. Patton, Case 0704819CFAWS,  (Fla. 6th Cir. App. Ct. February 1, 2008).

Criminal Court: CRIMINAL LAW-DUI-while there is no doubt that the appellant was seized, deputy had probable cause to arrest at the time of the stop and  was justified in restraining appellant- even assuming the deputy did not have probable cause at the time of the stop, the request to put out the cigarette did not transform the detention of the defendant from that of an investigative traffic stop based on reasonable suspicion to an illegal detention. Affirmed. Anthony v. State, Case 074045CFAES, (Fla. 6th Jud. Cir. February 1, 2008).

County Criminal Court:  CRIMINAL LAW – DUI – Motion to Suppress—Based on totality of the circumstances where an officer observed the erratic operation of a motor vehicle for a sufficient period of time, the officer’s investigatory stop of the vehicle was lawful - Order denying motion to suppress affirmed.  Cook v. State, No. 07-00003APANO (Fla. 6th Cir.App.Ct. Jan.24, 2008).

County Criminal Court:  CRIMINAL LAW – DUI – Motion to Suppress—Officer’s investigatory stop of vehicle at 2:30 AM was supported by well-founded suspicion of unlawful activity when officer first determined that the vehicle’s registered owner did not have valid license. - Order denying motion to suppress affirmed.  Pickenpaugh v. State, No. 07-00028APANO (Fla. 6th Cir.App.Ct. Jan. 24, 2008).

Criminal County Court: CRIMINAL LAW --- DUI --- Corpus delicit met where police found what appeared to have been a recent accident in wet conditions and found defendant/registered owner at home one block away, who came to meet police wearing wet pants and appeared to be under the influence. Judgment and sentence affirmed. Clifford v. State, No. CRC 06-5 APANO (Fla. 6th Cir. App. Ct. December 19, 2007)

Criminal Court: CRIMINAL LAW-DUI-Checkpoint- clear purpose of lighting and warning on the roadway, in advance of the stop, is to reduce threat of startling the driver, and alert motorists that they are approaching something legitimate; it is not to give them advance notice so that they may turn and avoid the checkpoint.  Order of Suppression reversed.  State v. Bradley, 0606806CFAWS,  State v. Smith, 0606804CFAWS, State v. Miller, 0606805CFAWS, ( Fla. 6th Jud. Cir. November 30, 2007).

County Criminal Court: CRIMINAL LAW – DUI –Police did not fail to comply with their own written guidelines for roadblock. Judgment and sentence affirmed. Scrivener’s error not sufficient to negate roadblock. Ralston v. State, No. CRC 06-43 APANO (Fla. 6th Cir. App. Ct. October 12, 2007).

County Criminal Court: CRIMINAL LAW – DUI –Police did not fail to comply with their own written guidelines for roadblock. Judgment and sentence affirmed. Schreiber v. State, No. CRC 06-56 APANO (Fla. 6th Cir. App. Ct. October 12, 2007).

County Criminal Court: CRIMINAL LAW-DUI- Corpus delicti must be established beyond a reasonable doubt to survive a motion for judgment of acquittal - a defendant's confession or statement "may be considered in connection with the other evidence," but "the corpus delicti cannot rest upon the confession or admission alone- Corpus existed for the crime at least circumstantially, before the appellants admissions were admitted into evidence. Moore v. State, No. 0602438CFAES, (Fla. 6th Jud. Cir. January  24, 2007).

County Criminal Court: CRIMINAL LAW - DUI - traffic stop –  open bottle of Jack Daniels and appellant’s statements to police officer provided reasonable suspicion to further investigate whether or not defendant was driving under the influence. Order affirmed.  Andrews v. State CRC0602306CFAES (Fla. 6th Cir. App. Ct October 5, 2006).

County Criminal Court: CRIMINAL LAW –DUI – Stop not justified where police saw defendant commit traffic offense on private property (apartment complex) where State failed to show complex generally open to traffic, and complex and police did not have a written agreement allowing police to enforce traffic laws. Judgment and sentence reversed. Nemeth v. State, No. CRC 05-89 APANO, (Fla. 6th Cir.App.Ct. October 3, 2006).

County Criminal Court: CRIMINAL LAW - DUI - State did not establish the corpus delicti where there were no witnesses to the accident, no one who saw the defendant driving, and the only evidence placing the defendant behind the wheel was his own testimony. Mere proximity to the location of the accident is insufficient. Order granting defendant’s motion to dismiss affirmed. State v. Wuteska, No. CRC 05-75 APANO, (Fla. 6th Cir. App.Ct. September 25, 2006).

County Criminal Court: CRIMINAL LAW - DUI - traffic stop -the observation of a traffic infraction alone gives law enforcement lawful grounds to have a driver exit his vehicle; smell of alcohol coming from breath, bloodshot watery eyes and swaying provides reasonable suspicion to further investigate whether or not defendant was driving under the influence. Order reversed. State v. Exler, No. 05-5356CFAES (Fla. 6th Cir. App. Ct May 10, 2006).

County Criminal Court: CRIMINAL LAW - DUI - traffic stop -smell of alcohol coming from breath, bloodshot watery eyes and swaying provides reasonable suspicion to further investigate whether or not defendant was driving under the influence. Order reversed. State v. Kuhn, CRC05-3611CFAES (Fla. 6th Cir. App. Ct May 12, 2006).

County Criminal Court:  CRIMINAL LAW – DUI – motion to suppress -  Sufficient evidence existed to show officer had probable cause to order forcible blood draw where officer testified that his investigation revealed the driver missed the turn in the road-officer could smell the odor  of alcohol and noticed the one eye that was open was bloodshot and watery- EMS told the officer that appellee had severe head trauma and were concerned about brain injury-EMS advised officer that they wanted to bayflight the driver to the hospital- Order reversed. State v. Heater, No. 053604CFAES (Fla. 6th Cir. Ct. February 15, 2006).  

County Criminal Court: CRIMINAL LAW – DUI – Sufficient reasonable suspicion of DUI where defendant drives up to police who were at his house, with blood-shot and watery eyes, an odor of alcohol on his breath and loudly demands to know why police are there. Reh v. State, No. CRC 04-40 APANO, ( Fla. 6 th Cir.App.Ct. May 24, 2005).

County Criminal Court: CRIMINAL LAW – DUI – traffic stop – changing lanes more than once with directional on is not sufficient for an investigatory stop-an appellate court will not substitute its judgment for that of the trial court on the credibility of the witnesses and the weight to be given to the evidence-no evidence officer was concerned for other traffic -- Order affirmed. State v. Greenless, No. 04-1930CFAES (Fla. 6th Cir. App. Ct. January 18, 2005).

County Criminal Court: CRIMINAL LAW-DUI- Corpus delicti must be established beyond a reasonable doubt to survive a motion for judgment of acquittal - a defendant's confession or statement "may be considered in connection with the other evidence," but "the corpus delicti cannot rest upon the confession or admission alone-state failed to prove the crime of driving under the influence was committed- Judgment reversed- Roy v. State, No. 03-483619WTW (Fla. 6th Cir. App. Ct. January 13, 2005).

County Criminal Court: CRIMINAL LAW – DUI – traffic stop – driving slower than the posted speed limit and drifting within lane is not considered an 'erratic' driving pattern from which to support a lawful investigatory stop-no evidence officer suspected defendant was impaired or that he was concerned for other traffic -- Order affirmed. State v. Gray, No. 0302706CFAES (Fla. 6th Cir. App. Ct. November 22, 2004).

County Criminal Court:  CRIMINAL LAW – DUI - Actual Physical Control – no error in denying defendant’s motion to dismiss – record shows that State did file traverse to motion – actual physical control, including subsumed issue of vehicle operability, was a factual question for the jury to decide -- Order affirmed.  Krivanek v. State, No. 03-00040 APANO (Fla. 6th Cir. App. Ct. June 16, 2004).

County Criminal Court:  CRIMINAL LAW – DUI – traffic stop – traffic stop was lawful from the totality of the circumstances observed by arresting officer before activating his overhead lights – appellant was observed speeding, swerving in his lane and failed to use turn signals – officer testified that he suspected defendant was impaired and expressed concern for other traffic -- Order affirmed.  Tooke v. State, No. 03-00003 APANO (Fla. 6th Cir. App. Ct. Feb. 6, 2004).

County Criminal Court:  CRIMINAL LAW – DUI – Motion for continuance – motion in limine to exclude urinalysis – trial court did not abuse its discretion in denying motion for continuance requested just 6 days before trial – trial court did not abuse its discretion in denying motion in limine when appellant failed to make a contemporaneous objection when urinalysis evidence introduced at trial -- Order affirmed.  Reese v. State, No. 03-00003 APANO (Fla. 6th Cir. App. Ct. Feb. 6, 2004). 

County Criminal Court:  CRIMINAL LAW – DUI – citizen informant – caller was citizen informant as his identity was readily ascertainable and the caller was not motivated by any reason other than concern for the safety of others – trial court’s order granting motion to suppress must be sustained as there was insufficient information given by the citizen informant and there were discrepancies in what information what actually provided in the citizen informant tip -- Order affirmed.  State v. Bennett, No. 02-19155 CFANO (Fla. 6th Cir. App. Ct. Jan. 23, 2004).

County Criminal Court:  CRIMINAL LAW – DUI – Traffic Stop – defendant is entitled to de novo review of whether the application of the law to the facts establishes an adequate basis for the trial court’s finding of probable cause – the standard used in determining whether the officer detained a person is objective:  whether a “reasonable person” would feel free to leave under the circumstances, not whether a person involved in a particular encounter is aware of the officer’s presence – denial of motion to suppress must stand since there is a theory or principle of law in the record to uphold the trial court’s ruling – videotape of traffic stop showed defendant illegally parked on the side of the road -- Order affirmed.  Chavarria v. State, No. 02-14774 CFANO (Fla. 6th Cir. App. Ct. Jan. 15, 2004).

County Criminal Court:  CRIMINAL LAW – DUI – motion to suppress - implied consent warning/probable cause for arrest – trial court did not err in denying motion to suppress – officer informed driver of consequences for refusing breath or urine test - State need not prove that driver understood implied consent warning – observation of driver speeding and failing to maintain single lane coupled with blood shot, watery eyes, odor of alcohol, “fumbling around” for insurance papers, subsequent admission to drinking, and failure to perform adequately on field sobriety tests were sufficient to form probable cause for arrest – Order and conviction affirmed.  Rubio v. State, No. 02-09213 (Fla. 6th Cir. App. Ct. April 28, 2003).

County Criminal Court:  CRIMINAL LAW – DUI – motion to suppress – length of detainment in rear of police cruiser – trial court did not err in denying motion to suppress – appellant was visibly intoxicated on scene, attempting to flee, intersection was busy and dangerous – temporary detention of 30-45 minutes was reasonable response to demands of situation – detention was necessary to prevent appellant’s escape and to conclude accident and DUI investigations – detainment did not amount to de facto arrest – Order and conviction affirmed.   Dulus v. State, No. 02-15001 (Fla. 6th Cir. App. Ct. April 28, 2003).

The trial court did not err in admitting the defendant’s post-arrest statements where the statements were introduced to show the defendant’s normal faculties were impaired.  Officers testified as to the defendant’s appearance, the defendant’s obscene and threatening statements, and his belligerent and hostile attitude.  These factors are relevant in determining whether the defendant was impaired, and their probative value is not outweighed by the danger of unfair prejudice.  Southerland v. State, No. CRC 00-10387 CFANO (Fla. 6th Cir. Ct. March 22, 2001). 

Although the trial court erred in denying defendant’s Motion for Judgment of Acquittal without allowing the defendant to present an argument, the error was harmless where the Court concluded beyond a reasonable doubt after evaluation of the impact of the error in light of the overall strength of the case and the defenses asserted that the verdict could not have been affected by the error.   Furthermore, because the State presented legally sufficient evidence at trial, the trial court properly denied the Motion.  Southerland v. State, No. CRC 00-10387 CFANO (Fla. 6th Cir. Ct. March 22, 2001). 

Sufficient evidence existed to show that implied consent warnings were properly given to the defendant where, although the officer could not recall precisely what he told defendant prior to the blood draw because he read implied consent specifically from an SAO card and he did not have this card with him at the motion hearing, the officer testified that he broke the law down “phrase by phrase” and that the defendant told him he understood and consented to giving the blood sample.  Furthermore, a paramedic at the scene testified that he was present when the officer read implied consent, heard the officer read implied consent, and then heard the defendant give his consent to have the blood sample extracted. Casey v. State, No. CRC 99-22912 CFANO (Fla. 6th Cir. Ct. January 25, 2001).

Sufficient evidence existed to show that to give the defendant a breath or urine test was impossible or impractical under the circumstances where the defendant immediately requested to be taken to a hospital, and when the officer read the defendant implied consent warnings the defendant was on a stretcher in the back of an ambulance with his head restrained attached to an inter venous line.  To give the defendant a breath test, the defendant would have had to be transported to the police department and removed from his immobilized position.  Casey v. State, CRC 99-22912 CFANO (Fla. 6th Cir. Ct. January 25, 2001).

A deputy’s stop of defendant’s vehicle was not pretextual and any evidence gathered after the stop was admissible where the deputy testified that he stopped the defendant’s vehicle because he observed the defendant violate a traffic control device by failing to turn right while in a right turn only lane, and because he believed the defendant was traveling from bar to bar with a business-only transporter tag attached to his vehicle.  Wilkins v. State, No. CRC 00-07405 CFANO (Fla. 6th Cir. Ct. December 14, 2000).

Trial court did not abuse its discretion by refusing to exclude evidence of the defendant’s use of marijuana prior to being stopped on suspicion of driving under the influence.  Although the defendant asked that this evidence be excluded for fear that its introduction might unfairly prejudice a jury against the defendant, the trial judge determined that the proffered evidence had some tendency, however minute, to prove or disprove a material fact.  Accordingly, defendant’s motion to suppress was properly denied.  Ketch v. State, No. CRC 99-9217 CFANO (Fla. 6th Cir. Ct. June 30, 2000).

A prima facie case that the defendant was in actual physical of his vehicle while under the influence of alcoholic beverages was supported by facts that showed that when the officers approached the vehicle the defendant was asleep behind the wheel, the headlights were on, the vehicle was angled against the curb, the keys were in the ignition, and the hood was still warm.  Accordingly, the trial court erred when it entered an order granting the defendant’s motion to dismiss.  State v. Clairborne, No. CRC 99-05992 CFANO (Fla. 6th Cir. Ct. May 26, 2000).

Defendant was in actual physical control of an auto because he was found behind the wheel of a car with the driver's side door open. He was in constructive possession of the keys because he was seen by the police who came to investigate reaching underneath the driver's side floor mat -- where the keys to the car were ultimately found. Guthrie v. State, No. CRC 96-2678 CFANO (Fla. 6th Cir. Ct. Dec. 6, 1996).

Actual physical control is to be determined by the totality of the circumstances. The relevant factors are: (1) active or constructive possession of the key to the vehicle; (2) the defendant is in the driver's seat; and (3) the vehicle is operable. Id.

Entrapment

It is not entrapment as a matter of law for an underage confidential informant who looks her age to offer a convenience store clerk the usual amount of money for a pack of cigarettes. State v. Reynolds, No. 95-726 CFAES (Fla. 6th Cir. Ct. April 16, 1996).

Evidence

County Criminal Court: CRIMINAL LAW ­– Evidence – Criminal defendants are given wide latitude to demonstrate bias or motive for a witness’s testimony. Failure to admit relevant testimony is subject to harmless error analysis. Where even the slightest relevant evidence exists supporting a theory of self-defense, all doubts as to the admissibility of that evidence should be resolved in favor of the defendant. Thus, the trial judge erred by preventing the development of the defendant’s self-defense theory through cross-examination, though only slight evidence was presented in support thereof.  The error was not harmless – reversed and remanded for new trial. Matthew Kenneth Robinson v. State of Florida, No. 14-00014APANO (Fla. 6th Cir. App. Ct. September 11, 2014).

County Criminal Court: CRIMINAL LAW ­– Evidence – Trial court did not abuse its discretion in allowing only the first 45 seconds of a 911 call into evidence under the exception for excited utterances. In applying the abuse of discretion standard, appellate courts ask whether reasonable people could differ as to the propriety of the action taken by the trial court. Here, the trial court reasonably exercised discretion contemplated by § 90.403 in admitting only a portion of the 911 tape – Order affirmed. State of Florida v. Ashley E. Tyson, No. 14-00024APANO (Fla. 6th Cir. App. Ct. Sep. 8, 2014).

County Criminal Court:  CRIMINAL LAW – Evidence —The trial court did not err in admitting notes from the 911 dispatcher or CAD notes.  While these notes were out-of-court statements, they were not offered to prove the truth of the matter asserted.  Rather, the notes were used to show that the officers had a reasonable suspicion to support the stop of the Defendant, and therefore, were engaged in a lawful execution of a legal duty as required by Section 843.02, Fla. Stat.  Judgment and Sentence affirmed.  Davis v. State, No. CRC13-00044APANO (Fla. 6th Cir. App. Ct. April 28, 2014).

County Criminal Court: CRIMINAL LAW – Evidence – There is sufficient evidence in the record to support the jury’s rejection of Appellant’s claims of self-defense.  Judgment and sentence affirmed.  Brandon R. Toepfer v. State of Florida, No. 13-CF-001733-ES (Fla. 6th Cir. App. Ct. December 23, 2013).

County Criminal Court: CRIMINAL LAW – Evidence – Trial court properly denied motion for judgment of acquittal.  While Appellant argued that element of criminal intent was not proven, Appellee presented competent evidence at trial for jury to infer guilt to the exclusion of all other inferences.  Order denying motion for judgment of acquittal affirmed.  Bean v. State, No. CRC13-00026APANO (Fla. 6th Cir. App. Ct. November 8, 2013).

County Criminal Court: CRIMINAL LAW – Evidence – Since the trial court applied the incorrect standard in its order dismissing Appellee’s charge for the officer’s failure to videotape the DUI investigation, this cause is remanded.  State v. Dustin Funderburg, No. 12-CF-004377-ES (Fla. 6th Cir. App. Ct. June 28, 2013).

County Criminal Court: CRIMINAL LAW – Evidence – The trial court did not err in finding Appellant guilty of driving a vehicle with knowledge that her driver’s license was suspended.  Judgment affirmed.  Nancy Everhart v. State, Appeal No.12-AP-0003-WS (Fla. 6th Cir.App.Ct. June 20, 2013).

County Criminal Court: CRIMINAL LAW – Evidence – Trial court did not err in denying Appellant’s motion in limine to exclude from DUI trial Appellant’s statement to law enforcement that he took medication that contained a controlled substance.  An out of court statement cannot be offered to establish an element of the crime unless there is independent evidence to establish the corpus delicti of the offense.  Here, there was other evidence introduced that established a prima facie case of DUI: Appellant was speeding and driving erratically, officer observed that Appellant displayed physical signs of impairment, and field sobriety exercises indicated impairment.  Statement was properly admitted; judgment and sentence affirmed.  Trusilo v. State, No. 10-00079APANO (Fla. 6th Cir. App. Ct. September 19, 2011).

County Criminal Court: CRIMINAL LAW – Evidence – Trial court erred in denying motion for judgment of acquittal on charge of obstructing or resisting an officer without violence.  Appellant was charged with obstructing police during the arrest of her husband.  Because there was no probable cause for police to arrest her husband, Appellant did not obstruct police during the “lawful execution of any legal duty,” as required for conviction under § 843.02, Fla. Stat.  Judgment and sentence reversed and remanded with directions.  Orbanes v. State, No. CRC10-00042APANO (Fla. 6th Cir. App. Ct. May 25, 2011).

County Criminal Court: CRIMINAL LAW – Search and seizure – Evidence – Trial court properly denied motion to suppress evidence.  Officer patrolling public park observed Appellant transfer object to another person, who inspected it and placed it in his pocket, after which he and Appellant quickly separated.  Officer initiated consensual encounter with the two individuals; based on their responses to his questions, officer had probable cause to believe that a drug transaction occurred and had probable cause to search Appellant.  Order denying motion to suppress affirmed.  Lewers v. State, No. CRC10-00068APANO (Fla. 6th Cir. App. Ct. May 17, 2011).

County Criminal Court: CRIMINAL LAW – Evidence – Judgment of Acquittal – Appellant’s motion for judgment of acquittal was properly denied as the State presented a prima facie case.  Affirmed.  Pineda v. State, No. CRC10006343CFAES, (Fla. 6th Cir.App.Ct. May 16, 2011).

County Criminal Court: CRIMINAL LAW – Evidence – Motion in Limine - Grant of motion in limine to exclude victim’s statements was improper where the statements were inextricably intertwined with events upon which the charge was based and were necessary to establish context, prove intelligent account, and adequately describe events.  Reversed in part and remanded.  State v. Vinson, No. CRC09-00036APANO (Fla. 6th Cir. App. Ct. September 23, 2010).

County Criminal Court: CRIMINAL LAW – Evidence – Trial court did not abuse its discretion in refusing to allow certain cross-examination testimony of victim to be heard by the jury; trial court has wide discretion in making determinations regarding the admissibility of evidence.  Judgment and sentence affirmed.  Mazzola v. State, No. CRC10-00011APANO (Fla. 6th Cir. App. Ct. September 10, 2010).

County Criminal Court: CRIMINAL LAW – Evidence – It was not error to charge the Defendant with crime requiring proof of impairment when no tests as to impairment were performed by police; law enforcement officers properly testified to their observations of the Defendant and statements made by the Defendant that went to whether he appeared under the influence. Judgment and sentence affirmed.  Johnstone v. State, No. CRC09-00041APANO (Fla. 6th Cir. App. Ct. August 16, 2010).

County Criminal Court: CRIMINAL LAW – Evidence – Discovery – The trial court did not abuse its discretion in conducting a Richardson inquiry following the State’s admitted discovery violation. Affirmed.  Harmon v. State, No. CRC0905525CFAWS, (Fla. 6th Cir.App.Ct. July 22, 2010).

County Criminal Court: CRIMINAL LAW – Evidence – the trial court did not err in extending period for speedy trial based on unforeseeable and unavoidable absence of State witness or in admitting un-redacted portion of jail phone call when necessary for determining witness credibility; harmless error to show DUI video depicting defendant in back of police car when sufficient other evidence to show impairment.  Judgment and sentence affirmed.  Lacey v. State, No. CRC08-00002APANO (Fla. 6th Cir. App. Ct. July 20, 2010).

County Criminal Court: CRIMINAL LAW – Evidence  – discovery – Public Defender attorney’s fees – trial court may properly exercise discretion to permit or deny evidence after allegation of a discovery violation and remedy of exclusion is sought, the trial court may exercise its discretion to permit or deny the evidence after a Richardson hearing.  Where the discovery violation was not willful, and the Defendant had an opportunity to read the witness’s statement and to question the witness before trial and did not ask for a continuance or seek other sanction, it was within the trial court’s discretion to permit the witness’s testimony.  Imposition of a Public Defender fee was improper where the trial court failed to advise the Defendant of her right to a hearing to contest the fee.  Judgment affirmed, remanded to the trial court for further proceedings on the PD fee.  Theresa Mari Labelle v. State. Appeal No. 08-00073APANO (Fla. 6th Cir.App.Ct. September 18, 2009).

County Criminal Court: CRIMINAL LAW – Evidence – prima facie case - Navigation Rules - To convict an accused of a violation of Florida Statute § 327.33(3)(a), Violation of a Navigation Rule Resulting in a Boating Accident, the State must prove three elements beyond a reasonable doubt: 1) that a boating accident occurred, 2) that the person charged violated a navigation rule, and 3) that the violation of the navigation rule caused the boating accident.  In a citation of the statute based on a violation of Navigation Rule 5 (look-out), where the State failed to establish a prima facie case that Appellant violated Navigation Rule 5 or that the cited violation of Rule 5 caused the boating accident. Appellant was entitled to a judgment of acquittal.  Reversed and remanded.  Robert J. Baltrunas v. State, Appeal No. 08-00075 APANO (Fla. 6th Cir.App.Ct. August 31, 2009). 

County Criminal Court: CRIMINAL LAW – Evidence – hearsay & prior conviction – The trial court erred in allowing a law enforcement officer to testify, over objection, that dispatch sent him to a “burglary in progress”.  The trial court also erred in allowing the Appellant’s criminal history to go before the jury under the circumstances.  A defense witness testified as to certain statements made by Appellant.  Those statements were not assertions and were not hearsay.  A State witness had previously placed the essence of those statements in evidence; the statements were not disputed and were not exculpatory.  Even if the statements were hearsay and the credibility of Appellant could therefore be attacked pursuant to Florida Statute § 90.806, the admission of evidence of Appellant’s criminal history was still too prejudicial. § 90.403, Fla. Stat. (1976).– Reversed and remanded.  Carl Singleton v. State, Appeal No.08-00060APANO (Fla. 6th Cir.App.Ct. August 12, 2009).

County Criminal Court: CRIMINAL LAW – Evidence – Sentencing –Defendant’s incriminating statements to the victim were properly admitted into evidence, corpus delicti was independently established.  Corpus delicti has been defined as “the fact that a crime has actually been committed, that someone is criminally responsible.”  In the absence of an independently established corpus delicti, the state may not offer in evidence an out of court confession or admission against interest to establish one of the elements of the charged offense.To establish corpus delicti the state must prove by substantial evidence that a crime was committed.  Such proof may be in the form of circumstantial evidence. This standard does not require the proof to be uncontradicted or overwhelming, but it must at least show the existence of each element of the crime.  The identity of the defendant as the guilty party is not a necessary predicate for the admission of a confession.  As a prerequisite to the introduction of a confession, only need prima facie case of the corpus delicti.  Trial court correctly granted a judgment of acquittal on the charge of Criminal Mischief as a first degree misdemeanor because the State failed to prove the required amount of damage. Consequently, the case went to the jury as a second degree misdemeanor for which the Appellant was convicted.  The maximum probation period for Criminal Mischief, a second degree misdemeanor, is six months. The term of probation imposed by the Trial Court exceeded the statutory maximum. – Judgment affirmed; Sentence reversed.  Gail Laverne Smith v. State, Appeal No.08-00085APANO (Fla. 6th Cir.App.Ct. June 26, 2009).

County Criminal Court: CRIMINAL LAW – Evidence – admissibility – excited utterance.  CRIMINAL PROCEDURE – Prosecutorial comment.  Trial court has wide discretion concerning admissibility of evidence.  The rules of evidence limit that discretion.  If trial court mistakenly allows the introduction of inadmissible evidence, the appellate court must perform a harmless error analysis.  Statements given to officers under stressful situations can be excited utterances.  Such an excited utterance can be testimonial hearsay involving right of confrontation issues.  A specific contemporaneous objection citing the violation of the right of confrontation is necessary to preserve a Crawford challenge.  In the present case the testimony introduced in error was duplicated by the testimony of others and, with one exception, was not in dispute.  The error was harmless.  In closing argument, attorneys are required to refrain from expressing personal opinion as to the credibility of a witness.  However an attorney is allowed to argue reasonable inferences from the evidence including the credibility of witnesses so long as the argument is based on the evidence.  Trial court’s judgment and sentence affirmed.  Stunzig v. State, No. CRC07-00057APANO (Fla. 6th Cir.App.Ct. April 3, 2009).

County Criminal Court: CRIMINAL LAW --- Evidence – Judgment of Acquittal – Character evidence.  Abandonment is not an element of violation of §828.13(2)(a), Florida Statutes, concerning unlawful confinement of animals.  De novo standard applies to appellate court’s review of trial court decision on motion for judgment of acquittal.  Competent, substantial evidence supported the trial court’s decision.  Trial court’s decision on the admission of evidence is reviewed under the abuse of discretion standard.  Witnesses were properly excluded from testifying about character as the witnesses could not address appellant’s alleged reputation in the community for the love and care of animals, and as reputation was not an essential element of the charges.  Trial court’s orders denying motions for judgment of acquittal and excluding witnesses affirmed.  Howard v. State, No CRC 08-00011APANO (Fla. 6th Cir.App.Ct. January 14, 2009).

County Criminal Court: CRIMINAL LAW --- Evidence --- Exclusionary rule --- Organic law --- Separation of Powers --- Enactment of § 322.202, Fla. Stat. prohibiting application of the exclusionary rule to records of DMV, DDL, and DHSMV, did not violate organic law and did not violate doctrine of separation of powers.  Order affirmed.  Small v.  State, No. CRC 07-00071APANO (Fla. 6th Cir. App. Ct. August 21, 2008).

County Criminal Court: CRIMINAL LAW- Evidence- DISORDERLY CONDUCT-the only evidence presented was that appellant yelled, cussed or used abusive language-no evidence that the words used  were “fighting words” or words that would tend to incite an immediate breach of the peace- the state failed to present any evidence that appellant engaged in any physical conduct toward the alleged victim-no other evidence that appellant breached the peace or otherwise incited others to act. Evidence insufficient to support the disorderly conduct conviction . Order reversed.  McKenna v. State, 052887CFAES (Fla.6h Cir. App. Ct. April 12, 2007).

County Criminal Court: CRIMINAL LAW - Evidence - There was sufficient evidence to support the finding that the defendant violated §316.2397(1) where he drove a motorcycle that had a red light visible from the front. Judgment and sentence affirmed. Guanciale v. State, No. CRC 06-12 APANO, (Fla. 6th Cir. App.Ct. January 22, 2007).

County Criminal Court: CRIMINAL LAW –Evidence – Evidence sufficient to support a denial of a JOA. Judgment and sentence affirmed. Soler v. State, No. CRC 05-26 APANO, (Fla. 6th Cir.App.Ct. November 17, 2006).

County Criminal Court: CRIMINAL LAW- Evidence- trial court did not error in granting defendant's  motion for judgment of acquittal after jury verdict of guilty- felonious intent must exist at the time of taking--to prove specific felonious intent, the state can rely on circumstantial evidence, but such circumstantial evidence must exclude every reasonable hypothesis but that of guilt-state failed to establish felonious intent. Order Affirmed. State v. Relford, No. 051938CFAES (Fla. 6th Cir. App. Ct. February 15, 2006).   

County Criminal Court: CRIMINAL LAW- Evidence- trial court erred in finding the statements admissible as excited utterance-essential elements necessary to fall within the excited utterance exception are that (1) there must be an event startling enough to cause nervous excitement; (2) the statement must have been made before there was time to contrive or misrepresent; and (3) the statement must be made while the person is under the stress of excitement caused by the event.  Here, victim  had time to 'reflect' as she clearly thought about the alleged incident-additionally, there is no evidence to establish when the alleged incident occurred as to prove victim was under the stress or excitement caused by the event.  Order reversed.  Williamson v. State, CRC051460CFAES, (Fla.6h Cir. App. Ct. January 31, 2006).

County Criminal Court: CRIMINAL LAW- Evidence- trial court did not error in finding defendant's statements inadmissible since statements  were the product of a custodial interrogation and she was not advised of her Miranda rights- trial court did not error in suppressing the results of the breath test- trial court made the specific finding that the defendant was required by trooper to take a breath test prior to her arrest for DUI.  Order affirmed. State v. Conner, 0502525CFAES (Fla. 6th Cir. App. Ct. January 31, 2006).

County Criminal Court: CRIMINAL LAW- Evidence- trial court did not error in denying appellant's motion for judgment of acquittal - jury heard evidence that the appellant had various drugs in his system; although appellant argued that he was tired and that this was a reasonable hypothesis of innocence, evidence that a defendant was driving, had controlled substances in a urine test which could cause impairment combined with a low or no alcohol level, and was observed to be impaired at the scene after the driving is sufficient to establish a case of Driving Under the Influence-.the state established a prima facie case of the charged offense prior to resting and as a result, the appellant's motion for judgment of acquittal was properly denied. Additionally, state's argument that the defense "just didn't add up" was pure rebuttal. Neither this statement nor any other statement made by the state shifted the burden of proof -Order affirmed. Broco v. State, CRC0405631CFAES, (Fla. 6th Cir. App. Ct. October 31, 2005).

County Criminal Court: CRIMINAL LAW- Evidence- trial court did not error in denying appellant's motion for judgment of acquittal - the state established a prima facie case of the charged offense prior to resting and as a result, the appellant's motion for judgment of acquittal was properly denied-even if defense renewed motion, evidence was still sufficient-when sitting as the trier of fact, the trial judge has the "superior vantage point to see and hear the witnesses and judge their credibility- a judgment of conviction is presumed correct and a defendant’s claim of sufficiency of the evidence cannot prevail where there is substantial competent evidence to support the verdict-Order affirmed. Harris v. State, No. 04-2578CFAES (Fla. 6th Cir. App. Ct. February 15, 2005 ).

Field Sobriety Test

County Criminal Court: CRIMINAL LAW – Field Sobriety Test – Trial court erred in granting Appellee’s motion to suppress.  When Appellee was given field sobriety tests, Pinellas County Sheriff’s Office did not videotape a horizontal gaze nystagmus (HGN) test, in accordance with Sheriff’s Office policy.  Trial court granted motion to suppress regarding HGN test, ruling that testimony about a test intentionally not recorded could not be presented.  But law enforcement had no duty to conduct investigation a particular way and was not required to tape all HGN tests; further, case did not involve bad faith by law enforcement or loss or destruction of evidence, and Appellee was not precluded from cross-examining law enforcement concerning the test.  Order granting motion to suppress reversed.  State v. Hastings, No. 12-00046APANO (Fla. 6th Cir. App. Ct. February 26, 2013).

County Criminal Court:  CRIMINAL LAW – Field Sobriety Test -&- CRIMINAL PROCEDURE – Jurors.  In a case involving a charge of DUI, the horizontal gaze nystagmus (HGN) test results alone, in the absence of a chemical analysis of blood, breath, or urine, are inadmissible to trigger the presumption provided by Florida Statute § 316.1934, and may not be used to establish a blood alcohol content (BAC) of 0.08 percent or more.  However, HGN test results are admissible independent of chemical tests, they are one piece of evidence that the jury may consider in determining whether the defendant was impaired under Florida Statute § 316.193(1)(a).   HGN test results are admissible in evidence once a proper foundation has been laid that an officer who was properly trained and qualified to administer an HGN test correctly administered the test. The officer does not have to be certified as a Drug Recognition Evaluator.
In jury selection, to the extent hypothetical questions involve the facts of the case they are not allowed.  However, the law is otherwise where the hypothetical does not include the facts of the case.  A hypothetical question making a correct reference to the law of the case to aid in determining the qualifications or acceptability of a prospective juror may be permitted by the trial judge in the exercise of sound judicial discretion.  Judgment and sentence affirmed.  Charles Edward Engelman v. State, No. CRC 08-00051 APANO (Fla. 6th Cir.App.Ct. June 3, 2009).

County Criminal Court: CRIMINAL LAW – Field Sobriety Test – HGN (horizontal gaze nystagmus test) admissible to prove impairment without corroborating blood, breath, or urine test. However, police must first introduce evidence of test conductor’s qualifications. In this case, there was such testimony. Order suppressing evidence reversed. State v. Brooks, No. CRC 05-67 APANO, (Fla. 6th Cir.App. Ct. July 17, 2007).

DUI suspects' refusal to submit to pre-arrest field sobriety tests are admissible in evidence. State v. Linden, No. CRC 94-5948 CFANO (Fla. 6th Cir. Ct. Feb. 7, 1995).

Jury Trial -- Evidence

County Criminal Court:  CRIMINAL LAW—Jury Trial—Evidence.  After conducting a full and independent review of the record, this Court finds no arguable issue for appeal in this case.  The record in this case supports the denial of Appellant’s motion for judgment of acquittal, and the judgment and sentence are supported by competent, substantial evidence.  Affirmed.  Jeffrey Hensley v. State of Florida, No. 13-CF-3135-WS (Fla. 6th Cir. App. Ct. September 30, 2014).

County Criminal Court: CRIMINAL LAW – Jury Trial – Evidence – Trial court did not abuse its discretion in permitting State Attorney to cross-examine Appellant’s expert witness concerning previous prosecution of expert witness by State Attorney’s Office.  Sec. 90.608(2), Fla. Stat., allows any party to attack the credibility of a witness by showing bias, and courts have granted wide latitude in questioning witnesses about possible bias or motive if not unfairly prejudicial.  Judgment and sentence affirmed, with dissenting opinion.  Thomas v. State, No. 11-00060APANO (Fla. 6th Cir. App. Ct. September 11, 2012).

County Criminal Court: CRIMINAL LAW — Jury Trial — Evidence — The trial court did not abuse its discretion in admitting statements made by Appellant to law enforcement.  Trial court’s order denying motion in limine affirmed.  Hector Antonio Guzman v. State of Florida, No. CRC10-006828-CFAWS (Fla. 6th Cir. App. Ct. July 27, 2011).

County Criminal Court: CRIMINAL LAW – Jury trial – Evidence – Trial court did not err in denying motion for judgment of acquittal where Appellant argued he was illegally arrested before being given an opportunity to explain himself under the loitering and prowling statute.  Appellant was initially arrested for attempted burglary and later charged with loitering and prowling.  Law enforcement had probable cause to make arrest for attempted burglary, and Appellant was given a chance to explain himself prior to arrest; Appellant’s detention and subsequent arrest were lawful.  Trial court’s judgment and sentence affirmed.    Garcia v. State, No. CRC10-00046APANO (Fla. 6th Cir. App. Ct. April 28, 2011).

County Criminal Court: CRIMINAL LAW – Jury trial – Evidence – Trial court erred in granting judgment of acquittal after jury convicted Appellant of possession of marijuana when convictions were supported by competent, substantial evidence; circumstantial evidence was sufficient to show proof of Appellant’s knowledge of marijuana’s presence when viewed in light most favorable to the State.  Reversed and remanded.  State v. Wooten, No. CRC10-00048APANO (Fla. 6th Cir. App. Ct. March 1, 2011).

County Criminal Court: CRIMINAL LAW — Jury Trial/Evidence — Appellants arguments that the trial court erred by not granting a mistrial following witness testimony, admitting hearsay, and denying motion for judgment of acquittal lack merit.  Trial court’s judgment and sentence affirmed.  Donald Clifford West v. State of Florida, No. CRC08-003553-CFAES (Fla. 6th Cir. App. Ct. November 2, 2010).

County Criminal Court: CRIMINAL LAW — Jury Trial/Evidence — Prior bad acts — Since defense indicated that neither intent nor identity would be disputed at trial, the State would not be allowed to present their Williams Rule witness unless the defense used either defense at trial.  Trial court’s order sustaining defense objection affirmed.  State of Florida v. Gunwant S. Dhaliwal, No. CRC09-003030-CFAWS (Fla. 6th Cir. App. Ct. October 19, 2010).

County Criminal Court: CRIMINAL LAW – Jury Trial - Evidence – Jury Questions – In a DUI trial, during jury deliberations, a juror who was a medical doctor asked the court two questions. “Number one, may I use my medical knowledge specifically regarding alcohol levels, degradation of alcohol, et cetera in reaching my personal verdict?  And, two, if asked by other jurors who have learned I'm a doctor, can I share my knowledge with them?”  The trial court’s answer—“You are free to rely upon your own personal knowledge and experience in reaching your verdict and in discussing the case with other jurors.  However, the case must be tried by you only on the evidence presented during the trial in your presence and in the presence of the defendant, the attorneys, and the judge.  Jurors must not conduct any investigation of their own.”—was neither an abuse of discretion nor a misstatement of Florida legal precedent.  It was not an abuse of discretion for the trial court to allow the arresting officer to testify as to his opinion that Appellant was under the influence of alcohol to the extent that his normal faculties were impaired; lay witnesses have been permitted not only to testify as to their observations of a defendant's acts, conduct, appearance and statements, but also to give opinion testimony of impairment based on their observations.    William Allen Armstrong .v State, Appeal No. 08-00081APANO (Fla. 6th Cir.App.Ct. September 4, 2009).  

County Criminal Court : CRIMINAL LAWJury Trial/Evidence – Prior bad acts – Inquiry of a witness about the defendant’s prior bad acts was proper where the defendant opened the door to the line of questioning and the witness’s answers would have left the jury with incomplete and misleading information.  Resulting testimony was not inadmissible character evidence in violation of §90.404(1) Fla. Stat.  Trial court’s judgment and sentence affirmed.  Satiny v. State, No. CRC08-00048APANO (Fla. 6th Cir.App.Ct. March 4, 2009).

County Criminal Court: CRIMINAL LAW- trial may continue where defendant voluntarily absents himself after the start of a trial-neither the rules nor case law require the State to prove, or the court to find, that such absence is voluntary before proceeding with the trial. While state may have improperly gone beyond the evidence to argue that the defendant suborned perjury, no  fundamental error in light of the entire record. Order of the trial court affirmed.  Weber v. State, No. CRC 07-05619CFAWS (Fla. 6th Cir. App. Ct. January 22, 2009).  

County Criminal Court: CRIMINAL LAW-Jury Trial-Evidence- trial court did not error in denying appellant's motion for judgment of acquittal - there was no prima facie showing or evidence of acting in self-defense, the State of Florida was under no burden of disproving self-defense ; before the Defendant can assert entitlement to the jury instruction of justifiable use of non-deadly or deadly force, there must first be evidence of self-defense. Prosecutor’s comments, even if error, were harmless. Order affirmed. Larney v. State, No. CRC  073939CFAWS (Fla. 6th Cir. App. Ct. January 7, 2009 ).

County Criminal Court: CRIMINAL LAW --- Jury Trial Evidence --- Corpus delicti rule met where witness testified he saw defendant racing; motion for judgment of acquittal properly denied where defendant admitted racing. Judgment and sentence affirmed. Neumann v. State, No. CRC 06-69 APANO (Fla. 6th Cir. App. Ct. May 29, 2008).

County Criminal Court: CRIMINAL LAW --- Jury Trial – Evidence --- No error in limiting questions where defendant’s theory of the case was presented numerous times via several witnesses; any more testimony would have been cumulative. Any error would have been harmless where defendant admitted possession of the marijuana. Judgment and sentence affirmed. Yardy v. State, No. CRC 07-25 APANO, (Fla. 6th Cir. App. Ct. April 7, 2008).

County Criminal Court : CRIMINAL LAW --- Jury trial - Evidence --- Motion for judgment of acquittal should have been granted in defendant’s trespassing case where State failed to demonstrate that the defendant was on the property of another. Judgment and sentence reversed. O’Neill v. State, No. CRC 06-31 APANO, ( Fla. 6th Cir. App.Ct. March 28, 2008).

County Criminal Court: CRIMINAL LAW – Jury Trial – Evidence – Intent a jury question in this case because there was sufficient circumstantial evidence. JOA properly denied. Judgment and sentence affirmed. Lavoie v. State, No. CRC 07-20 APANO (Fla. 6th Cir. App. Ct. October 29, 2007).

County Criminal Court: CRIMINAL LAW – Jury trial – Terms of subsequent final judgment of dissolution concerning contact with ex-wife superseded terms of prior injunction. Therefore, JOA should have been granted. Judgment and sentence reversed. Lagesse v. State, No. CRC 06-25 APANO, (Fla. 6th Cir. App. Ct. June 20, 2007).

County Criminal Court: CRIMINAL LAW – Jury trial evidence – Defendant’s testimony did not open door justifying State’s inquiry into defendant’s previous arrest. Judgment and sentence reversed. White v. State, No. CRC 04-17 APANO, ( Fla, 6th Cir.App.Ct. March 15, 2006).

County Criminal Court: CRIMINAL LAW – Jury trial – evidence. Defendant was never arrested or lawfully detained when officer spoke with defendant at the door of her house; therefore, she could not be guilty of violating 901.36 --- falsely identifying herself to a law enforcement officer. Judgment and sentence reversed. Sabrina Garrett v. State, No. CRC 05-35 APANO, (Fla. 6th Cir.App.Ct. Feb. 21, 2006).

County Criminal Court: CRIMINAL LAW – Jury trial – Evidence – Although defendant driver of car argued that the marijuana was the passenger’s (who escaped), he was properly convicted of possession of marijuana because there was evidence he admitted smoking the marijuana and the marijuana was found burning on the driver’s seat where the defendant’s leg would have been resting. Judgment and sentence affirmed. Hester v. State, No. CRC 05-14 APANO, (Fla. 6th Cir.App.Ct. Sept. 26, 2005).

County Criminal Court: CRIMINAL LAW- Jury trial/evidence- New trial- trial court's failure to apply the correct legal standard to a motion for new trial is a legal error subject to de novo review- not clear whether or not the trial court concluded the verdict was against the weight of the evidence- cause must be reversed and remanded to the trial court to reconsider the weight of the evidence-affirmed in part, reversed in part, remanded. Walker v. State, No.04-02615CFAES (Fla. 6th Cir. App. Ct. February 15, 2005 ).

County Criminal Court: CRIMINAL LAW-Jury Trial/Evidence-where evidence tends in any way to establish a reasonable doubt of defendant's guilt, it should be admitted-since it can not be said that exclusion of the evidence at issue did not affect the verdict, the exclusion was harmful-Judgment and sentence reversed. Garcia v. State, No. 03-00049. (Fla. 6th Cir. App. Ct. January 31, 2005).

County Criminal Court: CRIMINAL LAW – Jury Trial – Evidence – Conviction for possession of marijuana upheld where in a jointly occupied vehicle there was independent proof that the defendant was aware of the marijuana and had an ability to control it. Judgment and sentence affirmed. Green v. State, No. CRC 03-37 APANO, (Fla. 6th Cir.App.Ct. Jan. 20, 2005).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Evidence - Even though the defendant testified that he did not give the police permission to enter his home, exigent circumstances of a recent gunshot, reports of shots being fired inside the house, and the possibility that those responsible were still inside the house provided justification for the police to enter the house. – Judgment and sentence affirmed. Slaughter v. State, No. CRC 04-27 APANO (Fla. 6th Cir. App. Ct. Dec. 7, 2004).

County Criminal Court: CRIMINAL LAW-Jury Trial-Evidence- trial court did not error in denying appellant's motion for judgment of acquittal - the state is not required to "rebut conclusively every possible variation" of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant's theory of events-in reviewing a finding of a jury trial, a judgment of conviction is presumed correct and a defendant’s claim of sufficiency of the evidence cannot prevail where there is substantial competent evidence to support the verdict-Order affirmed. Arce v. State, No. 04-00038. (Fla. 6th Cir. App. Ct. November 23, 2004 ).

County Criminal Court:  CRIMINAL LAW – Jury Trial - Unlicensed Specialty Contracting – no error in denying defendant’s motion to dismiss – State is not required to traverse motion not filed pursuant to Rule 3.190(c)(4) – record shows prosecution was timely commenced within 2-year statute of limitations – no abuse of discretion in denying defendant’s motion to continue trial – no abuse of discretion in the amount of damages awarded -- Judgment affirmed.  Southerland v. State, No. 01-02021 CFANO (Fla. 6th Cir. App. Ct. June 16, 2004).

County Criminal Court: CRIMINAL LAW – Jury trial – Introduction of certain cell phone evidence harmless error under the facts of this case. -  Introduction of evidence of defendant’s probationary status not error under the facts of this case.  – Judgment affirmed. Arundel v. State, No. 03-1 APANO (Fla. 6th Cir. App. Ct. Feb. 4, 2004).

County Criminal Court: CRIMINAL LAW – Jury Trial/Evidence- Faretta Hearing – trial court did not err in appointing a public defender to represent the defendant without conducting a full evidentiary hearing – trial court has broad discretion in limiting examination of witnesses – prosecution for offense of DUI may be based on two legitimate theories of guilt – sentence supported by competent, substantial evidence.  Judgment and Sentence affirmed.  Julien v. State, No. 03-169 (Fla. 6th Cir. App. Ct. Dec. 17, 2003).

County Criminal Court:  CRIMINAL LAW – Jury Trial/Evidence – hearsay – trial court did not err in admitting officer’s statements of what accuser reported to officer – statements were not offered to prove truth of the matter but rather to show effect on listener – statements were relevant as State was required to show that officer was engaged in lawful execution of a legal duty – Conviction affirmed.  Thomas v. State, No. 02-17298 (Fla. 6th Cir. App. Ct. June 16, 2003).

 County Criminal Court:  CRIMINAL LAW – Jury Trial/Evidence – admission into evidence of post-arrest statements – trial court did not err in admitting post-arrest statements into evidence – statements were relevant as State was required to show that defendant was continually engaged in escape behavior – statements were properly admitted as admissions or statements against interest – even if statements were improper, the effect was harmless in light of other evidence adduced – Conviction affirmed.  Thomas v. State, No. 02-17298 (Fla. 6th Cir. App. Ct. June 16, 2003).

 County Criminal Court:  CRIMINAL LAW – Jury Trial/Evidence – sufficiency of evidence – prosecution for violation of injunction for protection against domestic violence and criminal mischief – testimony of ex-wife and friend that appellant approached and tried to talk to ex-wife upon leaving sports bar was sufficient evidence to prove prima facie case for violating injunction – testimony of ex-wife that appellant reached for knife, bent over near her car, after which she heard tires deflating and saw appellant fleeing, and testimony of friend concerning appellant’s admission to slashing ex-wife’s tires, was sufficient to prove prima facie case for criminal mischief – Conviction affirmed.  Matthews v. State, No. 01-19588 (Fla. 6th Cir. App. April 28, 2003).

County Criminal Court:  CRIMINAL LAW – Jury Trial/Evidence - admission of prior bad acts – anticipatory rehabilitation – admission of statement that appellant was on house arrest or probation – improper closing argument – trial court erred in admitting evidence – no error to admit uncharged conduct occurring at time of instant offense under inextricably intertwined theory – error to admit prior battery offense under theory of anticipatory rehabilitation – State exceeded parameters of anticipatory rehabilitation – improper to admit evidence that appellant was on probation – State’s inflammatory comments during closing arguments were improper as they invited jury to make a finding of guilty for reason other than evidence presented – Conviction reversed; case remanded for new trial.  Wolfe v. State, No. 01-09319 (Fla. 6th Cir. App. Ct. April 28, 2003).

County Criminal Court: CRIMINAL LAW – Jury Trial/Evidence – Sufficiency of evidence- Venue- Identification – substantial, competent evidence was presented to support the findings of magistrate of defendant’s identification – venue is sufficiently proved is jury can reasonable infer from the evidence that the crime was committed in the alleged jurisdiction.  Judgment and Sentence affirmed.  Zomekka v. State, No. 03-19 (Fla. 6th Cir. App. Ct. April 3, 2003).

County Criminal Court: CRIMINAL LAW – Jury Trial/Evidence- sufficiency of evidence- prosecution for battery-testimony of two police officers that they observed the defendant push the victim in the chest was sufficient to prove prima facie case for battery-conviction affirmed.  Hall v. State, No.: 03-18 (Fla. Cir. App. Ct. April 3, 2003).

County Criminal Court: CRIMINAL LAW – Jury Trial/Evidence – Hearsay - Expert Witness - Court did not abuse its discretion by ruling the witness did not qualify as an expert witness.  Testimony was hearsay and subject to hearsay objections.  Judgment and Sentence affirmed.  Sciandra v. State, No. 02-82 (Fla. 6th Cir. App. Ct. Nov. 14, 2002).

 

County Criminal Court: CRIMINAL LAW – Jury Trial/Evidence – Sufficiency of the Evidence- There was substantial, competent evidence to support the verdict that defendant was in violation of Fla. Stat.§316.2065.  Judgment and sentence affirmed.  Cooper v. State No. 02-85 (Fla. 6th Cir. App. Ct. Nov. 14, 2002).

County Criminal Court: CRIMINAL LAW – Jury Trial/Evidence – Absent fundamental error, an appellate court will not consider an issue raised for the first time on appeal, a legal argument must be initially raised at the trial court level by the presentation of a specific motion or objection at an appropriate stage of the proceedings.  Judgment and Sentence affirmed.  Murray v. State, No. 02-85 (Fla. 6th Cir. App. Ct. Sept. 25, 2002).

There was no factual foundation to support the assertion that as mental healthcare providers the victims would be less likely to be offended by the defendant’s actions.  Whether as mental healthcare providers they may have observed similar behavior is not relevant to whether they were offended in this case.  Therefore, there was no abuse of discretion by the trial judge in excluding testimony regarding the victim’s occupations.  Wilson v. State, No. CRC 00-14320 CFANO (Fla. 6th Cir. Ct. June 5, 2001).

A corrections officer corporal who testified for the State that he worked in corrections, south division in maximum security was simply identifying the defendant’s location in the Pinellas County Jail facility.  The statements were not offered for the sole reason to attack the credibility of the defendant and suggest his propensity to commit crimes. Therefore, the trial court did not abuse its discretion by ruling that the corporal’s testimony did not unduly prejudice the defendant. Wilson v. State, No. CRC 00-14320 CFANO (Fla. 6th Cir. Ct. June 5, 2001).

The trial court improperly invaded the province of the jury as the proper trier of fact when it found that a field 100 yards away from the scene of the crash, where the defendant stopped, was the closest place the defendant could have stopped his vehicle without obstructing traffic because there existed material disputed facts as to whether or not the defendant’s stop and subsequent actions were in compliance with Fla. Stat. Sec. 316.061.  State v. Lord, No. CRC 00-05378 CFANO (Fla. 6th Cir. Ct. January 8, 2001).

Evidence presented at trial was legally sufficient on which to base a guilty of battery verdict where in addition to the admissible testimony of what officers saw and heard, a 911 tape and photographs of the victim depicting a fresh scratch on the cheek were entered into evidence. Pitts v. State, No. CRC 99-19661 CFANO (Fla. 6th Cir. Ct. October 5, 2000).

It was not reversible error to exclude from a case involving allegations of excessive force during an arrest evidence that the arresting officer had previously received a warning for rough housing with another police officer while at the police station. Sokol v. State, No. CRC 95-3406 CFANO (Fla. 6th Cir. Ct. Feb. 23, 1996).

The trial court's failure to require elimination of those portions of the record showing the defendant's prior traffic infractions and suspensions was error. The error, however, was harmless because the evidence of the defendant's guilt was overwhelming. Parmenter v. State, No. 95-1924 CFAES (Fla. 6th Cir. Ct. May 29, 1996).

Evidence of acts committed by the defendant after the alleged battery was properly admissible because the defendant had opened the door by alleging the victim had fabricated her story. The probative value of the evidence was not outweighed by prejudice to the defendant. Schneide v. State, No. CRC 96-1029 CFANO (Fla. 6th Cir. Ct. Sept. 18, 1996).

Although the defendant should have been allowed to offer as permissible witness rehabilitation testimony that he had committed prior crimes but was making restitution on them, the lack of testimony had no effect on the outcome of the trial. Richards v. State, No. CRC 95-12663 CFANO (Fla. Cir. Ct. Sept. 23, 1996).

The trial court correctly ruled that the defendant could not comment on what the second police officer's testimony may have been if he were a witness at trial. Trimboli v. State, No. CRC 95 17050 CFANO (Fla. 6th Cir. Ct. September 27, 1996).

Probation

County Criminal Court: CRIMINAL LAW – Probation - Trial court erred in denying motion to discharge.  Trial court was without jurisdiction to sentence Appellant for violating his one year term of probation for a first-degree misdemeanor after the court accepted Defendant’s admission, then continually postponed sentencing for nearly twenty months; well beyond the maximum probation term. Appellant’s probation was not terminated or modified before the one year term expired, at which point the court was divested of all jurisdiction over Appellant. Order denying motion to discharge reversed; case remanded to trial court for immediate discharge. Witteck v. State, No. 13-00060APANO (Fla. 6th Cir. App. Ct. March 6, 2014).

County Criminal Court: CRIMINAL LAW – Probation – The Florida Parole Commission did not abuse its discretion in revoking Petitioner’s parole.  Petitioner’s Petition for Writ of Certiorari is denied.  Michael S. Donovan v. Florida Parole Commission, No. 2011-CA-000575-WS, (Fla. 6th Cir.App.Ct. June 11, 2012).

County Criminal Court: CRIMINAL LAW – Probation – The trial court did not err in finding that Appellant willfully and substantially violated the terms of his probation. Affirmed.  Klod v. State, No. CRC0802718CFAWS, (Fla. 6th Cir.App.Ct. January 3, 2011).

County Criminal Court: CRIMINAL LAW – Probation – Evidence sufficient to justify order revoking probation where there was evidence other than hearsay evidence in the form of the appellant’s own admissions and testimony.  Additionally, Crawford does not apply to revocation of supervised release hearings. Order revoking probation affirmed. Jahosky v. State, CRC 070179CFAWS, (Fla. 6th Cir. App. Ct. August 22, 2008).

County Criminal Court: CRIMINAL LAW – Probation --- Condition of probation requiring defendant who was an illegal resident to use best efforts to obtain driver’s license did not require defendant to obtain a Mexican driver’s license, and evidence showed defendant’s minimal attempts at getting a license  were his best efforts because DMV would not give driver’s license to illegal resident. Order revoking probation reversed. Oriano v. State, No. CRC 07-35 APANO, ( Fla. 6th Cir. App. Ct. Feb. 25, 2008).

County Criminal Court: CRIMINAL LAW – Probation – Under the applicable older statute, the defendant should have been given credit for time spent on probation up until the time of his resentencing. Order denying defendant’s motion to correct sentence reversed with instructions to grant motion. Toca v. State, No. CRC 06-39 APANO (Fla. 6th Cir.App. Ct. October 26, 2007).

County Criminal Court: CRIMINAL LAW – Probation – Evidence sufficient to justify order revoking probation where evidence showed defendant violated his business-purposes-only driver’s license by driving to go fishing. Order revoking probation affirmed. Fisher v. State, No. CRC 06-47 APANO, (Fla. 6th Cir. App. Ct. June 25, 2007).

County Criminal Court:  CRIMINAL LAW –Probation-– trial judge did not err in finding appellant violated probation; remand for entry of written order- when probation is revoked or modified, a written order must be entered by the trial court reciting the specific violations found.  imposing $20,775.00 in restitution on first-degree battery conviction – said amount of restitution was. Affirm revocation of probation; remand for entry of written order. Emery v. State, No. 0504832CFAES. ( Fla. 6th Cir. App. Ct. June 20, 2006).

Restitution

County Criminal Court: CRIMINAL PROCEDURE – Restitution – Trial court did not err in ordering that Appellant pay restitution to City of St. Petersburg when Appellant’s criminal activity caused property damage to City.  When a governmental entity incurs financial loss because it is the victim of criminal activity, it is properly considered a victim for purposes of restitution under § 775.089, Fla. Stat.
Order of restitution affirmed.  Chabre v. State, No. 12-00012 (Fla. 6th Cir. App. Ct. July 11, 2012).

County Criminal Court : CRIMINAL LAW – Restitution – the State must establish both causation and the amount of loss or damages by a preponderance of the evidence- the cause of the accident was the other driver’s failure to yield the right of way and not the defendant’s intoxication. Order imposing restitution reversed.  Rady v. State, No. 0604476CFAWS, (Fla. 6th Cir.App.Ct. May 1, 2007).

County Criminal Court : CRIMINAL LAW – Restitution – Abuse of discretion for trial court to delete restitution as a sanction for State failing to determine amount of restitution within this particular time. Order deleting restitution reversed. State v. Vizaro, No. CRC 05-2 APANO, (Fla. 6th Cir.App.Ct. March 9, 2006).

County Criminal Court: CRIMINAL LAW – Restitution. When State set a restitution hearing but failed to subpoena the defendant or witnesses and failed to seek a continuance when it discovered the error, it was not error for the trial court to delete restitution. Deletion of restitution affirmed. State v. Liuzza, No. CRC 05-38 APANO, (Fla. 6th Cir.App.Ct. Feb. 10, 2006).

County Criminal Court:  CRIMINAL LAW – restitution – trial judge did not err in imposing $20,775.00 in restitution on first-degree battery conviction – said amount of restitution was paid out by Crimes Compensation Trust Fund for injuries causally connected to battery – no error in trial court’s presumption that amount paid by Crimes Compensation Trust Fund is a debt due and owing the State unless sufficiently rebutted by defendant – testimony and evidence established sufficient nexus between amount of loss sustained by victim and appellant’s actions – amount of restitution did not violate plea agreement.  Order of restitution affirmed.  Montgomery v. State, No. 01-02675CFANO ( Fla. 6th Cir. App. Ct. April 28, 2003).

Search and Seizure -- Miranda

County Criminal Court: CRIMINAL LAW --- Search and Seizure --- Miranda --- Traffic stop and issuance of a citation for a criminal traffic offense did not place the appellants “in custody” and therefore Miranda warnings were not required and the appellants’ statements made during the stop were admissible.  Procedural requirements for motions to suppress discussed.  Order reversed.  State v. Schmotzer, No. CRC 07-00052APANO and State v. Carpenter, No. CRC 07-00053APANO (Fla. 6th Cir. App. Ct. June 26, 2008).

The police crossed the threshold of the defendant’s residence when they pushed open a closed screen door, grabbed the defendant, and questioned him in connection with a DUI investigation. Since the police crossed the threshold without a warrant, absent exigent circumstances, the investigation was improper. Champion v. State, CRC 00-3086 CFANO (Fla. 6th Cir.Ct. March 12, 2001).

A defendant seated in a mini-booth in an adult bookstore with the door slightly ajar, but kept from opening all the way by the defendant’s foot, had a reasonable expectation of privacy and subjective right of privacy, and therefore, the arresting officer did not have sufficient cause to use his observations to arrest the defendant.  Furthermore, the defendant was not in “plain view” because the detective took affirmative action by repositioning himself to view the defendant’s conduct by standing close to the door and peering through the crack.  State v. Vela, No. CRC 00-05092 CFANO (Fla. 6th Cir Ct. December 18, 2000).

Individuals who are the subject of ordinary traffic stops, even ones that involve field sobriety tests, are not in custody for the purpose of being Mirandized. State v. Baughman, No. CRC 94-2020 CFANO (Fla. 6th Cir. Ct. May 15, 1995).

Because roadside stops are generally not custodial, the privilege against self-incrimination was not violated by allowing into evidence the defendant's statement that he had been at an all-day party at his country club. State v. Smith, No. CRC 94-11909 CFANO (Fla. 6th Cir. Ct. July 21, 1995).

Search and Seizure -- Evidence

County Criminal Court: CRIMINAL LAW – Search and Seizure – Evidence – The trial court erred in granting Appellee’s motion to suppress since the evidence would have been inevitably discovered. Case remanded. State of Florida v. Justin Edward Peters, No. CRC1207215CFAWS (Fla. 6th Cir. App. Ct. September 3, 2013). 

County Criminal Court: CRIMINAL LAW – Search and seizure – Evidence – Trial court erred in denying motion to suppress evidence.  Officer observed Appellant, apparently asleep, in driver’s seat of running vehicle; officer knocked on window until Appellant awoke and motioned for Appellant to roll window down.  After Appellant complied, officer noted smell of alcohol and conducted a DUI investigation.  Appellant submitted to show of authority by rolling window down, resulting in a seizure and detention rather than a consensual encounter.  Because officer did not have reasonable suspicion necessary to authorize an investigatory stop, the detention was illegal.  Order denying motion to suppress reversed; judgment and sentence reversed; case remanded.  Cieslak v. State, CRC11-00035APANO (Fla. 6th Cir. App. Ct. April 11, 2012).

County Criminal Court: CRIMINAL LAW – Search and seizure – Evidence – Trial court did not err in denying motion to suppress evidence.  Law enforcement executed valid search warrant for marijuana in a home where Appellant was present.   Based on search results of marijuana in plain view and smell of marijuana throughout home, law enforcement could reasonably suspect Appellant was involved in illegal activity that was the subject of the search warrant and had probable cause to arrest and search Appellant.  Order denying motion to suppress affirmed.  Brinkley v. State, No. 11-00042APANO (Fla. 6th Cir. App. Ct. April 11, 2012).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Evidence – Trial court did not err in denying Appellant’s motion to suppress evidence in DUI case.  Following consensual encounter between law enforcement and Appellant, who was sitting in parked car, officer’s observations of signs of impairment in Appellant, including odor of alcohol, slurred speech, and bloodshot eyes, provided reasonable suspicion sufficient to justify an investigatory stop.  Order denying motion to suppress affirmed.  Allen v. State, No. 11-00048APANO (Fla. 6th Cir. App. Ct. January 23, 2012).

County Criminal Court: Criminal Law – Search and Seizure –  Evidence – Trial court erred in granting motion to suppress evidence when officer, who had probable cause to believe Appellee was driving under the influence, observed oxycodone on driver’s seat; officer’s subsequent search of vehicle was a permissible “open view” search and a search incident to lawful arrest.  Trial court’s order granting motion to suppress reversed; matter remanded for further proceedings.  State v. Francis,No. CRC10-00032APANO (Fla. 6th Cir. App. Ct. December 16, 2010).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Evidence – Trial court erred in denying defendant’s motion to suppress officer’s statements concerning defendant’s criminal action when, during a search for a burglary suspect, officer looked through defendant’s apartment window and observed defendant’s crime, which was entirely unrelated to the burglary - officer’s observations through window violated defendant’s reasonable expectation of privacy - Reversed and remanded for new trial.  Rankin v. State, No. CRC09-00030APANO (Fla. 6th Cir. App. Ct. September 23, 2010).

County Criminal Court : CRIMINAL LAW – Search and Seizure --- Evidence --- trial court erred in denying motion to suppress - Since the defendant was neither under arrest or lawfully detained at the time he provided officer with a false name, he could not have been lawfully arrested- the search, pursuant to the defendant’s improper arrest was, in turn, improper and the evidence seized in the course of said search must be suppressed.  Order Denying Motion to Suppress reversed.  Wilson  v. State, No. CRC 08-00025CFAES (Fla. 6th Cir. App. Ct. January 5, 2009).

County Criminal Court: CRIMINAL LAW --- Search and Seizure --- Miranda – Order granting motion to suppress should not have been granted because record did not show defendant subject to custodial interrogation. Order granting motion to suppress reversed. State v. Koross, No. CRC 07-19 APANO, ( Fla. 6th Cir. App. Ct. March 31, 2008).

County Criminal Court: CRIMINAL LAW --- Search and Seizure --- DUI --- Corpus delicti met where evidence showed police received information from eyewitnesses that a green Jeep had just been in an accident with an ambulance, and the police located the Jeep, determined it was registered to the defendant, parked at the defendant’s address, and had damage consistent with damage done to the ambulance. Judgment and sentence affirmed. McCullough v. State, No. CRC 06-57 APANO, ( Fla. 6th Cir.App.Ct. March 11, 2008).

County Criminal Court : CRIMINAL LAW --- Search and Seizure --- Evidence --- Trial court’s order suppressing all statements made because of an unauthorized arrest, even those made pre-arrest, went too far. Order suppressing evidence reversed. State v. McGinnis, No. CRC 07-64 APANO ( Fla. 6th Cir.App.Ct. May 31, 2008).

County Criminal Court : CRIMINAL LAW – Search and Seizure --- Evidence --- Motion to suppress was properly denied because defendant did not have a reasonable expectation of privacy where he was a hold-over motel patron and motel management had contacted police for assistance. Judgment and sentence affirmed. Brewster v. State, No. CRC 06-87 APANO, ( Fla. 6th Cir. App. Ct. March 3, 2008).

County Criminal Court : CRIMINAL LAW --- Search and Seizure --- Evidence --- Hearsay testimony was permissible for trial court to consider in ruling on defendant’s motion to suppress even though witness did not have independent recollection of events. Order granting motion to suppress affirmed. Linsley v. State, No. CRC 06-55 APANO ( Fla. 6th Cir.App.Ct. Feb. 29, 2008).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Evidence – Defendant’s cooperation with law enforcement was not voluntary where two uniformed police officers arrived in squad cars at defendant’s house, told him they were there to investigate reports of drug dealing at the residence, obtained his ID, and told him they “needed to talk to him.” Under circumstances of this case, a reasonable person would have felt compelled to comply with the officer’s requests. Judgment and sentence reversed.  Fleming v. State, No. CRC 06-52 APANO, (Fla. 6th Cir. App. Ct. Feb. 14, 2008).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Evidence –Evidence must be suppressed where police officer intruded into defendant’s vehicle and seized bottle before he had opportunity to reasonably determine it contained contraband. Order granting defendant’s motion to suppress affirmed. State v. Wallace, No. CRC 06-91 APANO (Fla. 6th Cir. App. Ct. December 19, 2007).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Evidence – Motion to suppress properly granted where police repeatedly demanded identification from the defendant, accompanied him into the house to retrieve his identification, seized the bag that contained the identification, and found marijuana inside the bag. Order granting defendant’s motion to suppress affirmed. State v. Guivas, No. CRC 05-99 APANO, (Fla. 6th Cir. App. Ct. May 14, 2007).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Evidence – Search of defendant improper where one deputy took defendant’s identification away for several minutes and two other deputies confronted defendant and asked to search him after having improperly searched defendant’s companion. State failed to demonstrate consent to search was consensual. Judgment and sentence reversed. Milford v. State, No. CRC 06-22 APANO, (Fla. 6th Cir. App. Ct. April 19, 2007).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Evidence – Trial Court properly denied defendant’s motion to suppress finding that the officers’ entry into the defendant’s home was consensual and once inside the home the officers observed drug paraphernalia in “plain view”.  Judgment affirmed. Williams v. State,  No. 0404899CFAES  ( Fla.  6th Cir. App. Ct. June 20,  2006).

County Criminal Court: CRIMINAL LAW – Search and Seizure – evidence. Odor of marijuana coming from car permitted officer to search car and occupants. Resulting find of weapon on one of occupants was valid. Judgment and sentence affirmed. Sharp v. State, No. CRC 05-40 APANO, (Fla. 6th Cir.App.Ct. Dec. 12, 2005).

County Criminal Court: CRIMINAL LAW– Search and Seizure – Evidence –Police justified by pulling behind parked vehicle that had its lights on and engine running in response to a call to investigate a suspicious vehicle. Entry into the vehicle justified when defendant failed to wake up after officer knocked on window numerous times and noticed what appeared to be dried vomit on driver’s door. Judgment and sentence affirmed. Head v. State, No. CRC 03-8 APANO, (Fla. 6th Cir.App.Ct. May 4, 2005).

County Criminal Court:  CRIMINAL LAW – search and seizure – evidence – search of passenger’s purse unlawful – it was not reasonable for the deputy to assume that the driver had the apparent authority to consent to the passenger’s purse – passenger’s purse suggested individual ownership requiring consent before the search – suppression of contents of purse supported by the record – Order affirmed.  State v. Vantreese, No. 03-00076 APANO (Fla. 6th Cir. App. Ct. April 23, 2004).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Evidence – Trial Court properly denied defendant’s motion to suppress finding that the officers’ entry into the defendant’s home was consensual and once inside the home the officers observed drug paraphernalia in “plain view”.  Trial Court properly granted defendant’s motion to suppress marijuana found in defendant’s home finding that once defendant was handcuffed and read Miranda consent to search was not voluntary but was acquiescence to law enforcement authority.  Long v. State, No. 02-84 (Fla. 6th Cir. App. Ct. Nov. 14, 2002 ).

Defendant’s argument that the draw of his blood to determine its alcohol content was taken without sufficient notice as required when there is alleged serious bodily injury was without merit.  Sec. 316.1933(1) Fla. Stat. (1999) does not contain a specific “sufficient notice” requirement.   Instead, it states that upon the “request” of the officer a person “shall submit” to a test of their blood.  Furthermore, the trial court, having had the opportunity to observe the witnesses, found Deputy Anthony’s testimony that he requested a blood draw from the defendant more credible than the defendant’s testimony that the deputy did not make the request.  Stolz v. State, No. CRC 00-15073 CFANO (Fla. 6th Cir. Ct. January 9, 2002).

The draw of the defendant’s blood was justified because there was sufficient trustworthy information to cause the officer to believe that there was a substantial risk that the defendant had serious bodily injury as required by Sec. 316.1933(1). Fla. Stat. (1999). Stolz v. State, No. CRC 00-15073 CFANO (Fla. 6th Cir. Ct. January 9, 2002).

Because the defendant had no choice but to allow the officers to enter his home, the defendant’s consent was not freely and voluntarily given.  Accordingly, without a search warrant, an emergency, exigent circumstances or consent, the officers had no legitimate right to be in the defendant’s residence.  Therefore, the trial court properly granted the defendant’s Motion to Suppress.  State v. Mersinger, No. CRC 00-17854 CFANO (Fla. 6th Cir. Ct. June 13, 2001).

The trial court properly denied defendant’s motion to suppress evidence finding that deputies were justified in entering her mobile home without a search warrant based on exigent circumstances.  The facts in evidence showed that there was a fourteen-year-old girl who had run away from home.  The trial judge found there were exigent circumstances because there was evidence that the runaway was in the mobile home and her safety was in jeopardy.  Irwin v. State, No. CRC 00-11197 CFANO (Fla. 6th Cir. Ct. March 22, 2001).

Since no testimony was introduced to show that a 911 tipster had prior contacts with the police to show a history of reliability, the trial court properly characterized the caller as an “anonymous tipper.”  State v. Szabo, No. CRC 00-09978 CFANO (Fla. 6th Cir. Ct. November 9, 2000).

The trial court erred in granting the defendant's motion to suppress the evidence of the rhino knife because the officer testified he saw an elongated bulge in the defendant's pocket as he stepped from the vehicle. State v. Edwards, No. CRC 95-3836 CFANO (Fla. 6th Cir. Ct. Jan. 29, 1996).

Order granting motion to suppress was proper because the police had no right to open a small tin located in a duffle bag in the bed of a pickup truck while ostensibly conducting a protective search for weapons. State v. Armstrong, No. CRC 95-16851 CFANO (Fla. 6th Cir. Ct. April 25, 1996).

The trial court was correct to exclude evidence obtained by the officer acting outside his jurisdiction "under the color of office." State v. Creamer, No. CRC 95-11252 CFANO (Fla. 6th Cir. Ct. April 1, 1996).

Search and Seizure -- Stop

County Criminal CourtCRIMINAL LAW—Search and Seizure—Stop.  The trial court properly granted the motion to suppress evidence, finding the evidence to have been obtained as the result of a non-consensual investigatory stop that was not supported by a reasonable, articulable suspicion that Appellee was the subject of an arrest warrant.  Affirmed.  State of Florida v. Larry Darrell Smith, No. 13-CF-3004-ES (Fla. 6th Cir. App. Ct. June 10, 2014).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop – Trial court did not err in denying motion to suppress. Competent, substantial evidence in the record supported trial court’s finding that Appellant’s encounter with law enforcement was consensual where Appellant slowed his vehicle to speak with officer who had concluded his investigation of a complaint in the area and was preparing to leave; upon approaching the vehicle, officer observed Appellant smelled of alcohol and substance later identified as marijuana was visible on passenger seat. Order denying motion to suppress affirmed. Morano v. State, No. 13-00055APANO (Fla. 6th Cir. App. Ct. March 14, 2014).

County Civil Court: CRIMINAL LAW – Search and Seizure – Stop – Trial court erred in granting motion to suppress when deputy acquired reasonable suspicion to detain Appellee while performing community care duties.  Reversed and remanded.  State v. Michael Tompkins, Case No. 12-CF-004472-ES (Fla. 6th Cir. App. Ct. May 21, 2013). 

County Criminal Court: CRIMINAL LAW – Search and seizure – Stop – Trial court erred in denying motion to suppress evidence of illegal items when scope of search to which Appellant consented was limited to officer safety.  Order denying motion to suppress reversed, with dissenting opinion.  Dovellas v. State, No. 12-00040APANO (Fla. 6th Cir. App. Ct. April 18, 2013).

County Criminal Court: CRIMINAL LAW – Search and seizure – Trial court did not err in denying motion to suppress and motion to dismiss. Officer’s seizure of illegal substance without search warrant was permissible where exigent circumstances exception to warrant requirement applied, illegal nature of substance was readily apparent to officer, and substance could be easily destroyed.  Denial of motion to dismiss controlled by Adkins v. State, 96 So. 3d 412 (Fla. 2012) and affirmed.  Order denying motion to suppress and motion to dismiss affirmed.  Armstrong v. State, No. 11-00072APANO (Fla. 6th Cir. App. Ct. November 28, 2012).

County Criminal Court:  CRIMINAL LAW – Search & seizure – Stop – Trial court erred in granting Appellee’s motion to suppress.  Although officer conducted traffic stop for invalid reason, because another valid reason to do so existed and officer therefore could have properly initiated stop, the actual stop was permissible.  Reversed and remanded with instructions.  State v. Montgomery, CRC10-00065APANO (Fla. 6th Cir. App. Ct. April 25, 2012).

County Criminal Court: CRIMINAL LAW – Search and seizure – Stop – Trial court did not err in denying motion to suppress because officer had reasonable suspicion to believe Appellant had committed crime, based on the totality of the circumstances - officer’s stop of vehicle and arrest of Appellant were valid.  Order denying motion to suppress affirmed; judgment and sentence affirmed.  Adams v. State, No. 10-00037APANO (Fla. 6th Cir. App. Ct. February 15, 2012).

County Criminal Court:  CRIMINAL LAW – Traffic Stop – Officer properly made an extra-jurisdictional stop of Appellant.  Trial court affirmed.   Anderson v. State, No. 10-CA-005908-WS (Fla. 6th Cir. App. Ct. October 7, 2011).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop – Trial court erred in granting motion to suppress evidence.  Investigatory stop was justified when police had reasonable suspicion to believe that Appellee was impaired when police observed Appellee’s truck illegally parked and partially on the road with engine running and lights on; Appellee was slumped over in driver’s seat, and police were unable to get Appellee’s attention despite repeatedly knocking on the truck’s window and door.  Order granting motion to suppress reversed.  State v. Walton, No. CRC10-00064APANO (Fla. 6th Cir. App. Ct. March 4, 2011).

County Criminal Court: CRIMINAL LAW – Search and seizure – Stop – Trial court erred in granting motion to suppress, when officer had probable cause to stop driver for traffic infraction; evidence gathered as a result of stop should have been admitted.  Order reversed; case remanded for further proceedings.  State v. Hicks, No. CRC09-00058APANO (Fla. 6th Cir. App. Ct. January 4, 2011).

County Criminal Court: CRIMINAL LAW — Search & Seizure — Stop — Officer had probable cause to stop defendant when crossed the fog line more than once in short period.  Trial court’s order granting motion to suppress is reversed.  State of Florida v. Mathew Ashmore, No. CRC08-02604-CFAWS (Fla. 6th Cir. App. Ct. September 3, 2010).

County Traffic Court:  CRIMINAL LAW – Search & seizure – Stop – Officer had probable cause to initiate traffic stop for violating section 316.074(1), Florida Statutes, when officer observed car stopped beyond the stop bar and into the crosswalk at a red light. Trial court’s order granting motion to suppress is reversed. State v. Grismer, CRC09-00043APANO (Fla. 6th Cir. App. Ct. April 21, 2010).

County Criminal Court: CRIMINAL LAW — Search & Seizure — Stop — Officer had probable cause to stop defendant when he was stopped at a green light for an extended period.  Trial court’s order denying motion to suppress is affirmed.  Manuel Castro v. State of Florida, No. CRC08-02604-CFAWS (Fla. 6th Cir. App. Ct. February 26, 2010).

County Criminal Court: CRIMINAL LAW — Search & Seizure — Stop — Officer had probable cause to stop defendant when two citizens had approached officer concerned about defendant driving while intoxicated.  Trial court’s order granting motion to suppress is reversed.  State of Florida v. Joseph John Ruwell, No. 08-02772-CFAWS (Fla. 6th Cir. App. Ct. December 30, 2009).

County Criminal Court: CRIMINAL LAW – Search & Seizure – Stop – Officer had probable cause to stop Appellant when he sped away.  Appellant was in custody for purposes of Miranda when officer handcuffed him and put him in the back of the patrol car.  Manner of performance on alphabet test admissible without Miranda warnings.  Motion to Suppress affirmed.  Joseph Morales v. State of Florida, No. 51-2009-CF-003888A000-ES (Fla. 6th Cir. Ct. Nov. 20, 2009). 

County Criminal Court: CRIMINAL LAW --- Search and Seizure – Stop –  The appellant’s excessively slow driving for two tenths of a mile without affecting other traffic, did not constitute sufficiently erratic driving for a reasonable suspicion to justify an investigatory stop.  Trial court’s order denying motion to suppress is reversed.  Petrick v. State, No CRC 08-00028APANO (Fla. 6th Cir. App. Ct. November 20, 2008).

County Criminal Court: CRIMINAL LAW --- Search and Seizure – Stop – Police officer stopping behind a vehicle stopped in the roadway at 2:30 a.m., from which the officer heard a scream, was a “welfare check” and not an investigatory stop or seizure.  The specificity of an anonymous tip and a police officer’s independent observations made within 5 minutes of that tip were sufficient totality of circumstances for a reasonable suspicion to support an investigatory stop.  Trial court’s order denying motion to suppress affirmed.  Hoopingarner v. State, No. CRC 08-00036APANO ( Fla. 6th Cir. App. Ct. November 5, 2008).

Criminal County Court: CRIMINAL LAW --- Search and Seizure – Stop --- trial court erred in finding that a citizen encounter can only be based upon a well founded suspicion-officer in present case testified he was worried about driver’s health-lower court made no findings regarding officer’s concerns-reversed and remanded for further consideration. Reversed and remanded. State v. Avery, CRC0400140CFAES (Fla. 6th Cir. App. Ct.  September 4, 2008).

County Criminal Court: CRIMINAL LAW --- Search and Seizure – Stop – A citizen who provided his identity, and whose apparent motivations were to protect life and report suspected illegal behavior, and who alleged detailed dangerous illegal activity, was a citizen informant.  The reliability of the allegations from the citizen informant, and the police officer’s corroboration of some of the allegations were sufficient totality of circumstances to support an investigatory stop.  Trial court’s order denying motion to suppress affirmed. Riviere v. State, No. CRC 08-00024APANO (Fla. 6th Cir. App. Ct. October 21, 2008).

County Criminal Court: CRIMINAL LAW --- Search and Seizure – Stop – An investigatory stop based on an anonymous tip of suspected DUI was lawful when the deputy corroborated the information from the tip and also independently observed the car off the road with the engine running and with no person apparent inside the car.  Opening the car door after finding an unconscious and non-responsive person in the car was permitted as an “emergency exception” to a warrantless search.  Trial court’s order denying motion to suppress affirmed.  Moser v. State, No CRC 07-00048APANO (Fla. 6th Cir. App. Ct. September 25, 2008).

County Criminal Court:  CRIMINAL LAW --- DUI – Search and Seizure –Stop---a court determines the legitimacy of an investigatory stop by considering the totality of the circumstances surrounding the stop.  Law enforcement officer who was requested to the scene of a motor vehicle accident in a trailer park could lawfully enter the mobile home park.  Investigatory stop of Appellee and arrest for DUI were proper under the circumstances.  Order reversed.  State v. Nolin, No. CRC07-00070APANO (Fla. 6th Cir. App. Ct., August 21, 2008)

County Criminal Court: CRIMINAL LAW --- Search and Seizure --- Stop ---  Where there was evidence that the officer was investigating a report of a battery with two specifically identified people at a specific location, and the officer approached two people who matched the description near the location and saw evidence that corroborated the tip, one of the people’s motion for JOA on a resisting arrest charge was properly denied when he refused to obey the officer’s commands to stay so an investigation could be completed. Judgment and sentence affirmed. Lopez v. State, No. CRC 06-72 APANO (Fla. 6th Cir. App. Ct. April 21, 2008).

County Criminal Court: CRIMINAL LAW --- Search and Seizure --- Stop --- Evidence of defendant leaving hotel parking lot did not support stop of defendant’s vehicle even though there was a report of a burglary at the hotel. Alleged traffic violation was not properly preserved for appellate review because State did not argue it to trial court and raised it for the first time on appeal. Order granting defendant’s motion to suppress affirmed. State v. Adamo, No. CRC 07-38 APANO, ( Fla. 6th Cir.App.Ct. March 18, 2008).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop – Stop not justified where police failed to first corroborate information in anonymous caller’s message prior to making stop. Order granting motion to suppress affirmed. State v. Goepfert, No. CRC 07-1 APANO (Fla. 6th Cir.App.Ct. January 10, 2008).

County Criminal Court: CRIMINAL LAW --- Search and Seizure – Stop – Trial court correctly found that caller was a citizen informer where caller identified himself as “Steve”, told them where he was calling from, and left a phone number. Judgment and sentence affirmed. Sprentall v. State, No. CRC 06-90 APANO (Fla. 6th Cir.App.Ct. January 4, 2008).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop – Investigation was proper where police discovered defendant parked in emergency lane of I-275 with car running and defendant passed out behind wheel. Situation was either emergency or illegal parking. Judgment and sentence affirmed. Falvo v. State, No. CRC 06-74 APANO (Fla. 6th Cir.App.Ct. January 4, 2008).

Criminal County Court: CRIMINAL LAW --- Search and Seizure – Stop --- Investigation was proper where police were informed defendant was passed out in vehicle; when they arrived headlights were on, keys in ignition, and police observed alcohol-smelling vomit around car, on car, and on defendant. Judgment and sentence affirmed. Anderson v. State, No. CRC 06-88 APANO (Fla. 6th Cir. App. Ct. December 5, 2007).

County Criminal Court:  CRIMINAL LAW – Search and Seizure --  Stop --- Odor of burnt marijuana emanating from a vehicle gives the police probable cause to search both the vehicle and its occupants. Order to suppress reversed. State v. Charles, No. CRC 06-60 APANO (Fla. 6th Cir.App. Ct. October 24, 2007).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop - an officer needs no basis for approaching a person in a public place, identifying himself as an officer, and asking questions-deputy approached appellee to ask him why he was squealing his tires; why he was in a handicapped space without a visible handicapped sticker; and whether or not he knew the subject of the domestic violence injunction- no evidence in this record that appellee felt in any way restrained-would have been free to leave and no reasonable person would have believed otherwise.  Order granting motion to suppress reversed.  State v. Roth, No. 0605021CFAWS (Fla. 6th Cir.App.Ct. ( July 12, 2007)

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop - Defendant’s driving pattern sufficient to justify a stop where defendant weaved within his lane on three occasions, each time making sharp, jerky adjustments. Judgment and sentence affirmed. Moffat v. State, No. CRC 06-33 APANO, (Fla. 6th Cir. App. Ct. July 5, 2007)

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop – Stop justified where police saw defendant haphazardly parked in area that had increased auto theft, slumped over the steering wheel with engine running and headlights on, and officer testified that he believed defendant either ill or DUI. Officer parking behind car not significant because defendant unaware her car was blocked. Order granting defendant’s motion to suppress reversed. State v. Roosa, No. CRC 06-50 APANO, (Fla. 6th Cir. App. Ct. June 15, 2007).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop – Stop justified where police knew registered vehicle owner had suspended driver’s license and description of driver matched registered vehicle owner. Order granting defendant’s motion to suppress reversed. State v. York, No. CRC 06-53 APANO, (Fla. 6th Cir. App. Ct. June 11, 2007).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop – Search of vehicle unjustified where there was no evidence of officer’s training or experience in identifying smell of burnt marijuana. Order granting defendant’s motion to suppress affirmed. State v. Going, No. CRC 06-28 APANO, (Fla. 6th Cir. App. Ct. May 14, 2007).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop – Given short distance covered and condition of road, trial court’s finding of insufficient evidence to establish a pattern of unusual driving was justified. Order granting defendant’s motion to suppress affirmed. State v. Clark, No. CRC 06-29 APANO, (Fla. 6th Cir. App. Ct. May 14, 2007).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop – Stop justified where police saw defendant stopped at red light with her heard bobbing up and down as if asleep and finally slumping over as if asleep or passed out. Judgment and sentence affirmed. Stenmark v. State, No. CRC 06-29 APANO, (Fla. 6th Cir. App. Ct. April 23, 2007).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop – Trial court misinterpreted Whren case where it found officer’s subjective intent in stopping defendant was relevant. Defendant’s act of running red light sufficient to justify stop. Order granting defendant’s motion to suppress reversed. State v. Phillips, No. CRC 06-19 APANO, (Fla. 6th Cir. App. Ct. March 7, 2007).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop- the stop of a vehicle weaving within its own lane is justified even without rising to the level of an infraction, to determine if the operator is under the influence of alcohol or drugs or just having mechanical problems.  Order of trial court reversed.  State v. Ortiz, No. 0506403CFAES,  (Fla. 6th Cir.App.Ct   January 24, 2007).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop – deputy testified that he pulled over appellant for failure to maintain a lane-deputy acknowledged that the sole basis for the stop was his perception that appellant violated the statute- no testimony at all elicited at the hearing that the deputy effectuated the stop for a reason other than his perception that appellant violated the statute. Order of trial court reversed. Leyland v. State, No. 0506090CFAES  (Fla. 6th Cir.Ap.Ct.  January 19, 2007).

County Criminal Court : CRIMINAL LAW – Search and Seizure – Stop -Police officer ordering defendant to “come here a minute” was a stop and not a consensual encounter. Order granting motion to suppress affirmed. State v. Macnider, No. CRC 05-46 APANO (Fla. 6th Cir.App.Ct. May 23, 2006).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop – Video did not support the stop, particularly when the video did not fully support the police officer’s testimony. Order granting defendant’s motion to suppress affirmed. Farmer v. State, No. CRC 05-76 APANO, (Fla. 6th Cir.App.Ct. May 19, 2006).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop – When defendant simply overshot the left-turn lane slightly, realized his error and made the left-turn safely, there was no justification for the officer to make the stop. Order granting motion to suppress affirmed. State v. Johnson, No. CRC 05-62 APANO, (Fla. 6th Cir.Ap.Ct. May 19, 2006).

County Criminal Court: CRIMINAL LAW - Search and Seizure - Stop - Police officer's observation of defendant's vehicle exceeding the posted speed limit is sufficient reasonable suspicion to justify the stop. Judgment reversed. State v. Smith, CRC05-4311CFAES (Fla. 6th Cir.App.Ct. May 16, 2006).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop – Where defendant was weaving within lane, applying brakes for no apparent reason and maintaining erratic speed, stop justified. Judgment and sentence affirmed. Anderson v. State, No. CRC 05-61 APANO, (Fla. 6th Cir.App.Ct. May 11, 2006).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop – Because driving was in afternoon, only slightly unusual and observed for a brief time, stop not justified. Order granting motion to suppress affirmed. State v. Frioli, No. CRC 05-69 APANO, (Fla. 6th Cir.App.Ct. May 11, 2006)

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop –Defendant’s act of driving slowly in area where police were conducting search for fugitive was insufficient to justify a stop. Order granting defendant’s motion to suppress affirmed. State v. Quinn, No. CRC 05-54 APANO, (Fla. 6th Cir.App.Ct. April 17, 2006).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop. Stop proper where police received anonymous tip that defendant was driving a particular vehicle at a particular location without a valid driver’s license when tip gave the defendant’s name, date of birth, and make, color, and license plate number, and police corroborated that defendant had a suspended driver’s license and that vehicle was registered to defendant’s mother. Judgment and sentence affirmed. Samuelson v. State, No. CRC 05-33 APANO, (Fla. 6th Cir.App.Ct. Feb. 8,2006).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop – Defendant’s minimal weaving and his failure to properly stop at a traffic light (all four of the car’s wheels were over the white line) justified a stop. Judgment and sentence affirmed. Sowers v. State, No. CRC 05-6 APANO, (Fla. 6th Cir.App.Ct. Oct. 26, 2005).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop – Police officer’s observation of defendant driving while head and body slumped over wheel and drifting across lanes justified stop. Particularly when defendant appeared to just drive off the roadway when making his stop Judgment and sentence affirmed. Towne v. State, No. CRC 04-62 APANO, (Fla. 6th Cir.App.Ct. Oct. 14, 2005).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop – Review of the videotape reveals that the defendant only made one wide turn, not affecting traffic, and quickly corrected it. This was insufficient to justify stop. Judgment and sentence reversed. Hampton v. State, No. CRC 04-42 APANO, (Fla. 6th Cir.App.Ct. Sept. 30. 2005).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop – Police officer’s observation over time of defendant continuously weaving out of lane while driving very slowly over bridge justified stop. Order granting motion to suppress reversed. State v. Revilla, No. CRC 04-58 APANO, (Fla. 6th Cir.App.Ct. Sept. 13, 2005).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop – Defendant’s act of repeatedly weaving both within and without of his lane was sufficient to establish a pattern of erratic driving justifying a stop. Judgment and sentence affirmed. Prewitt v. State, No. CRC 04-41 APANO, ( Fla. 6 th Cir.App.Ct. June 30, 2005).

County Criminal Court: CRIMINAL LAW – Search and seizure – Stop – Defendant’s handcuffing justified when he failed to stop for over five blocks after being told to stop by a police officer, and defendant made a furtive movement just before he got out of his car. Judgment and sentence affirmed. Morand v. State, No. CRC 04-1 APANO, (Fla. 6th Cir.App.Ct. May 25, 2005).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop–trial court did not error in granting motion to suppress- officer had reasonable suspicion that appellee was driving under the influence and officer was entitled to further investigate whether or not he had probable cause for arrest, but by ordering the defendant out of the vehicle and further subjecting him to a forced test (gaze nystagmus) the defendant's freedom of movement was restrained without probable cause or well founded suspicion of criminal activity. It is the trial court who determined that the officer "commanded" the HGN test and, as a result, the stop turned into a detention which required probable cause. - Order affirmed. State v. Hancock, CRC0403486CFAES (Fla. 6th Cir. App. Ct. April 25, 2005).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop-A cracked windshield that did not pose a safety hazard was sufficient reason for the police to stop the defendant’s vehicle. Order granting defendant’s motion to suppress/dismiss reversed. State v. Jorgensen, No. CRC 04-4 APANO, (Fla. 6th Cir.App.Ct. March 24, 2005).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop – Stop of motorist was proper where police saw the motorist continually drifting in, and out, of her lane, and officer testified that the pattern of driving was consistent with someone who was DUI. Judgment and sentence affirmed. State v. Bean, No. CRC 04-22 APANO, (Fla. 6th Cir.App.Ct. March 4, 2005).

County Criminal Court: CRIMINAL LAW– Search and Seizure – Stop – Stop of defendant was proper where officer saw the defendant being escorted out of bar, saw him staggering and stumbling and appearing intoxicated, and then saw him get into a car -- even though the officer did not smell alcohol. Judgment and sentence affirmed. Sterbenz v. State, No. CRC 03-11 APANO, (Fla. 6th Cir.App.Ct. March 4, 2005).

County Criminal Court: CRIMINAL LAW-Search and Seizure/Stop- cases consolidated for purposes of this appeal-a defendant who pleads nolo contendere to a criminal offense waives the right to appeal the judgment entered on the plea except as to issues expressly reserved for review and a narrow range of issues relating to the validity plea and sentence- no evidence in either record that appellant entered the plea(s) of nolo contendere expressly reserving his right to appeal-Order affirmed. Miller v. State, No. 04-2782/04-2691CFAES (Fla. 6th Cir. App. Ct. January 14, 2005 ).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop - Stop was proper because the BOLO was not vague and the call to the police was from a citizen informant. Even if police did have to corroborate information, the record showed sufficient corroborating evidence to justify the stop. – Judgment and sentence affirmed. Mills v. State, No. CRC 03-84 APANO (Fla. 6th Cir. App. Ct. Jan 5, 2005).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop - Trial court erroneously concluded that the defendant’s flight immediately upon seeing the police in a high-crime neighborhood did not provide the police with a reasonable suspicion to make an investigatory stop. – Order granting motion to suppress reversed. State v. Gross, No. CRC 04-28 APANO (Fla. 6th Cir. App. Ct. Dec. 30, 2004).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop – Defendant’s speeding and careless driving warranted the traffic stop. – Judgment and Sentence affirmed. Spence v. State, No. CRC 04-3 APANO (Fla. 6th Cir. App. Ct. Nov. 30, 2004).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop - Trial court’s decision was based upon subsequently overturned case of Bodden; therefore, the order granting the defendant’s motion to suppress is reversed. – Order granting motion to suppress reversed. State v. Kane, No. CRC 04-12 APANO (Fla. 6th Cir. App. Ct. Nov. 22, 2004).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop - Stop was proper where the defendant had been told by the police earlier that night not to drive because he was intoxicated; but two hours later the police received a call saying the defendant was now attempting to drive. – Judgment and sentence affirmed. Fink v. State, No. CRC 03-93 APANO (Fla. 6th Cir. App. Ct. Sept. 19, 2004).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop - Defendant’s pattern of driving at inconsistent speeds and weaving within his lane, coupled with the officer’s testimony that such driving was consistent with someone who is DUI, justified the stop. – Judgment and sentence affirmed. Kronz v. State, No. CRC 03-42 APANO (Fla. 6th Cir. App. Ct. Sept. 13, 2004).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop – Identifiable restaurant employee calling police to inform them that defendant had been drinking heavily, appeared intoxicated, and was heading towards a specific car, provided reasonable suspicion for police to make investigatory stop of defendant’s car when police observed defendant in actual physical control of the specific car in the restaurant parking lot. Breeden v. State, No. CRC 03-91 APANO (Fla. 6th Cir.App.Ct. August 3, 2004).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop – Case remanded for reconsideration in light of State v. Bodden, 29 Fla. L. Weekly S153 (Fla. 2004) – motion to suppress set aside. State v. Muller, No. CRC 03-71 APANO, (Fla. 6th Cir. App.Ct. July 27, 2004).

County Criminal Court:  CRIMINAL LAW – Search and Seizure – had defendant been ordered by officer to exit his vehicle, the encounter would have been an unlawful investigatory stop – trial court must resolve conflicting testimony as to whether defendant voluntary exited his vehicle or was ordered to exit his vehicle – trial court’s ruling is presumed correct and is supported by competent substantial evidence -- Order affirmed.  Simino v. State, No. 03-00028 APANO (Fla. 6th Cir. App. Ct. July 9, 2004).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop – There was sufficient reason for the police to investigate the situation where they received a call near midnight to go to an area, and once there they found the defendant in car with the door open and sprawled in the driver’s seat appearing to be either asleep or unconscious. – Judgment and sentence affirmed. Wiseberg v. State, No. CRC 02-21295 CFANO (Fla. 6th Cir. App. Ct. June 29, 2004).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Police did not have reason to involuntarily detain individual where police received anonymous tip that car was being “stripped” by two men at particular location, and when police arrived at location they found two men merely changing a tire. Ruling affirmed. State v. Brown, 03-69 APANO ( Fla. 6th Cir.App.Ct. May 12, 2004).

County Criminal Court: CRIMINAL – Search and Seizure – Stop – One incident of slight veering beyond lane marker insufficient to establish probable cause for stop. Decision affirmed. State v. McKean, No. 03-87 APANO (Fla. 6th Cir.App.Ct. May 5, 2004).

County Criminal Court: CRIMINAL LAW - Search and Seizure – Stop- Motion to suppress was properly denied where there was evidence of a traffic infraction. – Any deficiency in the evidence of impairment was caused in part by defense counsel’s objections. Judgment affirmed. Feigley v. State, No. 03-35 APANO (Fla. 6th Cir. App. Ct. Feb. 4, 2004).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop – Odor of marijuana coming from a vehicle is sufficient grounds to search all of the occupants of the vehicle. – Order of suppression reversed. State v. Bowman, No. 03-10 APANO (Fla. 6th Cir. App. Ct. Feb. 4, 2004).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop – Suppression not warranted even if an officer’s basis for the stop was invalid, where sufficient facts existed to justify the stop independent of the officer’s reason. – Judgment affirmed. Barton v. State, No. 03-26 APANO (Fla. 6th Cir. App. Ct. Jan. 21, 2004).

County Criminal Court-CRIMINAL LAW – Search and Seizure- stop- Officer had a well founded suspicion to stop the defendant’s vehicle, analysis is of the totality of the circumstances, not the nature of the driver’s license restriction.  Order of suppression reversed.  State v. Negron, No. 03-20APANO (Fla. 6th Cir. App. Ct. April 8, 2003).

County Criminal Court: CRIMINAL LAW- Search and Seizure- Stop- Officer’s observations of the defendant with open alcohol in a city part provided sufficient justification for the officers to continue the investigation of the defendant.  Glover v. State No.: 03-16APANO (Fla. 6th Cir. App. Ct. April 3, 2003).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop- Officer’s observation of defendant’s driving provided officer with an objective basis to initiate a traffic stop, further investigation was warranted to ascertain defendant’s welfare.  Delorey v. State, No. 03-17 (Fla. 6th Cir. App. Ct. April 3, 2003).

County Criminal Court: CRIMINAL LAW: - Search and Seizure – Stop - The investigatory stop of defendant’s car unlawful where officer testified that the only basis for the stop was that the defendant failed to maintain a single lane where no other traffic was affected.  Defendant not in violation of Fla. Stat.§ 316.089.  Order affirmed. State v. Crilley, No. 02-88 (Fla. 6th Cir. App. Ct. Dec. 12, 2002).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Stop –The investigatory stop of defendant’s car was unlawful where officer determined that registered owner of the vehicle was female and upon stopping vehicle the officer observed the driver was male, justification for stop ended.  Deputy testified sole basis for stopping the car was that registered owner had a suspended license.  Order of suppression reversed.  Smart v. State, No. 02-80 (Fla. 6th cir. App. Ct. Oct. 23, 2002).

The investigatory stop of the defendant’s car was unlawful where the officer admitted that he observed no indication of criminal activity as he followed the defendant’s vehicle prior to the stop, and the only reason he could give for the stop was that he had encountered the defendant earlier that night, who appeared intoxicated, and stopped the car only to ensure that the defendant was not driving.  State v. Hansen, No. CRC 01-05037 CFANO (Fla. 6th Cir. Ct. March 18, 2002).

Officers had a well-founded suspicion to stop the defendant and investigate him for DUI where they came upon his vehicle at 12:30 in the morning, with the car running, the windows rolled up, the defendant asleep or unconscious behind the wheel, and the car at least partially obstructing the flow of traffic.  The totality of the circumstances as viewed by the two experienced officers warranted a brief investigatory stop, not only for the defendant’s welfare, but also for the welfare of others traveling that roadway.  Borresen v. State, No. CRC 01-11556 CFANO (Fla. 6th Cir. Ct. March 18, 2002).

Technical violation of the fresh pursuit statute, §901.25(3),  -- failure to take the defendant before a judge or magistrate -- was not legally significant because it did not affect the validity of the arrest or deprive the officer of jurisdiction, and did not render the stop, detention or arrest illegal. State v. Yettaw, No. CRC 00-19056 CFANO (Fla. 6th Cir.Ct. Oct. 5, 2001).

A plain reading of the Implied Consent law indicated that a lawful arrest for an alleged violation of the reckless driving statute together with reasonable cause on the part of the arresting officer to believe the arrestee at the time he was driving was under the influence of alcohol effectively triggered the breath testing provisions of the statute.  Therefore, the trial court’s Order Suppressing Evidence was reversed and the cause remanded for further proceedings.  State v. Koster, No. CRC 00-21824 CFANO (Fla. 6th Cir. Ct. September 24, 2001).

The investigatory stop of the defendant based upon a BOLO was unjustified where information from an anonymous source described a white female carrying a baby; and the defendant who matched the description was found thirty minutes later, six blocks away and no independent acts were witnessed by law enforcement to give rise to a well-founded suspicion of criminal activity.  Dennis v. State, No. CRC 01-04761 CFANO (Fla. 6th Cir. Ct. Sept. 7, 2001).

The trial court properly found sufficient evidence existed to establish probable cause for the officer to stop the defendant’s vehicle for careless driving.  What the officer observed fully and objectively supported his decision that the defendant was not driving in a careful and prudent manner, having regard for the width, curves corners, traffic, and all other attendant circumstances.  The officer reasonably estimated, based on his visual perception, that the defendant was exceeding the speed limit while making abrupt lane changes in and out of traffic.  Skellenger v. State, No. CRC 01-01302 CFANO (Fla. 6th Cir. Ct. September 7, 2001).

There was no evidence to support the defendant’s assertion that the trial court’s findings were clearly erroneous.  The deputy testified that he stopped the defendant’s vehicle because he observed that the defendant’s brake light was not operating properly.  The deputy then cited the defendant for driving a vehicle in an unsafe condition. The facts therefore supported the trial court’s ruling that the deputy had probable cause to make the stop.  Cumbee v. State, No. 00-19790 CFANO (Fla. 6th Cir. Ct. July 6, 2001).

The stop of a driver was proper. The officer ran the car’s tag and found the registered owner of the car had a suspended license. The officer verified the information on the registered owner matched that of the driver. State v. Rohrer, No. CRC 00-12114 CFANO (Fla. 6th Cir.Ct. July 2, 2001).

An officer did not have a well-founded, articulable justification for initiating an investigatory stop because he erroneously failed to see the valid temporary tag properly affixed to the rear window.  Furthermore, the state failed to show that the tag was obscured.  Therefore, the Defendant’s Motion to Suppress was properly granted.  State v. Hargrove, No. CRC 00-17675 CFANO (Fla. 6th Cir. Ct. May 25, 2001).

The trial court erred in finding that an officer’s investigatory detention of a vehicle’s driver was not supported by a well-founded suspicion of criminal activity when the officer determined that the vehicle’s registered owner did not possess a valid driver’s license, then verified that the registered owner’s gender was consistent with that of the driver. State v.Dougherty, No. CRC 00-16690 CFANO (Fla. 6th Cir. Ct. April 27, 2001).

An officer’s investigatory detention of a vehicle’s driver was supported by a well founded suspicion of criminal activity when the officer determined that the vehicle’s registered owner did not possess a valid driver’s license, then drove up along side to confirm that the description of the vehicle’s registered owner was consistent with that of the driver.   Therefore, the trial court was reversed.  State v.Brooks, No. CRC 00-16887 CFANO (Fla. 6th Cir. Ct. April 6, 2001).

An officer’s investigatory detention of a vehicle’s driver was supported by a well founded suspicion of unlawful activity when the officer determined that the vehicle’s registered owner did not possess a valid driver’s license, the officer identified that the driver fit the description of the owner, and the officer testified that had the driver not fit the description he would not have initiated a stop.  The trial court, however, erred at the rehearing when it misinterpreted a recent case that dealt only with an unlawful stop and a driver’s identity.  Therefore, the trial court was reversed.  State v. Benzel, No. CRC 00-12107 CFANO (Fla. 6th Cir. Ct. March 22, 2001).

The trial court improperly granted the defendant’s motion to suppress because the deputy had sufficient justification to stop the defendant when he ascertained that the registered owner of the vehicle being driven by the defendant had a business purposes only driver’s license, and the vehicle was being driven under circumstances suggesting a non-business purpose use. State v. Tolley, No. CRC 99-9965 CFANO (Fla. 6th Cir.Ct. March 14, 2001).

The trial court erred in granting the defendant’s motion to suppress because there was reasonable suspicion that the defendant was committing a crime. Although the activity observed could have been consistent with innocent activity, it also justified an investigatory stop. State v. Aho, No. CRC 00-9619 CFANO (Fla. 6th Cir.Ct. Jan. 23, 2001).

The trial court properly denied the defendant’s motion to suppress because it was reasonable for the deputy to get out of his cruiser and confront the defendant. The defendant was driving his car in reverse at a moderate rate of speed towards the exit. The deputy had to stop his cruiser to avoid colliding with the defendant’s vehicle. The defendant’s vehicle stopped because there was no way to go around the cruiser and the defendant did not attempt to move his car forward and head in the other direction. Copeland v. State, No. CRC 00-6298 CFANO (Fla. 6th Cir.Ct. Jan. 12, 2001).

Officer did not have reasonable suspicion to stop and detain the defendant’s vehicle after receiving an anonymous tip that a male passenger in a two-door, light blue vehicle was observed shooting a .45 caliber weapon out the window, since the officer observed neither any confirming nor substantiating evidence nor any violation of law that would justify a stop at the time he activated his lights.  Instead, the officer erroneously focused on what he observed after he engaged his lights.  State v. Kalinsky, No. CRC 00-10788 CFANO (Fla. 6th Cir. Ct. January 12, 2001).

Without corroboration by independent police work, an anonymous tip cannot provide the sole basis for the investigatory stop.  State v. Szabo, No. CRC 00-09978 CFANO (Fla. 6th Cir. Ct. November 9, 2000).

Officer had the requisite well-founded suspicion that the defendant was DUI to provide the deputy with justification for elevating contact from a consensual encounter to an investigatory stop.  The officer found the defendant passed out in his vehicle at 2:45 a.m. in an apartment complex parking lot with the headlights on, the keys in the ignition, the engine running, and the radio blaring.  Furthermore, the officer testified that he was initially concerned the defendant’s vehicle was stolen, that when he saw the defendant unconscious in the driver’s seat he was concerned for the drivers’ personal health, and that because the defendant’s car was a convertible with the top and windows down he was able to smell alcohol coming from the defendant before the stop. DiCosola v. State, No. CRC 00-05072 CFANO (Fla. 6th Cir. Ct. November 3, 2000).

Officer’s initial contact with defendant was not a traffic stop, but was a consensual encounter, which does not require a well-founded suspicion of criminal activity or an observation of a traffic law violation.  The officer neither stopped the defendant in the sense that the deputy activated his lights or siren, nor was any evidence introduced to show that the defendant’s vehicle was blocked by the deputy’s vehicle. DiCosola v. State, No. CRC 00-05072 CFANO (Fla. 6th Cir. Ct. November 3, 2000).

Officer did not have reasonable suspicion to stop the defendant’s car where stop was based on fact that officer saw a man leave a house through a sliding glass door with the screen off, with a small object in his hand, and get into a running car directly outside the residence with its headlights on with another man driving at 9:30 at night.   The area was well lit, the lights and the television were on in the residence, which were visible to the officer, there had been no alert to any crime taking place, the car did not speed away, the individuals in the car did not do anything suspicious, and the driver immediately stopped when the officer turned on lights.  State v. Stoner, No. CRC 99-17977 CFANO (Fla. 6th Cir. Ct. October 5, 2000).

Probable cause existed to arrest the defendant for DUI, and therefore, the results of blood tests conducted after the arrest were admissible where the defendant was initially stopped for operating his vehicle with a non-functioning headlight, the arresting officer noticed a strong odor of alcoholic beverages coming from the defendant, the defendant had a flushed face, bloodshot, glassy eyes, and mumbled speech, and admitted drinking alcoholic beverages prior to being stopped.  Therefore, the Order granting the defendant’s Motion to Suppress and dismissing this case was reversed, and the cause remanded for further proceedings.   State v. Rafraf, No. CRC 99-12427 CFANO (Fla. 6th Cir. Ct. August 2, 2000).

Officer had sufficient reason to stop a motorist because he was driving in a private parking lot without headlights and that is a traffic violation. State v. Stonefiser, No. CRC 95-1707 CFANO (Fla. 6th Cir. Ct. Feb. 12, 1996).

The stop of the defendant was proper because the officer observed the defendant fail to maintain a single lane, turn in front of oncoming traffic, and make a wide left turn. Although the officer did not make an immediate stop of the defendant, he did arrest the defendant within less than one hour of his observations and this was in a reasonable time. State v. Klant, No. CRC 95-8145 CFANO (Fla. 6th Cir. Ct. Feb. 27, 1996).

The presence at 1:00 A.M. of a slow - moving vehicle on the property of a closed business that has been the subject of burglaries and vandalism is enough to raise reasonable suspicion of a possible crime. Parks v. State, No. CRC 96-11662 CFANO (Fla. 6th Cir. Ct. March 12, 1996).

Although the officer made an arrest outside his jurisdiction, it was a valid citizen arrest because he observed the defendant committing a breach of the peace by driving recklessly. State v. Creamer, No. CRC 95-11252 CFANO (Fla. 6th Cir. Ct. April 1, 1996).

A motorist weaving across the center line is sufficient for an officer to make a stop. The motorist does not have to endanger someone else before the officer may make the stop. State v. Smith, No. 95-2400 CFAES (Fla. 6th Cir. Ct. April 23, 1996).

A police officer had reasonable suspicion to stop the defendant when a passing motorist told the officer she had just witnessed the defendant buy drugs. Although the citizen - informant was not located after the defendant's arrest, this case is not an "anonymous tip" case. The citizen - informant personally approached the officer and then parked her car -- presumably to await police action. State v. Nessmith, No. CRC 95-6997 CFANO (Fla. 6th Cir. Ct. April 29, 1996).

Although the arresting officer testified he did not think he had a reasonable suspicion that the defendant was DUI, such testimony is not dispositive. The test is whether or not the facts known to the officer at the time of the stop establish a reasonable suspicion to stop. It is for the trial court to decide if the facts establish reasonable suspicion. State v. Fulkerson, No. CRC 95-14254 CFANO (Fla. 6th Cir. Ct. May 9, 1996).

Although the Pinellas County Mutual Aid Agreement is not in strict compliance with Florida Statute 23.1225, that is not fatal to an officer's jurisdiction because the statute is directory and not mandatory. State v. Rivenbark, No. CRC 95-21387 CFANO (Fla. 6th Cir. Ct. August 6, 1996).

The stop of the defendant was reasonable because the officer had a reasonable suspicion the defendant was committing a traffic violation by riding a bicycle without lights. State v. Jachim, No. CRC 96-6352 CFANO (Fla. 6th Cir. Ct. Nov. 4, 1996).

In a pretextual stop situation the officer's subjective intent and whether or not a reasonable officer would have made the stop are irrelevant. Id.

Search and Seizure -- Warrant

County Criminal Court:  CRIMINAL LAW – Search and seizure – Warrant – Trial court properly denied motion to suppress.  Warrantless entry of Appellant’s home was permitted due to exigent circumstances that led officers to reasonable belief that Appellant needed immediate medical attention.  Witness saw Appellant drive home and enter his house following hit-and-run accident.  Officers reasonably believed Appellant’s life was in danger because of damage to car indicating serious injury to Appellant and loss of verbal contact with Appellant inside home; on this basis, their warrantless entry and resulting search of home were legal.  Order denying motion to suppress affirmed; judgment and sentence affirmed.  Narducci v. State, No. CRC10-00088APANO (Fla. 6th Cir. App. Ct. August 1, 2011).

County Criminal Court: CRIMINAL LAW – Search and Seizure – Warrant – Since person inside house opened door in response to police knock, there was no improper execution of the warrant. Denial of motion to suppress affirmed. Colaianni v. State, No. CRC 03-25 APANO (Fla. 6th Cir.App.Ct. July 27, 2004).

Sentencing

Petition for Writ of Habeas Corpus to Review Department of Corrections: CRIMINAL LAW – Sentencing – The Department of Corrections correctly calculated Petitioner’s sentence.  Petition denied.  Andrew v. Florida Department of Corrections, No. 11-CA-005703-WS (Fla. 6th Cir. App. Ct. July 19, 2012).

County Criminal Court: CRIMINAL LAW – Sentencing – Under established law concerning vindictive sentencing, resentencing was required when sentence was imposed due to Appellant’s decision to proceed to trial.  Judgment and conviction affirmed; sentence vacated and case remanded for resentencing.  Jones v. State, No. 11-00030APANO (Fla. 6th Cir. App. Ct. February 16, 2012).

County Criminal Court: CRIMINAL LAW – Sentencing – The trial court erred in imposing a sentence of twelve months of probation for a first degree misdemeanor where Appellant had already served sixty-six days in jail.  The combined sentence of sixty-six days in jail and twelve months of probation exceeds the statutory maximum for a first degree misdemeanor.  Reversed and remanded with instructions.  Stein v. State, CRC11-00026APANO (Fla. 6th Cir. App. Ct. January 13, 2012).

County Criminal Court: CRIMINAL LAW – Sentencing – The trial court erred in imposing discretionary costs and fees without informing Appellant he had a right to a hearing to contest the amount. Reversed and remanded with directions.  Folts v. State, No. CRC0900801CFAWS, (Fla. 6th Cir.App.Ct. July 19, 2010).

County Criminal Court: CRIMINAL LAW – Sentencing – The trial court erred in imposing discretionary fees without informing Appellant he had a right to a hearing to contest the amount. Since the trial court held corrected these errors within a reasonable amount of time, it still had jurisdiction even though more than sixty days had passed from Appellant’s motion to correct sentencing error. Dismissed as moot.  Golden v. State, No. CRC090905357CFAWS, (Fla. 6th Cir.App.Ct. July 19, 2010).

County Criminal Court: CRIMINAL LAW – Sentencing – The trial court erred in imposing discretionary fees without informing Appellant she had a right to a hearing to contest the amount. Reversed and remanded with directions.  Walsh v. State, No. CRC0806864CFAWS, (Fla. 6th Cir.App.Ct. July 19, 2010).

County Criminal Court: CRIMINAL LAW – Sentencing – The trial court erred in imposing Public Defender fees without informing Appellant he had a right to a hearing to contest the amount. Reversed and remanded with directions.  Swart v. State, No. CRC0802412CFAES, (Fla. 6th Cir.App.Ct. April 20, 2010).

County Criminal Court: CRIMINAL LAW – SentencingStatutory construction – In a case involving a charge of DUI, the action of the trial court, in crediting time previously spent in a residential treatment program after the offense was committed but prior to the imposition of sentence, was lawful and not in conflict with Florida Statute § 316.193 (6) (k).  Trial court’s judgment and sentence affirmed.  State v. Sarantos, No. CRC08-00038APANO (Fla. 6th Cir.App.Ct. April 17, 2009).

County Criminal Court: CRIMINAL LAW- Sentencing -trial court erred in imposing fines and costs- trial court failed to orally pronounce any citation of authority, the written judgment and order of probation -trial court erred in imposing the public defender fees without informing appellant he had the right to a hearing to contest the amount.  Affirmed in part; reversed in part Cousineau v. State, , No. 0701740CFAWS ( Fla. 6th Cir. App. Ct. May 5, 2008).

County Criminal Court: CRIMINAL LAW – Sentencing – The Parks Program was not incarceration for purposes of §316.193(6)(b). Sentence reversed. State v. Kliewer, No. CRC 06-37 APANO (Fla. 6th Cir. App.Ct. December 29, 2007).

County Criminal Court: CRIMINAL LAW – Sentencing – Trial court was without jurisdiction to revoke defendant’s probation because the time the defendant served on probation plus the time he was given as jail credit exceeded the statutory maximum prior to the time his probation was revoked. Order revoking probation vacated.  Pitts v. State, No. CRC 05-45 APANO, (Fla. 6th Cir.App. Ct. Sept. 7, 2007).

County Criminal Court: CRIMINAL LAW – Sentencing -  Requiring defendant to relinquish driver’s license as a condition of her release pursuant to Fla. R.Crim.P. 3.212(d) because she was found incompetent to stand trial is appropriate. Petition for Writ of Certiorari denied. Hammonds v. State,  No. CRC 06-45 APANO, (Fla. 6th Cir. App.Ct. January 10, 2007).

County Criminal Court: CRIMINAL LAW – Sentencing – Florida Statute 948.30, which provides for electronic monitoring of sex offenders, did not apply to appellee in this case, where he was placed on probation for DUI. Order of trial court affirmed.  Florida v. Watkins, No. CRC0602007CFAES ((Fla. 6th Cir. App. Ct. October 19, 2006).

County Criminal Court: CRIMINAL LAW – Sentencing. Sentence was not vindictive where the trial judge was not involved in plea negotiations and the defendant could not prove actual vindictiveness. Sentence affirmed. Truncer v. State, No. CRC 05-41 APANO, (Fla. 6th Cir.App.Ct. Feb. 20, 2006).

County Criminal Court: CRIMINAL LAW – Sentencing – When a trial court withholds adjudication, it must also impose probation pursuant to statute and rule. Sentences reversed. State v. Lai, No. CRC 05-10 APANO, (Fla. 6th Cir.App.Ct. Sept. 21, 2005).

County Criminal Court: CRIMINAL LAW – Sentencing – When a trial court withholds adjudication, it must also impose probation pursuant to statute and rule. Sentence reversed. State v. Burford, No. CRC 05-24 APANO, (Fla. 6th Cir.App.Ct. Sept. 21, 2005).

County Criminal Court: CRIMINAL LAW – Sentencing – When a trial court withholds adjudication, it must also impose probation pursuant to statute and rule. Sentence reversed. State v. Weyand, No. CRC 05-25 APANO, (Fla. 6th Cir.App.Ct. Sept. 7, 2005).

County Criminal Court: CRIMINAL LAW – Sentencing – When a trial court withholds adjudication, it must also impose probation pursuant to statute and rule. Sentence reversed. State v. Mallett, No. CRC 05-19 APANO, (Fla. 6th Cir.App.Ct. Sept. 7, 2005).

County Criminal Court: CRIMINAL LAW – Sentencing – When a trial court withholds adjudication, it must also impose probation pursuant to statute and rule. Sentence reversed. State v. Becker, No. CRC 05-9 APANO, (Fla. 6th Cir.App.Ct. August 24, 2005).

County Criminal Court: CRIMINAL LAW – Sentencing – When a trial court withholds adjudication, it must also impose probation pursuant to statute and rule. Sentence reversed in part. State v. Williams, No. CRC 05-22 APANO, (Fla. 6th Cir.App.Ct. August 22, 2005).

County Criminal Court: CRIMINAL LAW – Sentencing – When a trial court withholds adjudication, it must also impose probation pursuant to statute and rule. Sentence reversed. State v. Empey, No. CRC 05-8 APANO, (Fla. 6th Cir.App.Ct. August 19, 2005).

County Criminal Court: CRIMINAL LAW – Sentencing – Error for the trial court to withhold adjudication without also imposing probation. Sentence reversed. State v. Lindner, No. CRC 05-5 APANO, (Fla. 6th Cir.App.Ct. July 12, 2005).

County Criminal Court: CRIMINAL LAW – Sentencing – Error not to impose restitution where defendant admitted obtaining property by worthless check. Case remanded with instructions to impose restitution. State v. Cunningham, No. CRC 04-60 APANO, (Fla. 6th Cir.App.Ct. July 8, 2005).

County Criminal Court: CRIMINAL LAW – Sentencing – As long as enhanced penalty remains a misdemeanor, then the State need not allege prior DUI convictions in charging document. Judgment and sentence affirmed. Wagner v. State, No. CRC 04-25 APANO, ( Fla. 6 th Cir.App.Ct. June 29, 2005).

County Criminal Court: CRIMINAL LAW – Sentencing – DUI statute §322.28(2), which provides for driver’s license suspensions, applied to DUI’s involving bicylcles. Therefore, the defendant who was DUI on a bicycle properly had his driver’s license suspended. – Sentence affirmed. Smith v. State, No. CRC 04-36 APANO (Fla. 6th Cir. App. Ct. Jan. 11, 2005).

County Criminal Court: CRIMINAL LAW – Sentencing – Merely because the sentence was harsher than that offered by the State prior to trial does not make it vindictive. There was no judicial participation in the plea negotiations and the record provided sufficient justification for the increased sentence. However, the State conceded that the driver’s license revocation was improper. - Sentence affirmed in part. Dalzell v. State, No. CRC 02-5460 APANO (Fla. 6th Cir. App. Ct. Jan. 5, 2005).

County Criminal Court:  COUNTY ORDINANCE – Adult Entertainment - CRIMINAL LAW – Sentencing – Pinellas County Code, Section 42-144(a)(3) and Section 6-2(c)(3) were not unconstitutionally vague – term “cleavage of the nates of the human buttocks” is sufficiently clear – trial court did not err in denying motion for judgment of acquittal – state presented sufficient evidence to sustain motion - trial court did err by imposing adjudication of guilty, apparently for the sole reason that defendant exercised her right to go to trial -- Order affirmed, in part, and reversed, in part.  McComish v. State, No. 03-00020 APANO (Fla. 6th Cir. App. Ct. July 9, 2004).

County Criminal Court: CRIMINAL LAW – Sentencing – Third DUI conviction within 10 years of previous DUI conviction required mandatory 30-day jail time. – Sentence reversed. State v. Ozias, No. CRC 03-41 (Fla. 6th Cir.App.Ct. Feb. 24, 2004).

The trial court did not abuse its discretion in ordering restitution in the amount of $6038.67 at the rate of $175.00 a month where defendant testified that he is employed full-time and earns $1720.00 a month, he is currently going through bankruptcy, his wife does not work, he supports his wife and two children, ages 9 and 11, his mother-in-law lives with him, and his expenses are $1700 per month, which includes fees and costs for felony probation, counseling that he is ordered to attend two nights a week, probation costs for the DUI, electric, water, food, an $830.00 mortgage payment and a car payment. The defendant is perfectly able to work extra hours either at his current job or at an additional part-time job to fulfill his obligation.  Swendson v. State, No. CRC 00-14568 CFANO (Fla. 6th Cir. Ct. March 20, 2001).

The trial court committed reversible error in allowing the state to amend an information to include a charge of stalking after the jury was sworn.  The trial court admitted the error, but found it harmless.  Harmless error test places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.  Because the state failed to present a prima facie case of harmlessness, the trial court’s denying defendant’s amended motion for new trial was reversed and the case remanded.  Calhoun v. State, No. CRC 00-05621 CFANO (Fla. 6th Cir. Ct. January 4, 2001).

Restitution in the amount of $8600.00 was properly ordered where defendant testified that she received $589.00 per month in Social Security Disability payments as the result of a mental disorder which prevented her from working, and her expenses totaled approximately $463.00 per month, leaving her with $126.00 per month, of which only $75.00 was ordered for restitution.  Defendant had no dependents and received some support from her father.  Furthermore, no testimony was given whether the defendant’s mental disorder was controllable or curable, and no documentation was provided to substantiate her claim that she was unable to work.  Peterson v. State, No. CRC 00-03670 CFANO (Fla. 6th Cir. Ct. October 25, 2000).

If a defendant is convicted of his third DUI within five years of a prior conviction, then Florida Statute 316.193(6)(c) requires a jail sentence. The remoteness of the first conviction is not to be considered. State v. Mangum, No. CRC 95-5442 CFANO (Fla. 6th Cir. Ct. Dec. 13, 1995).

Suspending the defendant's driver's license for two years was permitted where the defendant was found guilty of her second DUI offense not within ten years from the date of her first DUI conviction. The combined incarceration and probation portion of the sentence, however, could not exceed one year. Rose v. State, No. CRC 96-1689 CFANO (Fla. 6th Cir. Ct. Aug. 14, 1996).

Statute of Limitations

County Criminal Court: CRIMINAL LAW – Statute of Limitations – Criminal conviction reversed because prosecution was not commenced within the time allowed by applicable statute of limitations, regardless of whether or not the crime was considered to be a continuing offense.  Conviction reversed; case remanded with directions to enter judgment of acquittal and to vacate and set aside conviction and sentence.  Csulloghne v. State, No. 11-00070APANO (Fla. 6th Cir. App. Ct. January 30, 2013).

County Criminal Court: CRIMINAL LAW – Statute of Limitations – § 775.15, Fla. Stat., required prosecution commence within two years of offense.  Here, crimes were alleged to have occurred in 1999 and misdemeanor information was filed that year, but the capias was not served on defendant until 2011.  The record contains no evidence that a diligent search to ascertain defendant’s whereabouts was conducted during the statute of limitations period, which was required even though he was out of state.  Petition granted with instructions to trial court to dismiss information.  Roberts v. State, No. 12-00034APANO (Fla. 6th Cir. App. Ct. September 4, 2012).

County Criminal Court : CRIMINAL LAW --- Statute of Limitations --- Trial court’s finding that §775.15 allowed only a five-year absolute limitation to begin prosecution was error. State should be allowed to show process executed without unreasonable delay. Order granting defendant’s motion to dismiss reversed. State v. Jones, No. CRC 06-76 APANO, ( Fla. 6th Cir.App.Ct. March 7, 2008).

County Criminal Court: CRIMINAL LAW – Statute of Limitations – Defendant who resided in Canada and occasionally visited Florida during limitations period, did not have a reasonably ascertainable place of abode or work within the state. Order of Dismissal reversed. State v. Meakings, No. CRC 07-2 APANO, (Fla. 6th Cir. Ct. App. Feb. 12, 2008).

County Criminal Court: Criminal Law – Statute of Limitations – State failed to re-establish a lost or destroyed pleading pursuant to Florida statute 71.011 and 71.031. Filing an entirely new pleading was not proper. Judgment and sentence reversed with instruction to enter dismissal of charges. Arline v. State, No. CRC 06-23 APANO (Fla. 6th Cir. App. Ct. October 1, 2007).

County Criminal Court: CRIMINAL LAW – Statute of Limitations – Statute of Limitations expired because State failed to demonstrate what steps it took to execute proper documents on defendant. Order dismissing charges affirmed. State v. Damato, No. CRC 05-84 APANO, (Fla. 6th Cir. App. Ct. March 23, 2007).

County Criminal Court:  CRIMINAL LAW – Statute of Limitations – trial court did not err in granting defendant’s motion to dismiss based on failure of State to prosecute second-degree misdemeanor theft charge within one year – five-year statute of limitations provided for by section 812.035(10) does not apply to misdemeanor offenses – doctrine of stare decisis compels appellate court to rely on its previous decision – Order affirmed.  State v. Townsend, No. 03-00052APANO ( Fla. 6th Cir. App. Ct. March 3, 2004).

Mailing a Uniform Traffic Citation via certified mail to the defendant within three months of the crime is commencement of prosecution within the Statute of Limitations period. Burns v. State, No. CRC 94-8095 CFANO (Fla. 6th Cir. Ct. March 3, 1995).

For purposes of the statute of limitations criminal defendants may not negate the state's diligent search by intentionally refusing to sign for certified mail thereby avoiding service. Pauliscak v. State, No. CRC 95-8139 CFANO (Fla. 6th Cir. Ct. March 13, 1996).

Traffic Stop

County Traffic Court: CRIMINAL LAW – Traffic Stop – Trial court did not err in denying motion to suppress. Statements of a citizen informant regarding Appellant’s erratic driving given to Pinellas County Sheriff’s Office 911 operator and passed on to Largo Police Department dispatcher fell under the collective knowledge and fellow officer doctrine; thus, information provided to 911 operator was imputed to the Largo Police Department officer who conducted traffic stop of Appellant.  The statements were sufficient to establish reasonable suspicion for traffic stop.  Order denying motion to suppress affirmed.  Wattam v. State, No. 13-00038APANO (Fla. 6th Cir. App. Ct. December 18, 2013).

County Criminal Court: CRIMINAL LAW – Traffic Stop – Trial court did not err in denying motion to suppress in DUI case.  The trial court found that law enforcement had reasonable suspicion to conduct investigatory stop upon observing vehicle weaving within lane and waiting six to eight seconds before proceeding from green light, and drifting to the right and nearly hitting curb before jerking back the other way.  The trial court’s finding was supported by competent substantial evidence.  Order denying motion to suppress affirmed.  Staggs v. State, No. CRC13-00012APANO (Fla. 6th Cir. App. Ct. September 6, 2013).

County Criminal Court:  CRIMINAL LAW – Traffic Stop – Officer had probable cause to conduct a traffic stop on Appellant.  Trial court properly denied Appellant’s motion to suppress.  Trial court affirmed.   Hall v. State, No. 11-CF-000947-WS (Fla. 6th Cir. App. Ct. July 23, 2012).

County Criminal Court:  CRIMINAL LAW – Traffic Stop – Officer properly made an extra-jurisdictional stop of Appellant.  Trial court affirmed.   Anderson v. State, No. 10-CA-005908-WS (Fla. 6th Cir. App. Ct. October 7, 2011).

County Criminal Court: CRIMINAL LAW – Traffic Stop – Trial court erred in granting Appellee’s motion to suppress.  Officer observed a truck stopped in the roadway; behind the truck two people were standing and one person was lying on the ground near a wet spot.  Officer approached and the truck drove away; officer observed driver’s side tires very close to median as truck continued to drive on the roadway.  Under the totality of the circumstances, officer was justified in conducting a traffic stop to determine the reason for the unusual operation of the truck.  Order granting motion to suppress reversed; case remanded for further proceedings.  State v. Pena, No. CRC10-00066APANO (Fla. 6th Cir. App. Ct. June 23, 2011).

County Criminal Court: CRIMINAL LAW – Traffic stop – Evidence – alleged traffic citations used to form the reasonable suspicion necessary to perform a lawful investigatory stop of an auto, must be objectively reasonable.  A traffic officer’s mistake of law as to what constitutes a traffic violation, no matter how reasonable, does not provide objectively reasonable grounds for reasonable suspicion.  Other facts, which were objectively reasonable, and that could have formed the reasonable suspicion for the investigatory stop, were not presented and argued to the trial court, and thus were not preserved for appeal.  Trial court properly granted motion to suppress evidence gained from the unlawful stop.  Appeal denied, motion affirmed, with dissenting opinion.  State v. Ryan E. Clancey, Appeal No. 08-00087APANO (Fla.6th Cir.App.Ct. August 26, 2009).

County Criminal Court:  CRIMINAL LAW: Traffic Stop – DETENTION-– detention of the appellant, while waiting for the arrival of the STEP unit deputy to conduct the investigation, did not transform the encounter  into a seizure without probable cause- Having probable cause to arrest the appellant himself, it is clear that the deputy  was clearly justified in detaining the appellant for the time it took to get a more highly specialized officer on the scene.  Order affirmed.  Littlejohn v. State, No. 0605304CFAWS, ( Fla. 6th Cir. App. Ct. November 30, 2007).

County Criminal Court: CRIMINAL LAW – Traffic Stop– trial court erred in denying motion to suppress- the officer did not have the requisite founded suspicion of DUI to conduct a lawful traffic stop- the only evidence regarding the driving was that the vehicle was drifting to the left towards the center median and suddenly turned right. Order reversed.  Piper v. State, 0604498CFAES, (Fla. 6th Cir. App. Ct. May 1, 2007).

County Criminal Court:  CRIMINAL LAW – Traffic Stop – DETENTION-– detention of the appellant, while waiting for the arrival of the STEP unit deputy to conduct the investigation, did not transform the encounter  into a seizure without probable cause- Having probable cause to arrest the appellant himself, it is clear that the deputy  was clearly justified in detaining the appellant for the time it took to get a more highly specialized officer on the scene.  Order affirmed.  Renz v. State,  No. 064882CFAES, (Fla. 6th Cir. App. Ct. April 12, 2007).

County Criminal Court:  CRIMINAL LAW – Traffic Stop – trial court erred in granting motion to suppress-driver’s consent to search provided for legal detention- finding of marijuana during the consent search provided  officer probable cause to search the rest of the vehicle, including appellee’s knapsack on the rear seat of the vehicle.  Order reversed.   State v. Castles,  No. 0300329CFAES (Fla. 6th Cir. App. Ct. July 31, 2006).  

County Criminal Court: CRIMINAL LAW – Traffic Stop –trial court erred in granting motion to suppress;  citizen informant provided officer with defendant’s name, type of vehicle, address  of where he worked and when he went to work; officer  confirmed that defendant’s license was suspended; officer observed the vehicle described at the time and place the caller told him defendant would be there- under the totality of the circumstances, the officer had reasonable suspicion that it was the defendant. Reversed.  State v. Clark,  055313CFAES (Fla. 6th Cir. App. Ct. June 20, 2006)

County Criminal Court: CRIMINAL LAW – Traffic Stop –trial court did not error in granting motion to suppress- based on totality of circumstances, officer did not have requisite founded suspicion of criminal activity to conduct a stop –the officer testified that he had access to the owner's height and age; had seen defendant; and had determined the defendant to be a different person from the registered owner before effecting the stop.- it is never asserted nor is there any indication that the defendant committed any traffic offense or was otherwise committing or about to commit a crime. -- Order affirmed.  State v. Phelps, Patel v. State, 05-2890CFAES (Fla. 6rh Cir. App. Ct. October 25, 2005)

County Criminal Court: CRIMINAL LAW – Traffic Stop – trial court did not error in granting motion to suppress- state failed to prove fresh pursuit under Section 901.25, Florida Statutes, or common law and Court found the state failed to prove exigent circumstances for the stop. Order affirmed. State v. Luna, CRC0501461CFAES (Fla. 6th Cir. App. Ct. August 18, 2005).

County Criminal Court: CRIMINAL LAW – Traffic stop – Defendant’s arrest for disorderly conduct was justified where defendant was stopped for speeding, gave the officer “the finger,” loudly used profanity, got out of his car, approached the officer and threatened to “beat his a ---.” Evidence showed the defendant interfered with another officer’s investigation of another traffic matter, and an onlooker was disturbed by the defendant’s outburst. Judgment and sentence affirmed. Mougros v. State, No. CRC 04-46 APANO ( Fla. 6 th Cir.App.Ct. May 25, 2005).

County Criminal Court: CRIMINAL LAW – Traffic Stop – based on totality of circumstances, coupled with officer’s training and experience, officer had requisite founded suspicion of criminal activity to conduct a DUI stop – vehicle swerved off the roadway onto the shoulder three times in a matter of approximately half of a mile- trial court’s denial of motion to suppress DUI evidence must be reversed -- Murphy v. State, 04-00663CFAES (Fla. 6th Cir. App. Ct. April 5, 2005).

County Criminal Court: CRIMINAL LAW – Traffic Stop– trial court did not err in granting motion to suppress- the officer did not have the requisite founded suspicion of DUI to conduct a lawful traffic stop- the only evidence regarding the driving was that the passenger side tires went over the line twice and that appellee made a u-turn --Order affirmed. Christiansen v. State, CRC0400663CFAES (Fla. 6th Cir. App. Ct. April 5, 2005).

County Criminal Court:  CRIMINAL LAW – Traffic Stop – based on totality of circumstances, coupled with officer’s training and experience, officer had requisite founded suspicion of criminal activity to conduct a DUI stop – defendant was observed driving carelessly – evidence supported officer’s testimony that he believed driver was impaired - trial court’s denial of motion to suppress DUI evidence must be affirmed -- Order affirmed.  Patel v. State, No. 03-00092 APANO (Fla. 6th Cir. App. Ct. Sept. 23, 2004).

County Criminal Court:  CRIMINAL LAW – Traffic Stop – inoperable taillight – trial court erred in denying defendant’s motion to suppress DUI evidence – defendant did not commit a traffic infraction for driving with an inoperable taillight - 3 of the vehicle’s 4 taillights were still operable in accordance with Florida Statutes, § 316.221 -- Order reversed.  Dwelly v. State, No. 03-00062 APANO (Fla. 6th Cir. App. Ct. Sept. 8, 2004).

County Criminal Court:  CRIMINAL LAW – Traffic Stop – curtilage of defendant’s home – accessibility and visibility are the determinative factors in analyzing whether a driveway is within the curtilage of a house – defendant had no reasonable expectation in his driveway after being observed running a stop sign – trial court’s denial of motion to suppress DUI evidence must be affirmed -- Order affirmed.  Knight v. State, No. 03-00047 APANO (Fla. 6th Cir. App. Ct. Sept. 8, 2004).

County Criminal Court:  CRIMINAL LAW – traffic stop – trial court erred in granting motion to suppress and dismissing information – arresting officer observed defendant driving at 8 p.m. on a Saturday night on a dirt access road with a transporter tag – officer’s observation of defendant driving at a time and location inconsistent with business license justified traffic stop -- Order reversed.  State v. Ghasri, No. 02-22240 CFANO (Fla. 6th Cir. App. Ct. Jan. 30, 2004).

County Criminal Court:  CRIMINAL LAWTraffic Stop – motion to suppress/totality of circumstances – trial judge did not err in denying motion to suppress – officer had reasonable or founded suspicion to initiate traffic stop based on prior observation of vehicle parked behind closed business at 2:30 a.m., and based on observation of several suspicious items in unoccupied vehicle, including black gloves, blue blocker sunglasses, a wig, and a screwdriver – Order affirmed.  Ludtka v. State, No. 02-16836 (Fla. 6th Cir. App. June 16, 2003).

County Criminal Court:  CRIMINAL LAW – Traffic Stop – motion to suppress/investigatory stop – trial court erred in granting motion to suppress – identity should be suppressed only if investigatory stop is unlawful – officer had reasonable suspicion to commence investigatory stop when he first determined that the registered owner had no valid license and that person driving vehicle matched description of owner – stop was lawful and identity should not have been suppressed – Order reversed and charges reinstated.  State v. Haskell, No. 02-20803 (Fla. 6th Cir. App. Ct. April 28, 2003).


CRIMINAL PROCEDURE

County Criminal Court: CRIMINAL PROCEDURE – Post Conviction Relief – County Criminal Court: CRIMINAL PROCEDURE – Trial court did not err in denying Appellant’s 3.850 as untimely, successive, and meritless. Appellant’s 1996 plea of no-contest to DUI of prescription medicine does not result in a manifest injustice – Order denying postconviction relief is affirmed and Appellant directed to show cause why the court should not impose sanctions limiting his right to appear pro se based on his incessant filing of meritless pleadings.  Broom v. State, CRC11-00066APANO (Fla. 6th Cir. App. Ct. December 19, 2011).

County Criminal Court:  CRIMINAL PROCEDURE – County court properly exercised the jurisdiction with which it is invested in ruling on Petitioner’s motion to dismiss county court charges.  County court did not improperly assume jurisdiction in order to make ruling, and Petitioner has adequate legal remedy of plenary appeal if convicted.  Writ of prohibition is therefore not available to Petitioner.  Petition denied.  Mocio v. State, No. 11-00058APANO (Fla. 6th Cir. App. Ct. October 4, 2011).

County Criminal Court: CRIMINAL PROCEDURE – Retrial did not violate double jeopardy principles.  Appellate court previously ordered retrial of DUI charge because inadmissible evidence had been used against Appellant.  Retrial due to trial court error was not a double jeopardy violation.  Also, appellant could not appeal denial of motion to suppress because he did not preserve the issue for appeal.  Judgment and sentence affirmed.  Soares v. State, No. 09-00024APANO (Fla. 6th Cir. App. Ct. August 1, 2011).

County Criminal Court: CRIMINAL PROCEDURE – Jurors and jury instructions – Jury instruction was not erroneous and did not constitute fundamental error when language not included in instruction did not relate to an element of the charged offense or an issue disputed at trial. Judgment and sentence affirmed. Tabitha Nicole Crosby v. State, No. CRC09-00005APANO (Fla. 6th Cir.App.Ct. November 16, 2009).

County Criminal Court: CRIMINAL PROCEDURE --- Anders brief filed, and no error appeared on the record. Judgment and sentence affirmed. Kennedy v. State, No. CRC 07-88 APANO (Fla. 6th Cir. App. Ct. May 15, 2008).

County Criminal Court: CRIMINAL PROCEDURE – Anders brief filed, and no error appeared on the record. Judgment and sentence affirmed. Erickson v. State, No. CRC 07-37 APANO (Fla. 6th Cir. App. Ct. Feb. 15, 2008).

County Criminal Court: CRIMINAL PROCEDURE – Anders brief filed, and no error appeared on the record of defendant’s no contest plea. Judgment and sentence affirmed. Hilbert v. State, No. CRC 07-76 APANO (Fla. 6th Cir. App. Ct. Feb. 11, 2008).

County Criminal Court: CRIMINAL PROCEDURE – Trial court erred in not granting State’s motion for continuance and sua sponte dismissing case. Order of dismissal reversed. State v. Yaple, No. CRC 07-8 APANO, ( Fla. 6th Cir.App.Ct. Sept. 24, 2007).

County Criminal Court: CRIMINAL PROCEDURE -  No error in proceeding below on review of Anders brief. Sentence affirmed. Southerland v. State,  No. CRC 05-91 APANO, (Fla. 6th Cir. App.Ct. January 4, 2007).

County Criminal Court: CRIMINAL PROCEDURE – Appellate court agreed with Anders brief, no error in proceedings below. Judgment and sentence affirmed. Worley v. State, No. CRC 05-1 APANO, (Fla. 6th Cir.App.Ct. August 1, 2005).

County Criminal Court: CRIMINAL PROCEDURE – Anders brief fails to demonstrate error. Although the trial court may have erred in requiring the defendant to be present at trial, the defendant failed to demonstrate prejudice. – Judgment and sentence affirmed. McCrary v. State, No. CRC 03-73 APANO (Fla. 6th Cir. App. Ct. Dec. 2, 2004).

Collateral Estoppel

In the first case in which the defendant was tried with indecent exposure, the judge did not make a finding of law that the jail was not a public place, and the jury could have rationally reached its verdict without finding that the jail was not a public place.  Therefore, in a subsequent trial where defendant was charged with indecent exposure and the defendant argued that the jail was not a public place, collateral estoppel was  inapplicable and the trial court’s denial of the motion to dismiss was properly affirmed. Wilson v. State, No. CRC 00-14320 CFANO (Fla. 6th Cir. Ct. June 5, 2001).

The state is not collaterally estopped from bringing an obstruction of officer without violence charge because the previous case, although arising out of the same incident, was for disorderly conduct. State v. Kennedy, No. CRC 94-6829 CFANO (Fla. 6th Cir. Ct. June 21, 1995).

Confidential Expert

Since the motion to appoint confidential expert satisfied the threshold requirements of Florida Rule of Criminal Procedure 3.216(a), the trial court had no discretion to deny the motion. Hampton v. Grube, No. CRC 94-18266 CFANO (Fla. 6th Cir. Ct. March 8, 1995).

Continuance

County Criminal Court: CRIMINAL PROCEDURE – Continuance – Dismissal.  Trial court abused discretion by denying Appellant’s motion for continuance and dismissing case.  Appellant moved for continuance because the victim was not served with a subpoena to testify.  Appellant did not abandon prosecution or show lack of diligence and Appellee would not have been prejudiced by granting a continuance.  Trial court orders denying motion for continuance and granting dismissal of case reversed; case remanded to trial court for further action.   State v. Keefer, No. 13-00032APANO (Fla. 6th Cir. App. Ct. November 18, 2013).

County Criminal Court: CRIMINAL PROCEDURE – Continuance.  Trial court abused its discretion in denying Appellant’s motion for continuance and granting Appellee’s motion to dismiss for lack of prosecution.  The record did not reflect delay or lack of prosecution on Appellant’s behalf, and granting the continuance requested by Appellant would not prejudice Appellee.  Orders denying Appellant’s motion for continuance and granting Appellee’s motion to dismiss reversed; case remanded to trial court.  State v. Abraham, No. 13-00006APANO (Fla. 6th Cir. App. Ct. June 10, 2013).

County Criminal Court: CRIMINAL PROCEDURE – Continuance – Trial court erred in denying State’s motion for a continuance due to unavailability of witness.  Motion for continuance should have been granted when State exercised due diligence by issuing subpoena to necessary witness who would have testified favorably for State, witness would have been available and willing to testify, and denial of motion for continuance prejudiced State because it could not proceed without witness.  Reversed and remanded with instructions.  State v. Rogers, CRC09-00032APANO (Fla. 6th Cir. App. Ct. April 20, 2012).

County Criminal Court: CRIMINAL PROCEDURE – Continuance – Since the State met all requirements for a continuance, its motion should have been granted, rendering the subsequent granting of Appellee’s Motion to Suppress in error.  Reversed.   State v. Sanders, No. CRC10008071CFAWS, (Fla. 6th Cir.App.Ct. June 1, 2011).

County Criminal Court: CRIMINAL PROCEDURE – Continuance – Trial judge’s sua sponte dismissal of charges was error because the court failed to follow the correct procedure in dismissing the charges or ruling on the State’s motion to continue. Order dismissing case reversed. State v. Hinds, No. CRC 07-9 APANO, (Fla. 6th Cir. App. Ct. Feb. 27, 2008).

County Criminal Court: CRIMINAL PROCEDURE – Continuance – Defendant not entitled to continuance when he wanted it hoping the law would change in his favor. Judgment and sentence affirmed. Pippin v. State, No. CRC 06-59 APANO (Fla. 6th Cir. App. Ct. December 19, 2007).

County Criminal Court: CRIMINAL PROCEDURE – Continuance – Trial court erred in dismissing charges as a sanction for police officer failing to appear as a witness because the court failed to consider less severe sanctions and failed to make a finding that defendant was prejudiced. Order of dismissal reversed. State v. Madormo, No. CRC 05-47 APANO, ( Fla. 6th Cir.App.Ct. June 13, 2006).

County Criminal Court: CRIMINAL PROCEDURE – Continuance – Trial court erred in dismissing charges as a sanction for police officer failing to appear as a witness because court failed to consider less severe sanctions and failed to make a finding that the defendant was prejudiced. Order of dismissal reversed. State v. Hinton, No. CRC 05-77 APANO, (Fla. 6th Cir.App.Ct. May 11, 2006).

County Criminal Court: CRIMINAL PROCEDURE – Continuance – Trial court erred in dismissing charges as a sanction for police officer failing to appear as a witness because court failed to consider less severe sanctions and failed to make a finding that the defendant was prejudiced. Order of dismissal reversed. State v. Oliver, No. CRC 05-78 APANO, (Fla. 6th Cir.App.Ct. May 11, 2006).

County Criminal Court: CRIMINAL PROCEDURE – Continuance – Trial court erred in dismissing charges as a sanction for police officer failing to appear as a witness because court failed to consider less severe sanctions and failed to make a finding that the defendant was prejudiced. Order of dismissal reversed. State v. Rucker, No. CRC 05-80 APANO, (Fla. 6th Cir.App.Ct. May 11, 2006).

County Criminal Court: CRIMINAL PROCEDURE – Continuance – Trial court erred in failing to consider factors before denying State’s motion to continue. Order of dismissal reversed. State v. Rigel, No. CRC 04-14 APANO, ( Fla. 6 th Cir.App.Ct. June 2, 2005).

County Criminal Court: CRIMINAL PROCEDURE – Continuance – To prevail on a motion to continue, the movant must establish (1) prior due diligence to obtain the witness's presence; (2) that substantially favorable testimony would have been forthcoming; (3) that the witness was available and willing to testify; and (4) that the denial of the continuance would cause material prejudice- court did not consider four factors-judgment reversed- State v. Thomas, 0403536CFAES (Fla. 6th Cir. App. Ct. April 11, 2005).

County Criminal Court: CRIMINAL PROCEDURE – Continuance – To prevail on a motion to continue, the movant must establish (1) prior due diligence to obtain the witness's presence; (2) that substantially favorable testimony would have been forthcoming; (3) that the witness was available and willing to testify; and (4) that the denial of the continuance would cause material prejudice- it is implicit in the exchange before the court that the four factors were in fact considered-state was not entitled to a continuance based on the above factors-judgment affirmed- State v. Schultz, , No. 04-3179CFAES (Fla. 6th Cir. App. Ct. February 15, 2005).

County Criminal Court: CRIMINAL PROCEDURE – Continuance – To prevail on a motion to continue, the movant must establish (1) prior due diligence to obtain the witness's presence; (2) that substantially favorable testimony would have been forthcoming; (3) that the witness was available and willing to testify; and (4) that the denial of the continuance would cause material prejudice- State was entitled to a continuance based on the above factors-trial court erred in failing to consider four factors - Reversed and remanded. State v. Mendoza, No. 03-05289CFAES (Fla. 6th Cir. App. Ct. January 3, 2005).

County Criminal Court: CRIMINAL PROCEDURE – Continuance – To prevail on a motion to continue, the movant must establish (1) prior due diligence to obtain the witness's presence; (2) that substantially favorable testimony would have been forthcoming; (3) that the witness was available and willing to testify; and (4) that the denial of the continuance would cause material prejudice- State was entitled to a continuance based on the above factors-judgment reversed- State v. Starrett, No. 04-0141CFAES (Fla. 6th Cir. App. Ct. October 29, 2004).

Defendant was denied the right to adequate preparation for his defense when the state was allowed to consolidate two separate offenses on the day of trial and the defendant was prepared to testify on one offense but not the other. Hearns v. State, No. CRC 94-17250 CFANO (Fla. 6th Cir. Ct. July 20, 1995).

Counsel

County Criminal Court: CRIMINAL PROCEDURE – Counsel.  While the trial judge did not specifically announce that he was conducting a Nelson hearing the record reflects the his inquiry was the type necessary to determine whether trial counsel was and had been effective in his representation of the particular defendant.  Moreover, the trial judge addressed the very issue raised by the defendant in his assignment of incompetence.  Where the trial judge asked appellant if he had any more concerns and the appellant did not explain any improper representation, the appellant’s claim of improper representation was of the generalized nature that does not require a Nelson inquiry.  Appellant did not further complain to the court of his attorney’s representation through two trials was an adoption of his attorney’s competency.  The extent of the trial court’s Nelson inquiry was not an abuse of discretion; judgment and sentence affirmed.  Richard A. Ulrich, Appeal No. 08-00058APANO (Fla. 6th Cir.App.Ct. September 30, 2009).

County Criminal Court: CRIMINAL PROCEDURE – Counsel – ineffective assistance – questioning of witnesses.  An appellant may properly raise a claim of ineffective assistance of trial counsel on direct appeal only in rare circumstances, that is where the ineffectiveness is apparent on the face of the record and where it would be a waste of judicial resources to require hearing by the trial court.  Defense counsel’s decision to impeach the credibility of the State’s critical witness was a prudent, strategic decision. No rule of exclusion would have excluded a deputy’s comments about statements made by a witness, other than the appellant, in the course of the accident investigation.  Counsel did not provide ineffective assistance where counsel’s performance did not fall outside the range of reasonable professional assistance, and the overwhelming evidence did not support the argument that there was a reasonable probability that the results of the proceeding would have been different.  Where defense counsel asked police officer questions about the appellant’s prescribed-drug use, defense counsel “opened the door” to allow the State to ask questions to qualify or limit the appellant’s explanation of the drug use, and the trial court did not abuse its discretion in allowing such questioning.  Trial court erroneously ruled on a Fla. R. Crim. P. 3.800(b)(2) outside of the sixty days allowed in the Rule, and assessed a higher fine than allowed by statute in effect at the time of the offense.  Judgment affirmed, remanded for resentencing.  Vickie Sue Sander v. State, No. 08-00042APANO (Fla. 6th Cir.App.Ct. August 31, 2009).

County Criminal Court: CRIMINAL PROCEDURE --- Counsel --- Trial court erred in failing to conduct Faretta hearing where no written order of no incarceration was filed. Judgment and sentence reversed. Boyd v. State, No. CRC 07-7 APANO, (Fla. 6th Cir. App. Ct. April 9, 2008).

Discovery

County Criminal Court: CRIMINAL PROCEDURE --- Discovery --- Alleged discovery errors were properly resolved by trial court. Judgment and sentence affirmed. Curtis v. State, No. CRC 06-62 APANO, (Fla. 6th Cir. App. Ct. April 4, 2008).

County Criminal Court: CRIMINAL PROCEDURE – Discovery violation/dismissal – trial court excluded two of the state's witnesses due to a discovery violation- the transcript on the hearing on the Motion for Sanctions is not part of the record, notwithstanding the opportunity afforded the state to supply the transcript- appellant has failed to demonstrate a basis for reversal in this record- Judgment affirmed State v. Tucker, No. 03-05424CFAES (Fla. 6th App. Ct. February 15, 2005).

Dismissal

County Criminal Court:  CRIMINAL PROCEDURE—Dismissal.  The trial court properly granted Appellee’s motion to dismiss, finding the term “entering” in § 775.13(2), Fla. Stat., not to be ambiguous or vague, and, applying the plain meaning of the term, that Appellee could not be convicted of violating the statute by failing to register as a convicted felon in Pasco County, having never physically entered the county between the time of conviction and sentencing in the previous case, and the time charges were filed in this case.  Affirmed.  State of Florida v. Tina Hess, No. 13-CF-4590-ES (Fla. 6th Cir. App. Ct. June 20, 2014).

County Criminal Court: CRIMINAL PROCEDURE – Appellate court was without authority to reverse trial court’s order denying Appellant’s motion to dismiss based on immunity from prosecution, when trial court made correct factual findings and legal conclusion that Appellant failed to establish a basis for the motion to dismiss.  Petition for issuance of writ of prohibition denied. Schittino v. State, No. 13-00011APANO (Fla. 6th Cir. App. Ct. March 19, 2013).

County Criminal Court: CRIMINAL PROCEDURE – Dismissal – Trial court did not err in denying motion to dismiss charges on double jeopardy grounds, when Appellant was charged with two counts of unlicensed contracting.  There was no double jeopardy violation because one count alleged unlicensed glass installation and the other count alleged unlicensed siding installation; the counts reflected two separate and distinct types of work requiring different specialty contracting licenses.  Order denying Appellant’s motion to dismiss affirmed; judgment affirmed.  Kuhl v. State, No. CRC10-00070APANO (Fla. 6th Cir. App. Ct. April 29, 2011).

County Criminal Court: CRIMINAL PROCEDURE – Dismissal – Trial court did not err in denying motion to dismiss due to Appellant’s incompetence to proceed, brought under Fla. R. Crim. P. 3.213(a)(2).  The written order denying the motion made specific findings and provided a time within which competency might be restored.  Trial court’s order affirmed; petition for writ of certiorari denied.  Downs v. State, No. CRC11-00007APANO (Fla. 6th Cir. App. Ct. April 26, 2011).

County Criminal Court: CRIMINAL PROCEDURE – Dismissal – The trial court properly granted Appellee’s motion to dismiss finding that the officers acted in bad faith by not videotaping the DUI investigation of Appellee.  Affirmed.  State v. Schiedenhelm, No. CRC09006627CFAWS, (Fla. 6th Cir.App.Ct. March 4, 2011).

County Criminal Court: CRIMINAL PROCEDURE --- Dismissal – Dismissal was not the appropriate remedy where police did not have authority to investigate matter because it happened on private property and there was no agreement with property owners for enforcement of traffic laws over the property. Order of dismissal reversed. State v. Antonious, No. CRC 04-53 APANO, (Fla. 6th Cir. App. Ct. Feb. 26, 2008).

County Criminal Court : CRIMINAL PROCEDURE – Dismissal – Trial court erred in dismissing new charges where prior dismissal did not state that it was with prejudice. Order of dismissal reversed. State v. Flores, No. CRC 06-24 APANO, ( Fla. 6th Cir.App.Ct. Sept. 4, 2007)

County Criminal Court : CRIMINAL PROCEDURE – Dismissal – Order of dismissal was improper because the questions of “reasonable belief” and “amount of force necessary” under section 776.031 were jury questions even though the defendant claimed there were no disputes of fact about what occurred. Order of dismissal reversed. State v. Lam, No. CRC 06-54 AP, ( Fla. 6th Cir.App.Ct. August 23, 2007).

County Criminal Court: CRIMINAL PROCEDURE – Dismissal – Dismissal was error when the State was never given notice of the defendant’s motion or an opportunity to review the documents allegedly exonerating the defendant. Order of dismissal reversed. State v. Pinzon, No. CRC 05-43 APANO, (Fla. 6th Cir.App.Ct. May 11, 2006).

County Criminal Court: CRIMINAL PROCEDURE – Dismissal – When State failed to ensure the defendant’s presence at trial, dismissal not warranted where no showing of prejudice to defendant made. Order of dismissal reversed. State v. Stuart, No. CRC 05-3 APANO, (Fla. 6th Cir.App.Ct. April 19, 2006)

County Criminal Court: CRIMINAL PROCEDURE – Dismissal – Presence of disputed material facts precluded dismissal. Order of dismissal reversed. State v. Drewes, No. CRC 05-37 APANO, (Fla. 6th Cir.App.Ct. March 6, 2006).

County Criminal Court: CRIMINAL PROCEDURE – Dismissal – Defendant’s act of entering an open but occupied booth in an adult use business, open to the general public, and exposing his penis and masturbating in front of the occupant, is a violation of §800.03, Fla.Stat. (2004)[exposure of sexual organs]. Judgment and sentence affirmed. State v. Cerovich, No. CRC 04-45 APANO, ( Fla. 6 th Cir.App.Ct. June 8, 2005).

County Criminal Court: CRIMINAL PROCEDURE – Dismissal – Florida Rule of Criminal Procedure 3.190(d) provides that a motion to dismiss filed pursuant to 3.190 c (4), shall be denied upon the filing by the state of a traverse which denies material facts- state did not deny material facts- Judgment affirmed -State v. Watkins, No. 03-0425CFAES (Fla. 6th App. Ct. January 18, 2005).

County Criminal Court: CRIMINAL PROCEDURE – Dismissal – Florida Rule of Criminal Procedure 3.190(d) provides that a motion to dismiss filed pursuant to 3.190 c (4), shall be denied upon the filing by the state of a traverse which denies material facts- state filed a traverse in which the state not only denied material facts but also added additional facts-error to grant motion to dismiss- Judgment reversed-State v. Sengstock, No. 03-2219CFAES (Fla. 6th App. Ct. November 15, 2004).

County Criminal Court: CRIMINAL PROCEDURE – Dismissal – Failure of court-appointed interpreter to appear in court did not justify sua sponte dismissal because trial court failed to consider other alternatives and there was no showing that the State was responsible for the appearance of the interpreter. – Order of dismissal reversed. State v. Lai, No. CRC 04-15 APANO (Fla. 6th Cir.App.Ct. Oct. 19, 2004).

County Criminal Court: CRIMINAL PROCEDURE – Dismissal – Trial court improperly dismissed the case because the State’s witnesses failed to appear at trial. The trial court failed to consider other alternatives to dismissal and failed to properly analyze the State’s motion to continue. – Order granting defendant’s motion to dismiss reversed. State v. Coffman, No. CRC 03-45 APANO (Fla. 6th Cir. App. Ct. Sept. 13, 2004).

County Criminal Court :  CRIMINAL PROCEDURE – Dismissal – specificity of uniform traffic citation – magistrate did not err in denying motion to dismiss – uniform traffic citation constitutes a valid charging document - uniform traffic citation issued for careless driving conveyed sufficient information to answer charges – Order affirmed.  Eadie v. State, No. 03-00024APANO (Fla. 6th Cir. App. Ct. March 3, 2004).

County Criminal Court:  CRIMINAL PROCEDURE – Dismissal – issuance of traffic citation sufficient to commence prosecution – Reversed and remanded for full hearing.  State v. Mendoza, No. 02-11945 (Fla. 6th Cir. App. Ct. April 28, 2003).

Trial court properly denied defendant’s motion to dismiss finding that the Florida battery statute is not unconstitutionally vague as applied to parent/child scenarios because the statute conveys sufficiently definite notice of what conduct is proscribed, and there existed a factual question as to whether the defendant’s conduct involved discipline (i.e., whether the “parental privilege” applies) which is a question of fact and normally one for a jury to decide.  Lee v. State, No. CRC 00-08403 CFANO (Fla. 6th Cir. Ct. January 4, 2001).

The trial court did not abuse its discretion in dismissing the case when the officer who was to testify failed to appear when trial was to start originally at 8:30, and failed to appear at 11:00 after the judge had delayed the start of the trial so the state could secure the officer's appearance. State v. Allegretti, No. CRC 95-17190 CFANO (Fla. 6th Cir. Ct. May 15, 1996).

When the officer failed to appear for trial the state did not seek a continuance, nolle prosequi the case or even object to the dismissal, therefore the state failed to preserve the issue for appellate review. Id.

Jurisdiction

County Criminal Court:  CRIMINAL PROCEDURE --- Jurisdiction --- Mutual Aid Agreement did not authorize officer outside his jurisdiction to stop a driver.  Mutual Aid Agreement required both personal jurisdiction over the driver and probable cause to make a traffic stop.  Trial court’s order granting motion to suppress evidence affirmed. State v. Medford, No. CRC 07-47 APANO ( Fla. 6th Cir.App.Ct. June 12, 2008).

County Criminal Court: CRIMINAL PROCEDURE - Jurisdiction - Failure of parent or guardian to sign demand for voluntary waiver of jurisdiction was not fatal to the motion where the defendant was over the age of 18 when the motion was made. Petition for writ of prohibition denied. Yerman v. State, No. CRC 06-79 APANO, (Fla. 6th Cir. App.Ct. January 31, 2007)

County Criminal Court : CRIMINAL PROCEDURE—Jurisdiction; once the trial court terminated supervision it lost jurisdiction to reinstate appellant's probation. This is so even if the court terminated appellant's probation due to a mistake by another agency- there has been no allegation made that appellant perpetrated a fraud upon the court. Order vacated. Vanhout v. State, CRC0303924CFAES, ( Fla. 6th Cir. App. Ct. November 3, 2005).

County Criminal Court: CRIMINAL PROCEDURE—Jurisdiction: the county court had jurisdiction of the subject matter [misdemeanor violation of probation] under statute-the defendant's objections go to the sufficiency of the affidavit and the summons-thus, it is an error in the exercise of a jurisdiction granted and not an illegal claim of jurisdiction-such errors must be corrected by the ordinary methods provided for review. Petition for Writ of Prohibition Denied. Houck v. State of Florida, No: 51-2004-CA-02812, (Fla. 6th Cir. App. Ct. Jan. 18, 2005).

County Criminal Court: CRIMINAL PROCEDURE – Jurisdiction - Pursuant to §910.05, if a crime is believed to have been Committed in either of two counties, venue is proper in either county. Judgment and sentence affirmed. Naveo v. State, No. CRC 03-83APANO (Fla. 6th Cir. App. Ct. Oct. 19, 2004).

Petitions for Writs of Mandamus, Prohibition, Quo Warranto, and/or Habeas Corpus: CRIMINAL PROCEDURE – Jurisdiction – Court retained jurisdiction to modify its order despite 18 month lapse where original order was never reduced to writing and made a final order. – Petition for Prohibition denied. Ellis v. Pinellas County Judges, No. 03-63 APANO (Fla. 6th Cir. App. Ct. Feb. 18, 2004).

The process governing disqualification is procedural.  As the attorney’s oral motion for recusal was not in compliance with the Florida Administrative Code, nor applicable case law, there was no error in the Hearing Officer’s denial of the recusal motion. Long v. State of Florida, Dept. of Highway Safety and Motor Vehicles, No. 00-2574-CI-88A (Fla. 6th Cir. Ct. October 19, 2000).

Trial court was without jurisdiction to consider an appeal where the only issue raised by the appellant was the ineffective assistance of counsel because that issue may not be properly raised for the first time on appeal. Bedard v. State, No. No. CRC 99-11783 CFANO (Fla. 6th Cir. Ct. July 25, 2000).

The county court has jurisdiction to hear alleged violations of Florida Statute 386.208 (Florida Clean Indoor Air Act) by juveniles. State v. Ramsberger, No. CRC 96-1245 CFANO (Fla. 6th Cir. Ct. August 21, 1996).

Jurors

County Criminal Court:  CRIMINAL PROCEDURE—Jurors and Jury Instructions.  The record demonstrates no reasonable likelihood that the jury instructions challenged on appeal improperly shifted the burden of proof to the Appellant for any element of the offense charged.  We find no error with the trial court’s instructing the jury that results of Appellant’s breath test, administered a reasonable time after Appellant was driving the vehicle, constituted prima facie evidence that Appellant had the same breath-alcohol content at the time of operation of the vehicle.  Affirmed.  Richard James Welch v. State of Florida, No. 13-CF-1413-WS (Fla. 6th Cir. App. Ct. September 30, 2014).

County Criminal Court: CRIMINAL PROCEDURE – Jurors and jury instructions – Trial court erred in refusing to give requested jury instruction on defense of necessity, when trial testimony provided at least some evidence relevant to each element of defense of necessity.  Judgment and sentence reversed; remanded for new trial.  Giles v. State, No. 12-00024APANO (Fla. 6th Cir. App. Ct. October 25, 2012).

County Criminal Court: CRIMINAL PROCEDURE – Jurors – Trial court did not abuse its discretion in denying motion for an additional peremptory challenge during voir dire.  Judgment and sentence affirmed. Ashlie Coi Milano v. State of Florida, No. CRC-10-07644-CFAWS (Fla. 6th Cir. App. Ct. February 3, 2012).

County Criminal Court: CRIMINAL PROCEDURE – Jurors – Trial court did not abuse its discretion in denying a cause challenge to prospective juror when all information indicated that prospective juror was able to be impartial - Judgment and sentence affirmed.  Foster v. State of Florida, No. CRC09-00055APANO (Fla. 6th Cir. App. Ct. July 9, 2010).

County Criminal Court: CRIMINAL PROCEDURE – Jurors and jury instructions – Under the facts and circumstances of case where Defendant was charged with disorderly conduct, it was reversible error not to provide requested special jury instruction regarding protected speech when Defendant’s theory of the case is that his speech was constitutionally protected. Jeremiah Gerard Carmody v. State, No. 08-00035APANO (Fla. 6th Cir.App.Ct. December 2, 2009).

County Criminal Court:  CRIMINAL LAW – Field Sobriety Test -&- CRIMINAL PROCEDURE – Jurors.  In a case involving a charge of DUI, the horizontal gaze nystagmus (HGN) test results alone, in the absence of a chemical analysis of blood, breath, or urine, are inadmissible to trigger the presumption provided by Florida Statute § 316.1934, and may not be used to establish a blood alcohol content (BAC) of 0.08 percent or more.  However, HGN test results are admissible independent of chemical tests, they are one piece of evidence that the jury may consider in determining whether the defendant was impaired under Florida Statute § 316.193(1)(a).   HGN test results are admissible in evidence once a proper foundation has been laid that an officer who was properly trained and qualified to administer an HGN test correctly administered the test. The officer does not have to be certified as a Drug Recognition Evaluator.
In jury selection, to the extent hypothetical questions involve the facts of the case they are not allowed.  However, the law is otherwise where the hypothetical does not include the facts of the case.  A hypothetical question making a correct reference to the law of the case to aid in determining the qualifications or acceptability of a prospective juror may be permitted by the trial judge in the exercise of sound judicial discretion.  Judgment and sentence affirmed.  Charles Edward Engelman v. State, No. CRC 08-00051 APANO (Fla. 6th Cir.App.Ct. June 3, 2009).

County Criminal Court:  CRIMINAL PROCEDURE --- Jurors and Jury Instructions --- Trial court did not abuse discretion in giving particular jury instructions and declining to give proposed instructions, as reasonably a jury would not have been misled by the given instructions.  Katrina T. Conner v. State, No. CRC 07-56 APANO (Fla. 6th Cir.App.Ct. June 12, 2008). 

County Criminal Court: Criminal Procedure --- Jurors ---Trial court should have stricken prospective juror for cause where juror indicated he would require the defendant to put on some evidence of innocence. Judgment and sentence reversed. Lee v. State, No. CRC 07-62 APANO (Fla. 6th Cir.App.Ct. May 30, 2008).

County Criminal Court: CRIMINAL PROCEDURE – Jurors – Trial court’s questioning of juror who appeared, during polling, to dispute verdict, was done to ascertain whether or not juror disagreed with verdict and was, therefore, not improper or a violation of Fla. R. Crim.P. 3.450. Judgment and sentence affirmed. Bortolini v. State, No. CRC 04-12 APANO, ( Fla. 6 th Cir.App.Ct. April 15, 2005).

Trial judge properly did not grant rehearing to strike potential jurors for cause merely because they agreed with the public defender that there are at least two sides to a story and if they did not hear both sides of the story it would be difficult to be fair. Mendoza v. State, No. CRC 94-6245 CFANO (Fla. 6th Cir. Ct. April 13, 1995).

Lack of Notice

County Criminal Court: CRIMINAL PROCEDURE – Lack of Notice – Trial court erred in conducting hearing on motion to suppress when Appellant did not receive notice of the hearing and was not present, even though Appellant’s counsel indicated readiness to proceed with hearing.  Fla. R. Crim. P. 3.180(a)(3) required that Appellant be present or submit a written waiver of his presence; noncompliance with rule resulted in error sufficient to require reversal.  Order denying motion to suppress reversed; case remanded to trial court for further proceedings.  Greenfield v. State, No. CRC10-00039APANO (Fla. 6th Cir. App. Ct. August 1, 2011).

County Criminal Court: CRIMINAL PROCEDURE – lack of notice.  Where there was no evidence that defendant/appellant received notice that a temporary injunction was made permanent, a motion for judgment of acquittal should have been granted for a charge of violation of the permanent injunction.  Judgment and sentence reversed.  Lawrence A. Kelley v. State, No. 08-00029APANO (Fla. 6th Cir.App.Ct. September 3, 2009).

Mistrial

County Criminal Court: CRIMINAL PROCEDURE – Mistrial – Trial court did not err in denying motion for mistrial.  While prosecutor’s comment during closing argument at trial resulted in improper burden shifting, it was not sufficient to require new trial.  Judgment and sentence affirmed, with dissenting opinion.  Caton v. State, No. 12-00056APANO (Fla. 6th Cir. App. Ct. November 18, 2013).

County Criminal Court: CRIMINAL PROCEDURE – Mistrial – Trial court did not err in denying motion for mistrial; such denial is reviewed under abuse of discretion standard.  At trial, Appellant objected to Prosecutor’s comment during closing argument and moved for mistrial.  As trial court recognized the error, sustained Appellant’s objection, and gave jury a curative instruction, it did not abuse its discretion in denying Appellant’s motion for mistrial.  Judgment and conviction affirmed.  Darling v. State, No. 11-00024APANO (Fla. 6th Cir. App. Ct. January 30, 2012).

County Criminal Court: CRIMINAL PROCEDURE – Mistrial – non-successor judge – due process.  A second judge who received a jury verdict for the first judge, who had left to fulfill a teaching commitment after sending the jury to deliberate, was not a successor judge.  It was improper for the second judge to rule on a motion for mistrial when there was no suggestion in the record that the first judge was unable to perform his responsibility to rule on the motion that he had taken under advisement, and the second judge did not certify that she had become familiar with the case.  Error that is not preserved by a contemporaneous objection may be raised on appeal only if the error is fundamental error, or plain error—that is, so obvious and substantial that failure to correct the error would infringe a party’s due process rights and damage the integrity of the judicial process.  It was a denial of due process and fundamental error for a non-successor judge to rule sua sponte on a pending motion for mistrial and not give the State Attorney a meaningful opportunity to be heard.  Order granting the motion for mistrial reversed, case remanded to the trial judge for further proceedings.  State v. Sean Michael McMullen, No. 09-00015APANO (Fla. 6th Cir.App.Ct. November 4, 2009).

Court properly denied motion for mistrial where defense counsel, on cross-examination, repeatedly asked victim about contents of a conversation previously held between defense counsel and victim, thereby inviting error. By repeatedly asking and trying to pinpoint exactly what was said during the previous conversation, defense counsel could have anticipated that the victim would respond by repeating exactly what she had said during that previous conversation. Smith v. State, No. CRC 99-20781 CFANO (Fla. 6th Cir. Ct. October 5, 2000).

Pleas

County Criminal Court: CRIMINAL PROCEDURE – Pleas – Appellant’s written waiver alone did not sufficiently prove that Appellant knowingly and voluntarily waived her right to counsel.  Reversed and remanded.  Kathrine D. Tolbert v. State, No. CRC1208419CFAES (Fla. 6th Cir. App. Ct. August 19, 2013). 

County Criminal Court: CRIMINAL PROCEDURE – Pleas – Trial court did not abuse its discretion in denying motion to withdraw plea where no evidence was presented to establish an involuntary plea or a manifest injustice requiring correction.  Judgment and sentence of the trial court affirmed.  Riedel v. State, CRC11-00036APANO (Fla. 6th Cir. App. Ct. January 3, 2012).

County Criminal Court: CRIMINAL PROCEDURE – Pleas – Plea colloquy was inadequate when it was not clear from the colloquy whether Defendant knowingly and voluntarily waived right to counsel – Judgment and sentence reversed and remanded for action.  Charles F. Johnson v. State, No. 07-00027APANO (Fla. 6th Cir. App. Ct. December 2, 2009).

County Criminal Court: CRIMINAL PROCEDURE – Pleas- Motion to withdraw plea was properly denied where trial court did not have any evidence on which to base a withdrawal. Even if appellant had presented evidence in support of the motion to withdraw, she failed to demonstrate a manifest injustice requiring correction-the possibility of a felony violation of probation based on a plea in a misdemeanor case is a collateral consequence of that plea.  Order of the trial court affirmed. Light v. State No. CRC 08-1636CFAES  (Fla. 6th Cir. App. Ct. April 22, 2009).

County Criminal Court:  CRIMINAL PROCEDURE – Pleas –Trial court erred in denying motion to withdraw plea, where the defendant, at the hearing, affirmatively stated an ineffectiveness of counsel claim and specifically alleged that he was misled by counsel; court was required to conduct Nelson inquiry. Order denying motion to withdraw plea is vacated and the case remanded. Figueroa v. State, No. CRC 07-06350CFAES (Fla. 6th Cir. App. Ct. December 4, 2008).

County Criminal Court : CRIMINAL PROCEDURE ---- Pleas --- Defendant agreed with State that order granting motion to set aside plea should be set aside. Order granting defendant’s motion to withdraw plea is reversed. State v. Hoyt, No. CRC 06-83 APANO, ( Fla. 6th Cir.App.Ct. May 27, 2008).

County Criminal Court:  CRIMINAL PROCEDURE – Pleas –Defendant’s attempt to withdraw his plea was untimely under Florida Rule of Criminal Procedure 3.170(l), and failed to comply with the procedural requirements of 3.850. Order granting motion to withdraw plea is reversed without prejudice to filing a proper 3.850 motion. State v. Turner, No. CRC 07-10 APANO (Fla. 6th Cir. App. Ct. October 30, 2007).

County Criminal Court: CRIMINAL PROCEDURE – Pleas –election under Florida Statute 318.14(10), must be made prior to a court appearance. Order affirmed. Worley v. State, 512006CA2459WS (Fla. 6th Cir. App. Ct. October 6, 2006).

County Criminal Court: CRIMINAL PROCEDURE – Pleas – Defendant conditioned his misdemeanor plea on belief that it would not affect the presentation of his companion felony case. Because of subsequent events in his felony case, the plea in the misdemeanor case might adversely affect the defendant’s position in his felony case. Therefore, there was no abuse of discretion in allowing the defendant to withdraw his plea in the misdemeanor case. – Order granting motion to withdraw plea affirmed. State v. Nelson, No. CRC 04-11 APANO (Fla. 6th Cir. App. Ct. Oct. 19, 2004).

County Criminal Court: CRIMINAL PROCEDURE – Pleas – Non-citizen defendant should have been allowed to withdraw guilty plea because he was not adequately informed by either counsel or trial court that his plea might result in deportation. Decision of trial court reversed. Ziad v. State, No. 03-32 APANO (Fla. 6th Cir.App.Ct. May 12, 2004).

County Criminal Court: CRIMINAL PROCEDURE – Pleas – Although the defendant was never advised during plea colloquy that his plea to a misdemeanor charge would violate his felony probation, testimony during the evidentiary hearing revealed that defendant was specifically told of the consequences by his felony probation officer and the trial judge during prior proceedings. – Therefore, defendant’s motion to withdraw his plea was properly denied. – Order affirmed. Gamble v. State, No. 03-19 (Fla. 6th Cir. App. Ct. Feb. 23, 2004).

County Criminal Court: CRIMINAL PROCEDURE – Pleas- Trial Court properly denied defendant’s motion to withdraw plea. .  Defendant failed to show clear prejudice or manifest injustice as required by Florida Rule of Criminal Procedure 3.850.  Fennell v. State, No. 02-83 (Fla. 6th Cir. App. Ct. Nov. 14, 2002).

County Criminal Court: CRIMINAL PROCEDURE – Pleas – Defendant failed to allege or preserve any fundamental error.  Trial Court properly denied Defendant’s motion to withdraw plea.  Judgment affirmed.  Mason v. State, No. 02-81APANO (Fla. 6th Cir. App. Ct. Nov. 13, 2002).

If a plea is legal and the defendant fails to demonstrate manifest injustice would occur if he were not allowed to withdraw the plea, then the trial court should not allow the defendant to withdraw the plea. State v. Franzone, No. CRC 95-93 CFANO (Fla. 6th Cir. Ct. May 19, 1995).

Procedure for withdrawing plea after sentencing is to file a motion to vacate pursuant to Florida Rule of Criminal Procedure 3.850. Defendants must comply with the requirements of the rule and show clear prejudice or manifest injustice in the acceptance of the plea. State v. Collins, No. CRC 94-17502 CFANO (Fla. 6th Cir. Ct. July 17, 1995).

Post Conviction Relief

County Criminal Court: CRIMINAL PROCEDURE – Post Conviction Relief – County Criminal Court: CRIMINAL PROCEDURE – Trial court did not err in denying Appellant’s 3.850 as untimely, successive, and meritless. Appellant’s 1996 plea of no-contest to DUI of prescription medicine does not result in a manifest injustice – Order denying postconviction relief is affirmed and Appellant directed to show cause why the court should not impose sanctions limiting his right to appear pro se based on his incessant filing of meritless pleadings.  Broom v. State, CRC11-00066APANO (Fla. 6th Cir. App. Ct. December 19, 2011).

County Criminal Court:  CRIMINAL PROCEDURE – Post Conviction Relief – Trial court erred in modifying judgment of guilt to adjudication withheld when modification occurred more than 60 days after judgment and sentence entered.  Original judgment and sentence was legal and trial court was without jurisdiction to modify the judgment more than 60 days after the judgment and sentence was imposed.  Order of trial court modifying sentence reversed; original sentence reinstated.  State v. Keller, No. 11-00009APANO (Fla. 6th Cir. App. Ct. October 10, 2011).

County Criminal Court: CRIMINAL PROCEDURE – Postconviction relief.  Summary denial of motion for postconviction relief under Fla. R. Crim. P. 3.850 was improper where the trial court neither stated its rationale in its decision nor attached specific parts of the record to refute each claim.  Order denying postconviction relief reversed; case remanded for evidentiary hearing.  Michael P. Grizzell v. State, No. 09-00022APANO (Fla. 6th Cir.App.Ct. November 5, 2009).

County Criminal Court: CRIMINAL PROCEDURE – Post conviction Relief –where the appellant/defendant had asserted an ineffective assistance of counsel, and specifically alleges that he was misled, the trial court should conduct a Nelson inquiry to determine if there exists a basis for appellant/defendant’s ineffective assistance of counsel claim.  Order denying defendant’s motion to withdraw plea reversed. Figueroa v. State,  No. CRC 07-06350CFAES ( Fla. 6th Cir. App. Ct. December 4, 2008).

County Criminal Court: CRIMINAL PROCEDURE  --- Post –Conviction Relief --- Claim that defendant would not have entered plea if he knew, contrary to his attorney’s assertions, that he could not get his stalking conviction expunged is not grounds for withdrawing plea pursuant to Phillips v. State, 960 So.2d 29 (Fla. 4th DCA 2007). Order denying defendant’s motion to withdraw plea affirmed. Lang v. State, No. CRC 07-39 APANO ( Fla. 6th Cir. App. Ct. April 18, 2008).

County Criminal Court: CRIMINAL PROCEDURE – Post –conviction Relief – Defendant’s motion to withdraw his plea was untimely when he entered his plea in 2002, but did not bring his motion for post-conviction relief until 2006. Moreover, the use of uncounseled pleas to declare defendants habitual traffic offenders is permitted. State v. King, No. CRC 07-15 APANO (Fla. 6th Cir. App. Ct. Feb. 11, 2008).

County Criminal CourtCRIMINAL PROCEDURE – Post Conviction Relief.  Alleged failure of defense counsel to “inform” the State about the future legal effect of five misdemeanor dispositions did not amount to ineffective assistance of counsel.  Appellant’s designation as a “habitual traffic offender” was a DHSMV matter.  Appellant was not entitled to relief by a constitutional challenge not raised in the postconviction motion before the trial court.  Order denying postconviction relief is affirmed.  Cobb v. State, No. CRC 07-40 APANO, (Fla. 6th Cir.App.Ct. Jan. 23, 2008).

County Criminal Court: CRIMINAL PROCEDURE – Post conviction Relief – Deportation proceedings do not need to be imminent before a 3.850 motion seeking to withdraw a plea may be heard; sufficient if deportation proceedings might be instituted because of plea. Order denying 3.850 motion reversed. Vanlinder v. State, No. CRC 05-18 APANO, (Fla. 6th Cir. App. Ct. March 5, 2007).

County Criminal Court: CRIMINAL PROCEDURE – Post Conviction Relief. Defendant was not entitled to withdraw his plea because collateral consequences of a plea, such as a subsequent change in the law precluding defendant from obtaining a driver’s license, have no bearing on the voluntariness of the plea. Order denying relief affirmed. Taylor v. State, No. CRC 05-71 APANO, (Fla. 6th Cir.App.Ct. Jan. 10, 2006).

County Criminal Court: CRIMINAL PROCEDURE – Post Conviction Relief. Petition for habeas corpus denied because defendant had to raise post-conviction relief challenge via a 3.850 motion filed in the trial court. Petition denied. Broom v. State, No. CRC 05-104 APANO, (Fla. 6th Cir.App.Ct. Jan. 4, 2006).

County Criminal Court: CRIMINAL PROCEDURE – Post Conviction Relief – Defendant failed to demonstrate error in the case below. Once an evidentiary hearing is granted, it is the defendant’s obligation to prove his allegations. – Order denying motion for post conviction relief is affirmed. Duff v. State, No. CRC 03-85 APANO (Fla. 6th Cir. App. Ct. June 21, 2004).

County Criminal Court:  CRIMINAL PROCEDURE – Post Conviction Relief – 3.850 motion for post-conviction relief was facially sufficient - error for trial court to deny motion without hearing or without attaching those portions of the files and records that conclusively show defendant is entitled to no relief -- Order reversed.  Hall v. State, No. 03-00088 APANO (Fla. 6th Cir. App. Ct. June 16, 2004).

County Criminal Court: CRIMINAL PROCEDURE – Post Conviction Relief – appellate court granted public defender’s motion to withdraw upon proper filing of an Anders brief – defendant’s failure to request a curative instruction or move for a mistrial after the court apparently sustained defendant’s objection, precluded a new trial – in conducting Anders review, court can find no other errors apparent on the face of the record – Order affirmed.  Harvey v. State, No. CRC 02-20523 APANO (Fla. 6th Cir. App. Ct. April 20, 2004).

County Criminal Court: CRIMINAL PROCEDURE – Post Conviction Relief – Ineffective assistance of counsel not shown where the defendant failed to demonstrate his attorney’s acts or omissions constituted deficient performance. – Judgment affirmed. Walsh v. State, No. 03-74 APANO (Fla. 6th Cir. App. Ct. Feb. 18, 2004).

County Criminal Court: CRIMINAL PROCEDURE - Post-Conviction Relief – Issues raised in motion for post-conviction relief could have been raised on appeal; therefore, the issues are procedurally barred. – Order affirmed. Williams v. State, No. 03-16 APANO (Fla. 6th Cir. App. Ct. Feb. 4, 2004).

County Criminal Court:  CRIMINAL PROCEDURE – Post Conviction Relief – rule 3.850 – trial court did not err in summarily denying motion without conducting evidentiary hearing – motion raised claim of newly discovered evidence in that officer who administered field sobriety tests subsequently accused fellow officers of rape – trial court found newly discovered evidence to be “obviously immaterial” to facts of case – no evidentiary hearing required in this context – Order affirmed.  Rivas v. State, No. 02-21300 (Fla. 6th Cir. App. Ct. April 28, 2003).

County Criminal Court: CRIMINAL PROCEDURE – Post Conviction Relief – Ineffective Assistance of Counsel – Ineffective assistance of counsel not shown where defendant failed to show that counsel’s performance was so deficient as to deprive the defendant of counsel and that the deficiencies prejudiced the defense.  Order affirmed.  Barrows v. State, No. 01-94 (Fla. 6th Cir App. Ct. Dec. 26, 2002).

County Criminal Court: CRIMINAL PROCEDURE – Postconviction Relief – Rule 3.850- Trial court did not err in summarily denying motion without conducting evidentiary hearing-issues raised are could have been raised on appeal; issues procedurally barred.  Mount v. State No. 02-87 (Fla. 6th Cir. App. Ct. Dec. 5, 2002).

County Criminal Court: CRIMINAL PROCEDURE – Postconviction relief – Rule 3.850 – Trial court did not err in summarily denying motion without conducting evidentiary hearing- defendant must show trial court did not provide advise regarding possible immigration consequences and deportation and the resultant prejudice, defendant failed to show prejudice – defendant’s claim that as he was not represented by counsel he was unaware of viable defenses to the charged offense is legally insufficient and properly denied without an evidentiary hearing.  Creary v. State No. 02-88 (Fla. 6th Cir. App. Ct. Dec. 5, 2002).

Prosecutorial Comment

County Criminal CourtCRIMINAL PROCEDURE—Prosecutorial Comment.  Although it appears the State did make improper prosecutor comments in this case, the comments were not contemporaneously objected to, and do not rise to the level of fundamental error.  Judgment and sentence affirmed.  Kenneth G. Peters v. State, No. 12-CF-8109-WS (Fla. 6th Cir. App. Ct. January 13, 2014).

County Criminal Court: CRIMINAL PROCEDURE – Prosecutorial comment – Prosecutor’s isolated and incomplete comment attempting to bolster credibility of witness was harmless error and did not affect fairness of trial, when evidence supported the conviction.  Judgment and sentence affirmed.  Arango v. State, No. 12-00032APANO (Fla. 6th Cir. App. Ct. March 6, 2013).

County Criminal Court: CRIMINAL PROCEDURE – Prosecutorial comment – The trial court did not abuse its discretion in denying Appellant’s motion for mistrial following prosecutorial comments.  Judgment and sentences affirmed. Lombardi v. State, No. CRC 06-67 APANO, (Fla. 6th Cir.App.Ct. December 2, 2011).

County Criminal Court: CRIMINAL PROCEDURE – Prosecutorial comment – Fair reply comments – Standard of review.  In closing argument before a jury, defense counsel and prosecution expressions of personal opinion as to the guilt or innocence of the defendant, the credibility of a witness, or the facts in issue, are improper.  Arguments not based on facts in evidence or on reasonable inferences drawn from the evidence are improper.  The prosecution should not make any argument that suggests that police officers should be believed simply because they are law enforcement officers or that they would not jeopardize their careers by lying in the case.  If there are improper closing arguments by one counsel, the opposing counsel is permitted a fair reply to those arguments.  Under U.S. v. Young, 470 U.S. 1, 105 S.Ct. 1038 (1985), responsive remarks that were “invited,” and did no more than respond substantially in order to “right the scale,” did not warrant reversing a conviction.  A trial judge's rulings on objections made in closing argument are reviewed under the abuse of discretion standard.  Trial court’s judgment and sentence affirmed.  Mark Wayne Nettles v.  State, No. CRC 08-00070APANO (Fla. 6th Cir. App. Ct. May 1, 2009).

County Criminal Court: CRIMINAL PROCEDURE --- Prosecutorial comment --- Prosecutor’s comments did not lower the burden of proof required to convict the defendant or interject personal opinion that defendant lied to his expert witness. Judgment and sentence affirmed. Daniels v. State, No. CRC 06-67 APANO, ( Fla. 6th Cir.App.Ct. May 27, 2008).

County Criminal Court: CRIMINAL PROCEDURE – Prosecutorial Comment –In a loitering and prowling prosecution, the State’s reference to the location of the alleged offense as a “high crime area” was not error because it was relevant to prove a material fact, and was not unduly prejudicial to the defendant.  Judgment and sentence affirmed. Hart v. State, No. CRC 06-68 APANO, (Fla. 6th Cir. App. Ct. October 30, 2007).

County Criminal Court: CRIMINAL PROCEDURE --- Prosecutorial comment --- Defendant deprived of a fair trial when the State placed the burden on the defendant to tell the jury why he did not submit to a breath test and show everyone he was not impaired. Judgment and sentence reversed. House v. State, No. CRC 05-107 APANO, ( Fla. 6th Cir.App. Ct. March 6, 2007).

County Criminal Court: CRIMINAL PROCEDURE – Prosecutorial comment - Not fundamental error for the State to ask the defendant why she did not bring a particular witness to testify. Judgment and sentence affirmed. Circle v. State,  No. CRC 04-65 APANO, (Fla. 6th Cir. App.Ct. January 10, 2007).

County Criminal Court: CRIMINAL PROCEDURE – Prosecutorial comment – State improperly depicted the defendant as a wife beater, even though there was no evidence, or even an allegation, that the defendant ever struck his wife. Judgment and sentence reversed. Russell v. State, No. CRC 03-8 APANO, (Fla. 6th Cir.App.Ct. April 18, 2005).

County Criminal Court: CRIMINAL PROCEDURE – Prosecutorial Comment – Mistrial – The trial judge and State’s comments combined to deprive the defendant of a fair trial. – Judgment and sentence reversed. Lee v. State, No. CRC 03-57 APANO (Fla. 6th Cir. App. Ct. Sept. 29, 2004).

The order granting mistrial after a jury had returned a guilty verdict was error because the prosecutor's comment "could you please mark that" directed to the court reporter following a defense expert's answer was not of such magnitude a new trial was required. State v. Svenson, No. CRC 95-4696 CFANO (Fla. 6th Cir. Ct. Feb. 13, 1996).

Public Defender

It is error to deny the defendant a public defender, assure her she would not be facing jail time if convicted, and then impose a jail sentence. Fraioli v. State, No. CRC 93-8433 CFANO (Fla. 6th Cir. Ct. Feb. 2, 1995).

If a defendant is found guilty of a criminal act and has received the assistance of the public defender, the court may assess attorney's fees against the defendant -- including those incurred on appeal. Before the imposition of fees, however, the defendant must be given notice and an opportunity to contest the amount of the fees. Amons v. State, No. CRC 94-9334 CFANO (Fla. 6th Cir. Ct. March 3, 1995).

The imposition of public defender liens does not violate the equal protection clause and trial courts may impose them sua sponte. Nute v. State, No. CRC 94-6243 CFANO (Fla. 6th Cir. Ct. March 3, 1995).

Restitution

County Criminal Court: CRIMINAL PROCEDURE – Restitution – Mere speculation or opinion as to the amount of a loss is insufficient to sustain a restitution order-Judgment affirmed. State v. Ploof, No. CRC08-3960CFAES,  (Fla. 6th Cir.App.Ct. April 22, 2009).

County Criminal Court: CRIMINAL PROCEDURE – Restitution – Restitution ordered as part of the defendant’s sentence for unlicensed contracting was proper where the restitution was awarded to compensate the victim for faulty construction work. Sentence affirmed. Sieja v. State, No. CRC 04-6 APANO, (Fla. 6th Cir.App.Ct. May 11, 2005).

An examination of language used in a Judgment of Guilt and Placing Defendant on Probation indicated that restitution was ordered at sentencing, with only the amount of such restitution left to be determined later.  Therefore, a subsequently entered order which merely set forth the amount of restitution and to whom it is owed was properly upheld. The fact that the court specifically mentioned the sixty-day statutory requirement within its judgment did not thereafter invalidate its order imposing restitution where the court also specifically retained jurisdiction of the matter to set the amount of restitution at a later date.  Peterson v. State, No. CRC 00-03670 CFANO (Fla. 6th Cir. Ct. October 25, 2000).

Trial court did not follow the requirements of Florida Statute 775.089 when it delegated responsibility for determining the amount of restitution to civil litigation. State v. Duffy, No. CRC 94-9431 CFANO (Fla. 6th Cir. Ct. May 12, 1995).

Speedy Trial

County Criminal Court: CRIMINAL PROCEDURE – Speedy Trial – Trial court properly denied Appellant’s motion for discharge on speedy trial grounds.  Trial court was prepared to timely commence a jury trial in accordance with the speedy trial rule when Appellant entered a change of plea; additionally, even if the speedy trial time had expired, which it had not, counsel’s actions amounted to an agreement for a date to start the trial.  Order denying motion for discharge affirmed.  Marot v. State, No. 12-00004APANO (Fla. 6th Cir. App. Ct. December 19, 2012).

County Criminal Court: CRIMINAL PROCEDURE – Speedy Trial – Defense motion to continue trial did not waive speedy trial because motion was brought as a result of State’s delay in providing discovery.  Reversed and remanded for discharge.  Wetherell v. State, CRC08-00039APANO (Fla. 6th Cir. App. Ct. May 25, 2010).

County Criminal Court: CRIMINAL PROCEDURE – Speedy Trial – Defendant entitled to discharge when trial scheduled outside of recapture period and proper steps taken pursuant to Rule 3.191.  Denial of motion for discharge reversed. Pateiro v. State, No. CRC0706934CFAWS (Fla. 6th Cir.App.Ct. March 8, 2010).

County Criminal Court: CRIMINAL PROCEDURE– Speedy Trial – .a misdemeanor charge cannot be revived by consolidating or joining it with a felony charge after the time for speedy trial runs. Decision of trial court affirmed. State v. Brady, No. CRC064539CFAWS (Fla. 6th Cir.App.Ct. July 31, 2007).

County Criminal Court : CRIMINAL PROCEDURE – Speedy Trial – Amending charge from felony to misdemeanor was not abandoning prosecution for purposes of speedy trial. Petition for Prohibition denied. Peasley v. State, No. CRC 06-6 APANO, ( Fla. 6th Cir.App.Ct. July 21, 2006).

County Criminal Court: CRIMINAL PROCEDURE – Speedy Trial – When more than one charge arises from same criminal episode, a waiver of speedy trial for one of the charges is considered a waiver for any other charges arising out of the same criminal episode. State v. Brusa, No. CRC 04-10 APANO, (Fla. 6th Cir.App.Ct. May 24, 2005).

County Criminal Court: CRIMINAL PROCEDURE – Speedy Trial – Defendant’s request to continue initial hearing to get more time to learn facts about possible waiver of speedy trial extended or tolled recapture period until initial hearing completed. Order of discharge reversed. State v. Barnes, No. CRC 04-49 APANO, (Fla. 6th Cir.App.Ct. May 20, 2005).

County Criminal Court: CRIMINAL PROCEDURE – speedy trial – while it is true that the trial court agreed with the state, finding that the closing of the courthouse on two separate occasions due to hurricanes is an exceptional circumstance that would extend speedy trial; such an extension was not sought prior to expiration of speedy trial as is required by Florida Rule of Criminal Procedure 3.191(i)- the only time the state moved for a continuance due to exceptional circumstances was six days after speedy trial had run. Petition for Writ of Prohibition granted. Taylor v. State, No: 51-2004-CA-2769WS (Fla. 6th Cir. App. Ct. December 21, 2004).

County Criminal Court:  CRIMINAL PROCEDURE – speedy trial – State entitled to 15-day recapture period –trial court did not err in denying defendant’s motion to dismiss –defendant had the ability to move for a speedy trial discharge within a short period of time after the expiration of the 90-day speedy trial period for a misdemeanor charge – State brought defendant to trial within 15 days from the notice of expiration -- Order affirmed.  Walker v. State, No. 03-00005 APANO (Fla. 6th Cir. App. Ct. Jan. 23, 2004). 

The public defender's conduct was akin to asking for a continuation; thus speedy trial was waived. Bughar v. Caddell, No. CRC 94-18388 CFANO (Fla. 6th Cir. Ct. April 12, 1996).

Waiver of Jury Trial

County Criminal Court:  CRIMINAL PROCEDURE – Waiver of Jury Trial – appellant entitled to jury trial pursuant to statute – appellant also entitled to jury trial as offense was punishable by more than six months incarceration – record on appeal devoid of written or oral waiver of appellant’s right to jury trial – attorney’s actions cannot constitute an implied waiver without affirmative on-the-record showing that appellant agreed with waiver – Reversed and remanded.  Wise v. State, No. 02-12832 (Fla. 6th Cir. App. Ct. April 28, 2003).


DISQUALIFICATION

Attorney

Common Law Petition for Writ of Certiorari, County Civil Court:  ATTORNEY DISQUALIFICATION  – appellate procedure – disqualification of counsel is a matter uniquely suited for review by certiorari – trial court departed from essential requirements of law by disqualifying attorney and his law firm without conducting an evidentiary hearing – Petition granted.  Reinke v. Progressive Express Insurance Company, No. 03-5068AP-88A (Fla. 6th Cir. App. Ct. Feb. 11, 2004).

Judge

Petition for Writ of Prohibition, County Court: DISQUALIFICATION - § 38.10, Florida Statutes and Florida Rule of Judicial Administration 2.330 – Prohibition is an appropriate remedy to review the denial of a motion to disqualify a trial judge. Standard for disqualification asks whether the alleged facts would cause movant to have an objectively well-founded fear that he will not receive a fair trial. A judge’s adverse rulings, the fact that a judge has previously heard the evidence, and allegations that a judge had formed fixed opinions of the defendant’s guilt are insufficient to mandate disqualification. Petition for Issuance of a Writ of Prohibition is denied. Davis v. State of Florida, No. 14-00025APANO (Fla. 6th Cir. App. Ct. April 30, 2014).

County Criminal Court: DISQUALIFICATION – judge – The trial court did not err in denying Appellant’s motion to disqualify, and Appellant did not preserve his prosecutorial comment challenge. Affirmed.  Masters v. State, No. CRC0902326CFAWS, (Fla. 6th Cir.App.Ct. January 10, 2011).

Petition for Writ of Prohibition, County Court: DISQUALIFICATION– judge –Given the fact that the no contact order was reinstated at the same time as the defendant refused to waive speedy trial, a reasonable defendant could infer that he was not going to receive a fair trial. Petition granted.   Clair v. State, No. 512007CA2195  (Fla. 6th Cir. App. Ct. July 11, 2007).

Petition for Writ of Prohibition, County Court: DISQUALIFICATION– judge – Petitioner’s motion to disqualify presiding judge is unsworn and not timely filed as required by the Florida Judicial Administrative Rules, Rule 2.160(c),(e) – the appellate court cannot issue a writ under facts of this case – Petition denied.  Smith v. Florida Infusion Services, No. 04-0036AP-88B ( Fla. 6th Cir. App. Ct. July 9, 2004).


DRIVER'S LICENSES

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSE—Petitioner was afforded sufficient due process in this case, and the order sustaining the driver’s license suspension is supported by competent, substantial evidence and did not constitute a departure from essential requirements of law.  The Petition for Writ of Certiorari is therefore denied.  Stacy Barze Hallman v. State of Florida, Dep’t of Highway Safety and Motor Vehicles, No. 14-CA-0041-ES (Fla. 6th Cir. App. Ct. September 30, 2014). 

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – hardship license – Hearing officer’s decision to deny Petitioner’s application for early reinstatement of her driving privilege was supported by competent substantial evidence when Petitioner unlawfully operated a motor vehicle while her license was suspended in December of 2012– Petition denied. Deak v. Dep’t of Highway Safety and Motor Vehicles, No. 14-000029AP-88B (Fla. 6th Cir. App. Ct. September 23, 2014).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Suspension—Section 322.2615 (2), Fla. Stat. (2013). Probable cause affidavit was properly completed when both the arresting and attesting officer signed the affidavit. Because law enforcement officers are authorized to administer oaths when engaged in the performance of official duties, the signature of a notary was not necessary. Petition denied. Swindle v. Dept. of Highway Safety and Motor Vehicles, No. 14-000015AP-88B (Fla. 6th Cir. App. Ct. July 25, 2014).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Suspension—Validity of traffic stop.  Content of video of traffic stop does not contradict statements in police officer's Arrest Report.  Officer need only have a founded suspicion of criminal activity to effectuate stop.  Hearing officer's decision that deputy had objectively reasonable basis for traffic stop for careless driving is supported by competent, substantial evidence.  Petition denied.  Vogel v. Dept. of Highway Safety and Motor Vehicles, No. 13-000052AP-88 (Fla. 6th Cir. App. Ct. May 27, 2014).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES—Due Process.  Petitioner was not afforded adequate due process when Respondent failed to provide Petitioner with the video-recording of Petitioner’s arrest for driving under the influence, when Petitioner requested the video-recording prior to the hearing, its existence was affirmatively denied prior to and at the hearing, and Petitioner then received a copy of the video-recording after the order sustaining the suspension was entered.  Petition granted.  Carl S. Christian v. State of Florida, Dep’t of Highway Safety and Motor Vehicles, No. 13-CA-5160-ES (Fla. 6th Cir. App. Ct. May 12, 2014).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Early Reinstatement—Suncoast Safety Council observed the essential requirements of law when it denied Petitioner's request for restricted reinstatement of revoked driving privileges pursuant to Section 322.271(5), Fla. Stat. (2013); Fla. Admin. Code Rule 15A-10.031.  Statute requires no drug or alcohol consumption for five years prior to application for reinstatement.  Medical records from Petitioner's doctor indicated that Petitioner consumed medication that was not prescribed for Petitioner during the five-year period prior to application.  Petition denied.  Zinaich v. Fla. Dept. of Highway Safety and Motor Vehicles, No. 13-000056AP-88A (Fla. 6th Cir. App. Ct. May 9, 2014).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Early Reinstatement— Department observed the essential requirements of law when it denied Petitioner's request for restricted reinstatement of revoked driving privileges pursuant to Section 322.271(2)(c), Fla. Stat. (2013); Fla. Admin. Code Rule 15A-1.019.  During twelve-month period prior to reinstatement, applicant must not consume drugs or alcohol.  Petitioner admitted consuming alcohol prior to hearing on application.  Petition denied.  Zareas v. Fla. Dept. of Highway Safety and Motor Vehicles, No. 12-000006AP-88A (Fla. 6th Cir. App. Ct. May 9, 2014).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Suspension—On the DUI Supplement Report for the indication of "odor of breath," the law enforcement officer marked "undetected."  In the Complaint/Arrest Affidavit, the officer marked "unknown" as to "Indication of Drug Influence" and "Indication of Alcohol Influence."  These notations did not eliminate the cause of Petitioner's intoxication as being alcohol consumption.   Competent, substantial evidence supports Hearing Officer's conclusion that, by a preponderance of the evidence, the officer had probable cause to believe Petitioner was under the influence of alcohol when officer asked Petitioner to take breath-alcohol test.  Petition denied.  Kaymen v. Fla. Dept. of Highway Safety and Motor Vehicles, No. 13-000054AP-88A (Fla. 6th Cir. App. Ct. April 24, 2014).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Due Process -- Suspension—Petitioner's due process rights not violated when arresting deputy who performed DUI investigation died prior to the formal review hearing pursuant to Section 322.2615, Fla. Stat. (2012).  At hearing Petitioner acknowledged that Deputy would not be able to comply with subpoena.  Case is factually distinguishable from Pfleger v. Florida Department of Highway Safety and Motor Vehicles, 18 Fla. L. Weekly Supp. 706a (Fla. 6th Cir. App. Ct. May 20, 2011); and Florida Department of Highway Safety and Motor Vehicles v. Robinson, 18 Fla. L. Weekly Supp. 1099b (Fla. 6th Cir. App. Ct. Sept. 1, 2011), pet. denied, 93 So. 3d 1090 (Fla. 2d DCA 2012).  Further, there is no confrontation right under Crawford v. Washington, 541 U.S. 36 (2004), because administrative license suspension action is not a criminal prosecution.  Petition denied.  Ihasz-Jentsch v. Fla. Dept. of Highway Safety and Motor Vehicles, No. 13-000046AP-88A (Fla. 6th Cir. App. Ct. April 16, 2014).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Suspension – Section 322.2615, Fla. Stat. (2013). After nearly being run over by Petitioner, police officer had a well-founded suspicion that the crime of reckless driving had been committed, thus giving the officer a sufficient basis to stop Petitioner. Petition denied. Marcantonio v.  Dept. of Highway Safety and Motor Vehicles, No. 13-0077AP-88B (Fla. 6th Cir. App. Ct. March 6, 2014).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Suspension – Even in the absence of a traffic violation, a legitimate concern for the safety of the motoring public can warrant a brief investigatory stop to determine whether a driver is ill, tired, or driving under the influence in situations less suspicious than that required for other types of criminal behavior. Petition denied. Walter v. Fla. Dept. of Highway Safety and Motor Vehicles, No. 13-000079AP-88B (Fla. 6th Cir. App. Ct. March 6, 2014).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES—Suspension—Petitioner's erratic driving warranted brief investigatory stop and established founded suspicion validating DUI stop.  Uncertified copy of Transcript of Driving Record received by Hearing Officer without objection sufficient evidence of prior refusal(s) to submit to breath–alcohol test supporting enhanced suspension.  For purposes of administrative license suspension, there is no right to attorney before submitting to breath-alcohol test.  No evidence Petitioner communicated confusion regarding the interplay of Implied Consent and Miranda rights in order to invoke "Confusion Doctrine."  Petition denied.  Vanek v. Dept. of Highway Safety and Motor Vehicles, No. 13-000040AP-88A (Fla. 6th Cir. App. Ct. January 13, 2014).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES –Suspension—Petitioner's due process rights not violated when police officer, who had been served with subpoena for final review hearing, failed to appear.  In correspondence requesting formal review hearing, Petitioner stated he "waive[d] any time requirements" and subsequently requested a continuance.  Case is factually distinguishable from Pfleger v. Florida Department of Highway Safety and Motor Vehicles, 18 Fla. L. Weekly Supp. 706a (Fla. 6th Cir. App. Ct. May 20, 2011), and Florida Department of Highway Safety and Motor Vehicles v. Robinson, 18 Fla. L. Weekly Supp. 1099b (Fla. 6th Cir. App. Ct. September 1, 2011), pet. denied, 93 So. 3d 1090 (Fla. 2d DCA 2012).  Petition denied.  Bragg v. Florida Department of Highway Safety and Motor Vehicles, No. 13-000022AP-88A (Fla. 6th Cir. App. Ct. December 11, 2013).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Suspension – Section 322.2615, Fla. Stat. (2013). An inspection report not submitted at the formal hearing by Petitioner or any other witness, but instead submitted by the hearing officer, was properly received and relied upon. Petitioner was afforded procedural due process. Petition denied. Mordini v. Dept. of Highway Safety and Motor Vehicles, No. 13-0031AP-88B (Fla. 6th Cir. App. Ct. November 21, 2013).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Due Process - Suspension—Fact that Petitioner requested continuance of first Formal Review Hearing due to her inability to subpoena arresting officer distinguishes this case from Robinson v. Florida Department of Highway Safety and Motor Vehicles, 93 So. 3d 1090 (Fla. 2d DCA 2012), review denied, 112 So. 3d 83 (Fla. 2013); and Pfleger v. Florida Department of Highway Safety and Motor Vehicles, 88 So. 3d 159 (Fla. 2d DCA 2011).  Petitioner failed to subpoena officer who stopped her vehicle for continued hearing.   No due process violation; evidence supports hearing officer's decision to deny motion to invalidate suspension; and competent, substantial evidence supports probable cause for arrest – Petition denied.  Ashley Tyson v. Fla. Dep’t of Highway Safety and Motor Vehicles, No. 12-000041AP-88A (Fla. 6th Cir. App. Ct. October 11, 2013).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Suspension – Section 322.2615, Fla. Stat. (2013). The failure of subpoenaed civilian witnesses to appear at the formal review hearing is not grounds to invalidate a license suspension.  Petitioner was accorded procedural due process - Petition denied. Hamalian v. Fla. Dep’t of Highway Safety and Motor Vehicles, No. 12-000059AP-88B (Fla. 6th Cir. App. Ct. October 4, 2013).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Suspension—Administrative order suspending license was supported by competent substantial evidence that a breath or urine test was impossible or impractical where the Petitioner was transported to the hospital for a head injury, and was not taken to jail until more than 3 hours after the investigating officer’s request - Petition denied.  Hale v. Dept. of Highway Safety and Motor Vehicles, No. 13-000045AP-88B (Fla. 6th Cir. App. Ct. October 4, 2013).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Suspension – In order to be a valid affidavit as required by §322.2615(2), Fla. Stat. (2011), an officer’s Incident Report must be properly sworn and subscribed to under oath.  An Incident Report where the attesting officer only attests to the signature of the officer that completed the Incident Report is not sufficient - Petition granted. Phelps v. Fla. Dep’t of Highway Safety and Motor Vehicles, No. 13-000039AP-88B (Fla. 6th Cir. App. Ct. September 10, 2013).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES–Suspension–No denial of due process when Petitioner was not denied the opportunity to consult with his attorney during administration of breath test. Administration of a breath test is not a critical stage of the proceedings to which a Sixth Amendment right to counsel attaches. – Petition denied. Platte v. Fla. Dep’t of Highway Safety and Motor Vehicles, No. 13-000019AP-88B (Fla. 6th Cir. App. Ct. August 9, 2013).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES—Suspension— Competent, substantial evidence supports conclusion that encounter between police officer and Petitioner was consensual and finding that there was no improper seizure of Petitioner.  Petition denied. Maxwell Miller v. Florida, Department of Highway Safety and Motor Vehicles, No. 12-000037AP-88A (Fla. 6th Cir. App. Ct. July 31, 2013).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – cancellation of Special Supervision Services Program (SSS Program) – Sworn arrest affidavit stating that there was an indication of alcohol influence by the petitioner was competent substantial evidence to support the hearing officer’s decision to re-impose Petitioner’s license revocation for violating the terms of the SSS program. Petition denied. Maher v. Fla. Dep’t of Highway Safety and Motor Vehicles, No. 12-000061AP-88B (Fla. 6th Cir. App. Ct. June 19, 2013).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES -- Suspension—The Petitioner in single-vehicle accident found in driver's seat of idling vehicle and did not respond coherently to questions posed by police officers.  Green, leafy substance burned in pipe located inside vehicle.  When Petitioner physically removed from vehicle by paramedics, open package of "Mr. Happy Potpourri" found in Petitioner's pocket.  DHSMV Hearing Officer's conclusion that police officers did not have probable cause to believe Petitioner was driving or in actual physical control of motor vehicle while under the influence of alcohol, chemical, or controlled substance was not supported by competent, substantial evidence.  Petition granted; Hearing Officer's Decision quashed; remanded to DHSMV to reinstate suspension of Petitioner's driving privileges.  City of Treasure Island v. Florida Department of Highway Safety and Motor Vehicles, No. 12-000016AP-88A (Fla. 6th Cir. App. Ct. June 11, 2013).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES—Suspension—Competent, substantial evidence supports the Hearing officer’s decision that deputy had objectively reasonable basis for traffic stop for DUI and supports the decision that Petitioner was under arrest when he refused to submit to the breath-alcohol test. Distinguishing State v. Gunn, 408 So. 2d 647 (Fla. 4th DCA 1981). Petition denied. Menikheim v. Fla. Dep’t of Highway Safety and Motor Vehicles, No. 12-000002AP-88A (Fla. 6th Cir. App. Ct. March 6, 2013).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES—Suspension—Petitioner failed to maintain a single lane in violation of section 316.089(1), Florida Statues (2012) – deputy observed on two occasions Petitioner squealing her tires when accelerating away from traffic lights.  One piece of documentary evidence conflicts with remainder of evidence on the timing of the request for the breath-alcohol test.  Competent, substantial evidence supports the Hearing officer’s decision that deputy had objectively reasonable basis for traffic stop for DUI and supports the decision that Petitioner was under arrest when she refused to submit to the breath-alcohol test. Petition denied. Lamm v. State of Florida, Department of Highway Safety and Motor Vehicles, No. 12-000033AP-88A (Fla. 6th Cir. App. Ct. Dec. 4, 2012

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Suspension—Florida Traffic Crash Report can be considered by hearing officer at license suspension hearing, but no statement was made by Petitioner concerning the accident.  See § 322.2615(2), Fla. Stat. (2008).  When there is conflicting evidence, Court is not to reweigh evidence.  Competent, substantial evidence supports hearing officer's determination that circumstances gave rise to reasonable suspicion to justify Petitioner's detention for DUI investigation – Petition denied.  Manella v. Fla. Dep’t of Highway Safety and Motor Vehicles, No. 09-000017AP-88A (Fla. 6th Cir. App. Ct. Aug. 29, 2012).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES - Suspension—Affidavit of True Copy and attached Offense Report have conflicting dates.  However, other sworn or verified evidence in record supports hearing officer's findings and Decision. This Court follows precedent of Department of Highway Safety and Motor Vehicles v. Cherry, 91 So. 3d 849 (Fla. 5th DCA 2011), holding low volume sample not a valid breath sample.  Failure to provide the required number of valid breath samples constitutes refusal to submit to breath-alcohol test.  See Fla. Admin. Code R. 11D-8.002(12).  Petition denied.  Galloway v. Fla. Dep’t of Highway Safety and Motor Vehicles, No. 12-000014AP-88A (Fla. 6th Cir. App. Ct. Aug. 29, 2012).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVERS LICENSES – Suspension—Hearing Officer’s finding that law enforcement’s stop of the petitioner was valid was supported by competent substantial evidence and there was no departure from the essential requirements of the law.  Hearing officer made specific ruling and written finding that stop of Petitioner's vehicle was legal.  Dicta in Department of Highway Safety and Motor Vehicles v. Escobio, 6 So. 3d 638 (Fla. 2d DCA 2009), not binding on this Court under the facts of this case where the Hearing Officer made a specific finding on the legality of a stop.  Petition for writ of certiorari denied.  Tsotsos v. Fla. Dep’t of Highway Safety and Motor Vehicles, No. 11-000061AP-88A (Fla. 6th Cir. App. Ct. July 24, 2012)

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Suspension – Petitioner’s procedural due process rights were violated when Officer’s failure to appear at a hearing after being served with a valid subpoena denied Petitioner an opportunity to have a hearing within 30 days. Petition granted. Barese v. Fla. Dep’t of Highway Safety and Motor Vehicles, No. 11-000048AP-88B (Fla. 6th Cir. App. Ct. June 27, 2012).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Suspension – Section 322.2615(7)(a), Fla. Stat. (2011).  For valid traffic stop only "founded suspicion" of criminal activity needed.  Petitioner stopped at red traffic light with police vehicle directly behind him.  Petitioner did not move vehicle for twenty-three seconds after traffic light changed to green despite fact that ten to twelve motorists in line behind Petitioner were honking horns and shouting at police officer to take action.  Competent, substantial evidence supported hearing officer's determination that the stop was valid – arrest & suspension of license upheld - Petition denied.  Peterfi v. Fla. Dep’t of Highway Safety and Motor Vehicles, No. 12-000010AP-88A (Fla. 6th Cir. App. Ct. June 14, 2012)

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Suspension – There was competent substantial evidence to support a finding of probable cause that a traffic infraction had occurred where the sworn offense report stated that Petitioner’s vehicle failed to maintain its lane, and this failure impacted another vehicle. By failing to object to the length of the suspension at the administrative hearing, Petitioner waived her right to raise the issue for the first time on appeal. Petition denied. Vitola v. Dep’t of Highway Safety and Motor Vehicles, No. 11-000040AP-88B (Fla. 6th Cir. App. Ct. April 13, 2012).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Suspension – Section 322.2615 (2), Fla. Stat. (2011). Sworn Incident Report was a statement of probable cause under oath. Time stamp on Incident Report indicated that Report had not yet been printed at the time the affiant swore its contents were true. The officer administering the oath to the affiant testified at the hearing. The hearing officer, as the trier of fact, was in the best position to evaluate the conflicting evidence. Competent, substantial evidence supported the officer’s determination that the Incident Report was properly sworn under oath – suspension of license upheld – Petition denied. McLeod v. Fla. Dep’t of Highway Safety and Motor Vehicles, No. 11000058AP-88B (Fla. 6th Cir. App. Ct. May 23, 2012).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Mor Vehicles: DRIVER’S LICENSES – Suspension - Unless the DHSMV hearing officer’s ruling is clearly erroneous, the appellate court is to defer to the hearing officer’s interpretation of Florida Administrative Code (FAC) 11D-8.004(2).  That code section requires that prior to the use of “any evidentiary breath test instrument returned from an authorized repair facility”, the inspection of the instrument by the Department of Law Enforcement.  Inspection by FDLE at the authorized repair facility without subsequent inspection again at the local police department is a reasonable interpretation of the FAC requirements.  The Decision was not clearly erroneous.  Petition for writ of certiorari denied.  Torrence v. Fla. Dep’t of Highway Safety and Motor Vehicles, No. 11-000027AP-88A (Fla. 6th Cir. App. Ct. May 14, 2012).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Suspension - Unless the DHSMV hearing officer’s ruling is clearly erroneous, the appellate court is to defer to the hearing officer’s interpretation of Florida Administrative Code (FAC) 11D-8.004(2).  That code section requires that prior to the use of “any evidentiary breath test instrument returned from an authorized repair facility”, the inspection of the instrument by the Department of Law Enforcement.  Inspection by FDLE at the authorized repair facility without subsequent inspection again at the local police department is a reasonable interpretation of the FAC requirements.  The Decision was not clearly erroneous.  Petition for writ of certiorari denied.  Torrence v. Fla. Dep’t of Highway Safety and Motor Vehicles, No. 11-000027AP-88A (Fla. 6th Cir. App. Ct. May 14, 2012).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Suspension – The police officer observed the Petitioner after his motorcycle was inoperable after being submerged in water.  Under unique facts of this case, DHSMV Hearing Officer's conclusion that police officer had probable cause to believe Petitioner was driving or in actual physical control of operable motor vehicle while intoxicated is not supported by competent, substantial evidence.  Petition granted; Hearing Officer's Decision quashed; remanded to DHSMV with instructions.  Brown v. Fla. Dep’t of Highway Safety and Motor Vehicles, No. 10-000053AP-88A (Fla. 6th Cir. App. Ct. May 14, 2012).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Suspension – On notification of delinquency in child support, suspension of driver license is a ministerial duty of DHSMV in accordance with § 322.058(1), Fla. Stat. (2011), and DHSMV is not required to make findings that petitioner was actually delinquent in child support payments.  Department provided due process when it notified the petitioner of the pending driver license suspension, the actions that could avoid the suspension, and provided for an opportunity to be heard on the legal basis for the suspension.  Petition denied.  Bradford v. Fla. Dep’t of Highway Safety and Motor Vehicles, No. 12-000006AP-88A (Fla. 6th Cir. App. Ct. April 25, 2012). 

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Suspension – The DHSMV properly suspended Petitioner’s driver’s license, as the stop of Petitioner was lawful.  Petition denied.  Riscile v. Florida Department of Highway Safety and Motor Vehicles, No. 12-AP-000002-WS (Fla. 6th Cir. App. Ct. April 23, 2012).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Revocation – Petitioner could have proceeded upon petition for writ of certiorari from the Order revoking his driver's license issued by the Department of Highway Safety and Motor Vehicles.  However, Petitioner requested further judicial review.  A hearing was conducted before the hearing officer and review proceeded in this appellate court upon the Order issued by the hearing officer.  Competent substantial evidence supported hearing officer's determination that Petitioner had three prior DUI convictions and appellate court not to reweigh the evidence.  Amended petition for writ of certiorari denied.  McArthur v. Fla. Dep’t of Highway Safety and Motor Vehicles, No. 10-000059AP-88A (Fla. 6th Cir. App. Ct. January 13, 2012).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Suspension – Record contains competent substantial evidence supporting Hearing Officer’s findings that arresting officer had probable cause to believe Petitioner was driving under the influence of alcohol and  that arresting officer properly advised Petitioner of his Miranda rights.  Accident report privilege no longer applies to administrative license proceedings.  §§ 316.066(4), 322.2615, Fla. Stat. (2011).  Petition denied.  Belanger v. Fla. Dep’t of Highway Safety and Motor Vehicles, No. 11-000044AP-88B (Fla. 6th Cir. App. Ct. January 6, 2012).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Suspension – Arresting officer’s failures to appear for formal review hearing were unexcused where arresting officer based his continuance requests upon no reason or a “schedule conflict” and the hearing officer made no finding of just cause. Because Fla. Admin. Code R. § 15A-6.015(2)(c) provides that no hearing shall be continued for a second failure to appeal, the second continuance was indisputably a departure from the essential requirements of law and denied Petitioner’s due process rights.  Petition granted.  Tsardoulias v. Department of Highway Safety and Motor Vehicles, No. 11-000032AP-88B (Fla. 6th Cir. App. Ct. November 22, 2011).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Suspension – Hearing officer must consider the lawfulness of a license suspension, including the appropriate length of suspension, to sustain it under Fla. Stat. § 322.2615(7). Record evidence was insufficient to establish a prior refusal that would warrant the enhanced suspension.  Hearing officer departed from the essential requirements of law by refusing to consider the length of the suspension, and the decision to sustain the suspension was not supported by competent substantial evidence.  Petition granted.  Kelsey v. Department of Highway Safety and Motor Vehicles, No. 11-000026AP-88B (Fla. 6th Cir. App. Ct. October 31, 2011).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Due Process – Suspension – In accordance with the holding in Pfleger v. DHSMV, 18 Fla. L. Weekly Supp. 706a (Fla. 2011), the Hearing Officer violated Petitioner's procedural due process rights.  Arresting officer’s failure to appear for hearing, despite valid subpoena, denied the Petitioner opportunity to confront and cross-examine officer at the formal hearing within thirty days.  Petition granted; Hearing Officer's Decision quashed; remanded to Department of Highway Safety and Motor Vehicles.  Robinson v. Florida Department of Highway Safety and Motor Vehicles, No. 11-000029AP-88A (Fla. 6th Cir. App. Ct. September 1, 2011).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Suspension – Reliable, competent, substantial evidence supported Hearing Officer's finding that Petitioner was under arrest at the time the request to submit to breath-alcohol test was made and that Petitioner was informed of the consequences of the refusal to submit to breath test.  Petition denied.  Szurant v. Florida Department of Highway Safety and Motor Vehicles, No. 11-000006AP-88A (Fla. 6th Cir. App. Ct. August 31, 2011).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Suspension – Whether Breath Test Operator holds a valid permit to perform breath test to determine blood-alcohol content is question of law, not of fact.  Hearing Officer interpretation of Fla. Admin. Code, Rule 11D-8.008(3) and calculations are erroneous.  Breath test results determined to be invalid and not supported by competent substantial evidence.  Petition granted; Hearing Officer's Decision quashed; remanded to Department of Highway Safety and Motor Vehicles.  Young v. Florida Department of Highway Safety and Motor Vehicles, No. 11-000008AP-88A (Fla. 6th Cir. App. Ct. August 24, 2011).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Suspension – Times on the citations indicating time of issuance did not create discrepancies in the record requiring the clarification of live testimony.  Documentary evidence was not in “hopeless conflict.”  Record provided competent substantial evidence to establish that the arrest occurred prior to the breath alcohol tests, i.e., that the breath tests were incidental to a lawful arrest.  Petition denied.  Rysdon v. Department of Highway Safety and Motor Vehicles, No. 11-000007AP-88B (Fla. 6th Cir. App. August 11, 2011).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES - Due Process - Order Granting Petition for Writ of Certiorari Amended to correct scrivener’s errors.  Under the Matthews balancing test, the procedures employed by the hearing officer denied Petitioner procedural due process.  Arresting officer’s failure to appear for hearing, despite valid subpoena, denied the Petitioner opportunity to confront and cross-examine officer at the formal hearing within thirty days.  Hearing officer added a procedural step to review process by requiring Petitioner to pursue subpoena enforcement action pursuant to Fla. Stat. § 322.2615(6)(c).  Petition granted to the extent that Final Order is quashed and matter remanded for further proceedings.  Pfleger v. Florida Department of Highway Safety and Motor Vehicles, No. 10-000038AP-88B (Fla. 6th Cir. App. Ct. May 20, 2011).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Suspension – Probable cause – Offense Report, including witness statements identifying Petitioner as driver of vehicle, constituted competent, substantial evidence that the arresting officer had probable cause to believe that Petitioner was in actual physical control of the vehicle.  Fla. Stat. § 322.2615(2) does not govern decision where accident report was not admitted into evidence at the review hearing. Petition denied.  Miles v. State of Florida, Department of Highway Safety and Motor Vehicles, No. 11-000003AP-88B (Fla. 6th Cir. App. Ct. May 20, 2011).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Suspension – Blood test – Administrative order suspending license was supported by competent substantial evidence that a blood or urine test was impossible or impractical where Petitioner advised that he needed no medical attention; he was unable to follow simple instructions by hospital staff; he had trouble standing and walking and was unsteady on his feet;  he was able to follow the officers’ commands; and he was transported to the police department only after he was medically released. Facts of case are distinguishable from Curry and Vaughn. Petition denied.  Stone v. Department of Highway Safety and Motor Vehicles, No. 10-000052AP-88B (Fla. 6th Cir. App. Ct. April 7, 2011

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – cancellation of special supervision services program (SSS Program) – evidence.  The revocation of Petitioner’s restricted driver’s license was not supported by substantial, competent evidence.  Petition granted.   Truxton v. State of Florida, DHSMV, No. 10-CA-005908-WS (Fla. 6th Cir. App. Ct. January 28, 2011).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Suspension – Documentary evidence constituted competent, substantial evidence to sustain suspension of license based on Petitioner’s refusal to submit to an alcohol breath test, despite inconsistency about the time and date of the arrest, there is no real discrepancy about the order of events.  Petition denied.  Collins v. Department of Highway Safety and Motor Vehicles, No. 10-000026AP-88B (Fla. 6th Cir. App. October 29, 2010).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Suspension – Revocation of Petitioner’s driver’s license was mandated by Florida Statutes § 316.027 and § 322.26 upon the Department’s notification of his conviction for failure to stop and render aid after his motor vehicle crash involving injury or death.  Department afforded Petitioner the opportunity to submit evidence and show why his driving privilege should not be revoked permanently and did not depart from any of the statutory procedures or deprive Petitioner of due process by issuing a second order of revocation.  Petition denied.  Berta v. Department of Highway Safety and Motor Vehicles, No. 10-000014AP-88B (Fla. 6th Cir. App. Ct. October 27, 2010).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – implied consent – breath test – Arresting deputy had probable cause to believe Petitioner was driving a motor vehicle while impaired based on deputies’ observations, including Petitioner’s poor performance on field sobriety tests – Hearing officer properly sustained license suspension based on Petitioner’s refusal to submit to a breath test.  Petition denied.  Stacknick v. State of Florida, Department of Highway Safety and Motor Vehicles, No. 09-000054AP-88B (Fla. 6th Cir. App. Ct. August 5, 2010).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Suspension – Where results of one breath test showed unlawful blood alcohol level and results of another breath test showed lawful blood alcohol level, hearing officer was allowed to consider totality of evidence in determining whether driver was driving with unlawful blood alcohol level – Physical manifestations of impairment coupled with higher breath test result were sufficient to permit hearing officer to find by preponderance of evidence that licensee was driving with unlawful blood alcohol level. Petition denied.  Cruz v. Department of Highway Safety and Motor Vehicles, No. 09-000028AP-88B (Fla. 6th Cir. App. Ct. August 3, 2010).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Probable cause – Arresting officer had probable cause to believe Petitioner was driving a motor vehicle while impaired based on deputy’s observations – Petitioner was afforded due process even though hearing officer did not hear evidence regarding the lawfulness of the arrest pursuant to Fla. Stat. § 322.2615(7)(b) – Hearing officer properly sustained license suspension based on Petitioner’s refusal to submit to a breath test.  Petition denied.  Nissen v. State of Florida, Department of Highway Safety and Motor Vehicles, No. 09-000052AP-88B (Fla. 6th Cir. App. Ct. July 23, 2010).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Suspension – blood alcohol test – Decision to sustain Petitioner’s license suspension was not based on substantial competent evidence and departed from the essential requirements of law where hearing officer made no findings regarding the impracticality or impossibility of breath or urine testing, particularly in light of factual inconsistencies within the documentary evidence.  Petition granted.  Dente v. State of Florida, Department of Highway Safety and Motor Vehicles, No. 10-000008AP-88B (Fla. 6th Cir. App. Ct. July 22, 2010).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – cancellation of special supervision services program (SSS Program) – due process.  Petitioner was not denied due process by the lack of an attorney where he had the opportunity to present evidence and witnesses – Substantial evidence supported finding that he violated terms of the SSS Program by testing positive for alcohol use – Petitioner was given opportunity to dispute the reliability of the alcohol tests, but his submissions were inadequate to refute indications of alcohol use - - Petition denied.   Keeling v. Suncoast Safety Council, No. 09-000038AP (Fla. 6th Cir. App. Ct. April 16, 2010). 

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – probable cause – traffic stop – confusion doctrine.  Arresting deputy had probable cause to believe Petitioner was driving a motor vehicle while impaired based on deputy’s observations – Competent substantial evidence supported hearing officer’s determination that Petitioner failed to communicate to an officer his confusion about the interplay of his Miranda rights and implied consent – Hearing officer properly sustained license suspension based on Petitioner’s refusal to submit to a breath test - - Petition denied.  Mastenbroek v. State of Florida Department of Motor Vehicles, No. 09-000014AP-88B (Fla. 6th Cir. App. Ct. April 16, 2010).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – implied consent – breath test – implied consent law must be given before driver is requested to submit to breath test – documentary evidence submitted to hearing officer was inconsistent about when or if implied consent warning was given – Department failed to meet its burden to resolve discrepancies - Petition granted.  Steller v. Department of Highway Safety & Motor Vehicles, Appeal No. 09-0039AP-88A (Fla. 6th Cir. App. Div. December 21, 2009).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – implied consent – breath test – request for a "breath, urine, or blood test" does not render an implied consent warning invalid where there is nothing in the record demonstrating that law enforcement may have mislead petitioner into thinking a more invasive test was required – here, hearing officer had competent, substantial evidence to support license suspension and adhered to requirements of law – Petition denied.  Romine v. Department of Highway Safety & Motor Vehicles, Appeal No. 08-0043AP-88A (Fla. 6th Cir. Ct. App. Div.  Dec. 18, 2009).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSE – Implied consent warning. Florida Statute 322.2615(2) does not require that the Affidavit recount the specific information set forth in the Department’s promulgated form or that the complete text of the implied consent warnings be quoted verbatim in the arresting officer’s affidavit Petition for writ of certiorari denied. Avery v. State DHSMV,  No. 51-2007-CA-5838WST (Fla. 6th Cir. App. Ct.  July 23, 2009).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: DRIVER’S LICENSES – competent substantial evidence – unsworn reports.  Although arresting officer failed to sign “Refusal to Submit to Breath, Blood or Urine” affidavit, competent substantial evidence supported hearing officer’s finding that a breath, blood, or urine test was requested by the officer, implied consent warnings were given, and driver refused to submit to a test.  Petition denied.  Sands v. DHSMV, Appeal No. 08-000046AP-88B (Fla. 6th  Cir. App. Ct. July 17, 2009).

Petition for Writ of Certiorari to Review Quasi-Judicial Action:  Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES -Department may validly suspend a driver's license for a driver's refusal to submit to a breath-alcohol test when a law enforcement officer offers the driver the option of taking a breath test, a blood test, or a urine test- record in this case clearly demonstrates that the officer had probable cause to believe that the Petitioner was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages-.the  plain language of section 322.2615 limits the hearing officer’s scope of review to the three issues enumerated in the statute.  Petition of writ of certiorari denied. Notorleva v State DHSMV., No. 51-2008-CA-4682-WS/P (Fla. 6th Cir.App.Ct. May 11, 2009).

Petition for Writ of Certiorari to Review Quasi-Judicial Action:  Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Statutory findings.  Hearing officer made the findings required by Florida Statute §316.2615.  The degree of willfulness in refusing a breath test was a factual issue that the appellate court is not permitted to reweigh.  Petition denied.  Kimberly Simpson v. State DHSMV, No. 09-3AP-88A (Fla. 6th Cir.App.Ct. May 11, 2009).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – where petitioner admitted to the hearing officer that he operated a motor vehicle after revocation of this license-the hearing officer’s findings and judgment were supported by competent substantial evidence.  Petition for writ of certiorari denied. Loomis v. DHSMV, No. 08-CA-3953 ES P (Fla. 6th  Cir.App.Ct. May 7, 2009).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSE – Implied consent warning. Implied consent warning was not invalid where request of petitioner to submit to a “breath, urine, or blood” alcohol test, was held not to be a demand or implication for a more invasive test than actually required.  Petition denied.  Brown v. DHSMV, No. CRC08-0037AP-88A (Fla. 6th Cir.App.Ct. March 11, 2009)

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSE – Competent substantial evidence – Unsworn reports.  Arrest affidavit contained sufficient competent evidence to conclude that petitioner had been driving vehicle.  Unsworn reports were properly considered by hearing officer under Rule 15A-6.013(6) as relevant and timely submitted evidence; no extrinsic evidence of authenticity was required to admit the evidence.  Petition denied.  Zarraluqui v. DHSMV, No. CRC08-00039AP-88A (Fla. 6th Cir.App.Ct. March 11, 2009)

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – the petitioner was afforded procedural due process, the essential requirements of the law were observed, and the hearing officer’s findings and judgment were supported by competent substantial evidence.  Accordingly, petition denied. Thomas v. DHSMV, No. 08-0008AP-88B (Fla. 6th Cir.App.Ct. Sept. 22, 2008).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Due process – Sufficiency of evidence.  Any error from a hearing officer’s failure to notify petitioner of an option to have a urine sample retested, was harmless error and did not deprive due process when the petitioner’s defense to the positive urine test result was mistaken ingestion.  Hearing officers’ rejections of the petitioner’s evidence on defense were reasonable; therefore, the Appellate Panel will not substitute its judgment.  Petition denied. Paul v. DHSMV, No. 08-000012AP-88B (Fla. 6th Cir.App.Ct. Sept. 15, 2008).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES ––implied consent- petition granted where the only evidence before the hearing officer was that the officer read the Refusal Affidavit to petitioner which asks for breath, urine, or blood test-- --no  substantial competent evidence that the implied consent read to the petitioner complied with the statute. Petition granted.  McGregor v. Department of Hwy Safety and Motor Vehicles,  512007CA4337ES  (Fla. 6th Cir. App. Ct. August 14, 2008).  

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES ––implied consent- petition granted where the only evidence before the hearing officer was that the officer read the Refusal Affidavit to petitioner which asks for breath, urine, or blood test-- --no  substantial competent evidence that the implied consent read to the petitioner complied with the statute. Petition granted.  Fallin v. Department of Hwy Safety and Motor Vehicles, 512007CA3787ES (Fla.  6th Cir. App. Ct. June 27, 2008).  

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – competent substantial evidence - due process – subpoenas – the hearing officer’s finding that there was insufficient evidence of probable cause not supported by competent substantial evidence – only evidence in the record established that driver was operating a motor vehicle under the influence of alcohol – the half-page transcript shows that hearing officer set aside license suspension because officers failed to respond to subpoenas and failed to show cause for not attending hearing – record void of any evidence that officers received hearing officer’s order to show cause - to afford driver due process cause must be remanded to provide driver opportunity to present sworn evidence and testimony - Petition granted. City of Treasure Island v. Dept. of Highway Safety and Motor Vehicles, No. 07-0045AP-88B (Fla. 6th Cir. App. Ct. March 26, 2008).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – accident report privilege – actual physical control – accident report privilege set forth in Florida Statutes, section 316.066(7), has been abrogated by section 322.2615(2) – section 322.2615(2) states that a crash report shall be considered by the hearing officer – probable cause of actual physical control established by driver’s admission that he drove his truck into the ditch in addition to officer’s observations at the scene of the single car accident – driver had watery and bloodshot eyes, smelled of alcohol, and had fresh dirt on his arms - Petition denied. Juettner v. Dept. of Highway Safety and Motor Vehicles, No. 07-0061AP-88B ( Fla. 6th Cir. App. Ct. March 26, 2008).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – implied consent warning – inconsistencies in the evidence – Florida Statutes, section 316.1932(1)(a), requires that the implied consent warning be given before driver is requested to submit to a breath test – when the testimony and evidence presented to the hearing officer gives equal support to inconsistent references, there is not competent substantial evidence to support a valid refusal – documents and testimony of officers were inconsistent as to when implied consent warning was given - Petition granted. Ojiem v. Dept. of Highway Safety and Motor Vehicles, No. 07-0059AP-88B ( Fla. 6th Cir. App. Ct. March 26, 2008).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – breath test instrument – testing and inspection procedures – FDLE regulations – statutory construction – rules of statutory construction apply to regulations promulgated by the FDLE -  breath test instrument, tested on June 14, 2007, and again on July 14, 2007, complied with Administrative Code, Rule 11D-8.006(1), requiring breath test machines to be inspected at least once every calendar month – plain language of Rule 11D-8.006(2), requiring that Intoxilyzer 5000 be inspected before and after being moved, did not apply to an Intoxilyzer 8000 – Rule clearly distinguishes between testing and inspection for an Intoxilyzer 5000 and an Intoxilyzer 8000  - Petition denied. Walos v. Dept. of Highway Safety and Motor Vehicles, No. 07-0064AP-88A ( Fla. 6th Cir. App. Ct. Feb. 28, 2008).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – accident report privilege – actual physical control – accident report privilege set forth in Florida Statutes, section 316.066(7), has been abrogated by section 322.2615(2) – section 322.2615(2) states that a crash report shall be considered by the hearing officer – probable cause of actual physical control established by officer’s observations at the scene of the single car accident and hospital – driver had watery, bloodshot eyes, his speech was slurred and he smelled of alcohol - Petition denied. Cram v. Dept. of Highway Safety and Motor Vehicles, No. 07-0051AP-88B (Fla. 6th Cir. App. Ct. January 17, 2008).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – probable cause – competent substantial evidence - decision to set aside license suspension for DUI not supported by competent substantial evidence – all record evidence indicated that the driver was operating motor vehicle under the influence of alcohol at the time on the single-vehicle accident – driver was the only person at the scene, had apparent injuries, exhibited several signs of impairment, and admitted to drinking alcohol - Petition granted. City of Treasure Island v. Dept. of Highway Safety and Motor Vehicles, No. 07-0016AP-88B (Fla. 6th Cir. App. Ct. Nov. 30, 2007).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – accident report privilege – accident report privilege, as set forth in Florida Statutes, section 316.066(7), did not exclude statements made by driver when the driver was involved in hit and run accident -  hearing officer did not depart from the essential requirements of law in considering accident investigation report - final order of license suspension support by competent substantial evidence in the record - Petition denied. Tierney v. Dept. of Highway Safety and Motor Vehicles, No. 07-0025AP-88B (Fla. 6th Cir. App. Ct. October 1, 2007).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – documents submitted to hearing officer – actual physical control – driver waived issue of admissibility when she failed to object during the formal review hearing – reports were properly notarized and could be considered by hearing officer – Florida Statutes, section 322.2615(2), does not require the arresting officer to provide a narrative of events surrounding the arrest – competent substantial evidence in the record supported hearing officer’s finding of probable cause – the Court no longer has jurisdiction to review the lawfulness of the traffic stop - Petition denied. Brooks v. Dept. of Highway Safety and Motor Vehicles, No. 07-0023AP-88B ( Fla. 6th Cir. App. Ct. Sept. 18, 2007).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – breath test instrument – Florida Statutes, section 316.1934(5)(a)-(e) – substantial compliance with statutory criteria – where the breath test affidavit failed to disclose the date of the last maintenance of the breath test instrument, the breath test affidavit is fatally defective – nothing in the record to indicate that maintenance was performed on breath test instrument as required by section 316.1934 - Petition granted. Falcone v. Dept. of Highway Safety and Motor Vehicles, No. 07-0011AP-88B ( Fla. 6th Cir. App. Ct. Sept. 11, 2007).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: CIVIL PROCEDURE – Discovery – certiorari review is appropriate as there is no adequate remedy once private and confidential documents are disclosed – Administrative Law Judge departed from the essential requirements of law in denying the request of the City and the Office of the Medical Director for a protective order – Florida Statutes, section 401.425(5), states that investigations of a committee providing quality assurance are not subject to discovery – exception is the discovery of those matters within one’s personal knowledge – subpoenas issued by Vaughn should have been limited to material related to personal knowledge - Petition granted.  Pinellas County Emergency Medical Services, et. al. v. Vaughn, Appeal No. 06-0080AP-88B ( Fla. 6th Cir. App. Ct. Sept. 11, 2007

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES –– hearing officer departed from  the essential requirements of law and petitioner’s right to due process by validating the suspension of the petitioner’s driving privileges based on an affidavit of refusal improperly admitted into the record-although the requirements were present in the Affidavit of Refusal form, that form was not sworn to by the officer. Petition granted. Humes v. Dept Hwy Safety & Motor Vehicles, No. 512007CA856WS, 6th Cir. App. Ct. September 18, 2007).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – enhanced sentencing – statutory intent of Florida Statutes, section 322.28(2)(a)2 – intent of enhanced sentencing is to provide increased and added deprivation of driving privilege upon habitual DUI offenders – although driver’s first DUI conviction happened after second DUI arrest, Department did not err in revoking license for 5 years for receiving a second DUI conviction within a 5-year period - Petition denied. Bernsee v. Dept. of Highway Safety and Motor Vehicles, No. 07-0008AP-88A (Fla. 6th Cir. App. Ct. July 17, 2007).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – hardship license – suspension from special supervision services (SSS) program – due process – Petitioner was not denied due process by the SSS Program informing Petitioner that he did not need an attorney for appeal hearing – record supported conclusion that Petitioner violated terms of the SSS Program by testing positive for marijuana resulting in revocation of hardship license - Petition denied. Wilson v. Dept. of Highway Safety and Motor Vehicles, No. 06-0096AP-88B (Fla. 6th Cir. App. Ct. April 24, 2007).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – traffic stop -- legislature has specifically removed the consideration of the lawfulness of the stop, (by removing the requirement that the hearing officer determine the lawfulness of the arrest) from the scope of review of the hearing officer)- the hearing officer found all the elements necessary to sustain the suspension for refusal to submit to a breath, blood, or urine test, supported by a preponderance of the evidence. Petition denied.  Lycans v. DHSMV, No. 512006CA3936ES (6th Cir. App. Ct. April 23, 2007).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – implied consent – breath test – implied consent law must be given before driver is requested to submit to breath test – documentary evidence submitted to hearing officer was inconsistent about when implied consent warning was given – Department failed to meet its burden to resolve discrepancies - Petition granted. Cellamare v. Dept. of Highway Safety and Motor Vehicles, No. 06-0097AP-88A (Fla. 6th Cir. App. Ct. April 13, 2007).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – probable cause –BOLO – officer responding to anonymous BOLO tip failed to independently corroborate that driver was committing a crime before lawful traffic stop was conducted – officer failed to do any independent police work, rather stopped vehicle immediately upon seeing it matched the vehicle description - Petition granted. Daingerfield v. Dept. of Highway Safety and Motor Vehicles, No. 06-0086AP-88B (Fla. 6th Cir. App. Ct. April 12, 2007).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Stop- arrest report states deputy stopped defendant for speeding and failure to maintain a single lane-Uniform Traffic Citation  specifies radar as method by which petitioner was determined to be speeding-and indicates petitioner exceeded the posted speed.- sufficient competent evidence to support the hearing officer’s findings. Petition denied. Sprigg  v. Dept. of Highway Safety and Motor Vehicles, No. 512006CA473WS (Fla. 6th Cir. App. Ct. April 4, 2007).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – off-duty officer – citizen’s arrest – off-duty officer lawfully arrested driver, acting as a private citizen, when driver was threatening the public safety by being passed out behind the wheel of running vehicle stopped in the middle of the road obstructing traffic - Petition denied. Whitney v. Dept. of Highway Safety and Motor Vehicles, No. 06-0056AP-88B (Fla. 6th Cir. App. Ct. March 30, 2007).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – probable cause - actual physical control – accident privilege report – officer responding to two separate anonymous calls developed suspicion of criminal activity after observing driver try to put vehicle in reverse several times with two flat tires - officer’s observation of driver behind running automobile established actual physical control  - accident report privilege does not exclude officer’s observations - Petition denied. Smith v. Dept. of Highway Safety and Motor Vehicles, No. 06-0069AP-88A (Fla. 6th Cir. App. Ct. Feb. 7, 2007).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – probable cause – implied consent warning – officer’s “pace” of vehicle driving 50 m.p.h. in a 35 m.p.h. zone, coupled with observation of Petitioner driving in middle turn lane for two blocks, established objective basis to conduct traffic stop – the lack of a separate refusal affidavit is not fatal to sustain license suspension where arrest affidavit stated that implied consent warning was given and driver refused - Petition denied. Duggan v. Dept. of Highway Safety and Motor Vehicles, No. 06-0069AP-88B (Fla. 6th Cir. App. Ct. Feb. 7, 2007).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – hardship license – statutory changes - Department is not required to keep a driver informed of pending statutory changes that may impact his driving privilege or ability to obtain a hardship license – driver is subject to the laws in place at the time application for hardship license is submitted -  Petitioner would be ineligible to receive a hardship license under current Florida law due to his four previous DUI convictions - Petition denied. Gilmer v. Dept. of Highway Safety and Motor Vehicles, No. 06-0060AP-88B ( Fla. 6th Cir. App. Ct. Dec. 6, 2006).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – hardship license – competent substantial evidence - undisputed evidence showed that driver was not involved in 2 motor vehicle crashes as found by the Department – even if the hearing officer had not erroneously considered the 2 motor vehicle crashes, Petitioner does not dispute the hearing officer’s findings that she had 5 previous convictions and 6 previous suspensions – Court cannot reweigh the evidence or substitute its judgment for that of the hearing officer that Petitioner was ineligible for a hardship license - Petition denied. Pucci v. Dept. of Highway Safety and Motor Vehicles, No. 06-0016AP-88B (Fla. 6th Cir. App. Ct. Sept. 13, 2006).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – fellow officer rule – conflicting evidence - specific findings of fact – fellow officer rule allowed arresting deputy to rely on representations of officer that conducted traffic stop – hearing officer was charged with resolving conflicting evidence as to time of arrest and when breath test was administered – hearing officer is not required to make specific findings in addressing issues raised during the formal review hearing - Petition denied. Emley v. Dept. of Highway Safety and Motor Vehicles, No. 06-0019AP-88B (Fla. 6th Cir. App. Ct. July 7, 2006)

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – probable cause for traffic stop – fellow officer rule allowed arresting deputy to rely on representations of officer that conducted traffic stop – driver was observed driving on wrong side of wrong, failed to maintain single lane and was paced going 65 m.p.h. in a 45 m.p.h. zone – competent substantial evidence supports hearing officer’s conclusion that stop was lawful - Petition denied. Truxton v. Dept. of Highway Safety and Motor Vehicles, No. 06-0017AP-88B (Fla. 6th Cir. App. Ct. June 30, 2006).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – breath test affidavit – findings of fact - nothing in record to rebut presumption that administered breath tests substantially complied with applicable regulations – Department did not receive presumption of impairment as breath test affidavit was defective because operator failed to sign – hearing officer could consider other documents in non-affidavit form in determining whether Petitioner had an unlawful alcohol level – hearing officer not required to make specific findings in ruling on issues raised during formal review hearing  - Petition denied. Stott v. Dept. of Highway Safety and Motor Vehicles, No. 06-0023AP-88B (Fla. 6th Cir. App. Ct. June 30, 2006)

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES- hearing officer charged with resolving time discrepancies between breath test affidavit and arrest affidavit as to when Petitioner was arrested  - Petition denied. Stafisz v. State of Florida, DHSMV,  (Fla. 6th Cir. App. Ct. June 20, 2006).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER'S LICENSES - Accident Report Privilege - Breath Testing Procedures - Blood Alcohol Level - hearing officer properly considered the pre-Miranda statements made by the driver during the accident investigation since the accident was a hit-and-run - driver failed to establish that there were substantial differences between the approved testing procedures and the actual testing procedures that would impact validity of the breath test - there is no rule or binding case law that the use of software version 900.08 is unapproved -breath test administrator's lack of knowledge of chamber size and source of testing solutions does not render breath test invalid - Section 322.2615(7)(a)3 must be read to include formal review of license suspensions based on breath-alcohol level as well as blood-alcohol level --Petition denied. Shatz v. Dept. of Highway Safety and Motor Vehicles, No. 05-0002AP-88B (Fla. 6th Cir. App. Ct. April 25, 2006).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER'S LICENSES - Habitual Traffic Offender - Department properly considered the conviction for driving while license suspended (DWLS), with a conviction date of September 26, 2005, in finding the Petitioner was a habitual traffic offender as the driver paid the civil penalty and no exception applied - Section 318.14(4) provides that a person who pays a civil penalty for a noncriminal infraction is deemed to have admitted the infraction - Department erred in considering Petitioner's DWLS, with a conviction date of December 22, 2003, as this offense was the result of failure to attend a driver improvement course in which adjudication was withheld and Petitioner's driving privilege was reinstated - this infraction falls squarely within one of the defined exceptions set forth by sections 318.14(10)(a)1 and 318.14(11) - Petition granted. Kimel v. Dept. of Highway Safety and Motor Vehicles, No. 06-0002AP-88B (Fla. 6th Cir. App. Ct. April 25, 2006).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER'S LICENSES - Accident Report Privilege - Blood Alcohol Test - hearing officer erred in considering pre-Miranda statements of drivers involved in automobile accident taken during the accident investigation - hearing officer properly considered witnesses' statements that were not involved in accident - hearing officer erred in considering the results of the blood test where the record was void of evidence that a breath or urine test was impossible or impractical - hearing officer erred in considering the results of the blood test when the blood test was obtained as a result of the officer giving driver an ultimatum between submitting to a blood test or going to jail --Petition granted. Vaughn v. Dept. of Highway Safety and Motor Vehicles, No. 05-0094AP-88A (Fla. 6th Cir. App. Ct. March 20, 2006).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – traffic stop – officer had objective reason to conduct traffic stop – officer observed that vehicle was forced to take evasive action due to Petitioner’s driving behavior – hearing officer charged with resolving time discrepancies between breath test affidavit and arrest affidavit as to when Petitioner was arrested  - Petition denied. Rodriguez v. Dept. of Highway Safety and Motor Vehicles, No. 05-0097AP-88B (Fla. 6th Cir. App. Ct. March 7, 2006).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – breath test – record evidence showed that Petitioner had a medical condition that caused her to frequently belch, as she was during the breath test – no record evidence that medical condition prevented Petitioner from providing breath sample – hearing officer, as trier of fact, must resolve conflicting evidence as to whether Petitioner was able to provide breath sample - Petition denied. Wilkinson v. Dept. of Highway Safety and Motor Vehicles, No. 05-0059AP-88B (Fla. 6th Cir. App. Ct. March 7, 2006).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – subpoenaed officer – hearing officer erred in quashing police officer’s subpoena as there was no finding, nor record evidence, showing “just cause” for police officer’s excusal as required by the Florida Administrative Code, Rule 15A-6.015 – harmless error doctrine applied since Court could offer no more relief than that offered by the hearing officer during the formal review hearing below, that is a new hearing – hearing officer not required to be a licensed attorney - Petition denied. Leger v. Dept. of Highway Safety and Motor Vehicles, No. 05-0059AP-88B (Fla. 6th Cir. App. Ct. March 7, 2006).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – traffic stop – officer who responded to scene of a pool party where it appeared Petitioner had consumed alcohol failed to articulate a reason to stop Petitioner – it is not unlawful to consume alcohol – Petitioner did not commit a traffic infraction nor was driving behavior erratic - Petition granted. Pecorelli v. Dept. of Highway Safety and Motor Vehicles, No. 05-0076AP-88A (Fla. 6th Cir. App. Ct. Feb. 15, 2006).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – traffic stop – invalid sign – although “no right turn on red” sign was invalid, officer still articulated a lawful basis for stop – Petitioner failed to come to a complete stop before entering the intersection in violation of Florida Statutes, § 316.075(c)(1) - Petition denied. Phillips v. Dept. of Highway Safety and Motor Vehicles, No. 05-0077AP-88B (Fla. 6th Cir. App. Ct. Feb. 14, 2006).

Petition for Writ of Certiorari-Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Breath Test – county court did not have jurisdiction to enter an order requiring the Department  to amend an eleven year old driver's license suspension-defendant  did not request a hearing within time allotted -therefore, the Department 's determination to suspend defendant's  driver's license was merely a ministerial function and not a judicial determination pursuant to a hearing-county court was without authority and lacked jurisdiction to rule on defendant's suspension.   Petition granted. DHSMV v. Savelli, 05153CFAES, (Fla. 6th Cir. App. Ct., January 31, 2006).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – revocation of license based on accumulation of points – Department departed from the essential requirements of law in calculating Petitioner’s points – Department provided no explanation as to why it took 5 years to assess points for infraction cited in 2000 – date Petitioner failed to take driver improvement course, January 3, 2001, was date of conviction and when points should have been assessed - Petition granted.  Kuzmicz v. Dept. of Highway Safety and Motor Vehicles, No. 05-0080AP-88A (Fla. 6th Cir. App. Ct. Jan. 27, 2006).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – lawful arrest for DUI – evidence – there must be evidence that driver was lawfully arrested for DUI, in violation of Florida Statutes, § 316.193, to support license suspension for refusing to submit to breath test – since there was no evidence that driver was ever lawfully arrested for DUI, there is not competent substantial evidence to support license suspension – Petition granted.  Difante v. Dept. of Highway Safety and Motor Vehicles, No. 05-0031AP-88A (Fla. 6th Cir. App. Ct. Sept. 7, 2005); reh. denied, Dec. 16, 2005.

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – traffic stop – probable cause – confusion doctrine – traffic stop was lawful where driver appeared to be cutting off another vehicle - officer had probable cause to believe traffic fraction occurred – under fellow officer rule, it is of no consequence that officer conducting traffic stop did not believe there was probable cause to arrest driver for DUI at the time his observations were conveyed to investigating officer, who ultimately made the arrest – under confusion doctrine, driver has affirmative duty to make any confusion caused by having two rights read together known to law enforcement so that further clarification can be provided – there was no evidence that driver ever informed officer that she was confused by having her Miranda rights and the implied consent law read together --Petition denied.  Bolek v. Dept. of Highway Safety and Motor Vehicles, No. 05-0056AP-88B (Fla. 6th Cir. App. Ct. Dec. 16, 2005).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Implied Consent – Petitioner argument that there was no evidence in the record that he was properly advised must fail; the record contains a Refusal to Submit to Breath, Urine or Blood Test (DDL 5)-that document was reviewed by the hearing officer and made a part of the record. That document contains the necessary language of informed consent Petition denied. Ballinger v. State of Florida, Department of Highway Safety and Motor Vehicle, (Fla. 6th Cir. App. Ct. December 14, 2005).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES –the absence of the date on the notarization does not render the probable cause affidavit void- in the absence of any evidence to dispute that the affiant was fully and properly sworn before an authorized attesting officer, the affidavit is sufficient -verification on information or belief is permissible under section 322.2615(2)-. Petition denied- Lewandowski v. State Department of Highway Safety and Motor Vehicles, No:51-2004-CA-1674WS (Fla. 6th Cir. App. Ct. November 30, 2005).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES –– hearing officer did not depart from the essential requirements of law- law enforcement must render reasonable assistance in helping a DUI arrestee obtain an independent blood test upon request-- minimal aid may be sufficient- the officer afforded petitioner an opportunity to call someone to take the blood and urine test- appellate court must not substitute its judgment for that of the hearing officer - Petition denied. Craun v. State, No. 51-2004-ca-2034 (6th Cir. App. Ct. November 18, 2005).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – traffic stop – officer observed driver’s head bobbing up and down, but observed no traffic infraction or safety concern - when officer ordered driver to stop vehicle, detention occurred – officer did not articulate reasonable, objective grounds for the detention - Petition granted. Stenmark v. Dept. of Highway Safety and Motor Vehicles, No. 05-0051AP-88B (Fla. 6th Cir. App. Ct. Nov. 9, 2005).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – certiorari relief based on unlawful stop pursuant to road block must be denied under authority of Green v. State when officer directed driver to stop - Petition denied. Ellinger v. Dept. of Highway Safety and Motor Vehicles, No. 05-0047AP-88B (Fla. 6th Cir. App. Ct. Nov. 2, 2005).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – no competent substantial evidence in the record to support mandatory revocation pursuant to Sections 322.26(2) and 322.27(1)(a) – only document before hearing officer was DAVID report – DAVID report only generally stated accident was alcohol related, but did not provide results of blood test, that driver was arrested, or even suspected, of DUI - Petition granted. Darnley v. Dept. of Highway Safety and Motor Vehicles, No. 05-0013AP-88A (Fla. 6th Cir. App. Ct. Sept. 9, 2005).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Breath Test Affidavit – breath test affidavit was defective such that the Department did not receive the benefit of presumption of impairment – arrest narrative and Intoxilyzer print-out provided evidence that driver’s alcohol level was over the legal limit – hearing officer’s finding that driver was operating motor vehicle with an unlawful alcohol level supported by competent substantial evidence - Petition denied. Bradley v. Dept. of Highway Safety and Motor Vehicles, No. 05-0048AP-88A (Fla. 6th Cir. App. Ct. Sept. 7, 200).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Breath Test Refusal – hearing officer, as finder of fact, charged with determining that driver refused to submit to test – arresting officer testified that driver refused to provide adequate breath sample and observed that driver “faked” cough - hearing officer’s finding that driver refused breath test is supported by competent substantial evidence - Petition denied. Bennett v. Dept. of Highway Safety and Motor Vehicles, No. 05-0035AP-88A (Fla. 6th Cir. App. Ct. Sept. 7, 2005).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Hardship License – hearing officer’s interpretation of § 322.271 is reasonable and compatible with the intent of Chapter 322 to promote the public’s safety – there is no case law that holds a hardship license must be issued once driver has met certain requirements and a hearing is scheduled – hearing officer retains discretion to determine whether driver is a good candidate for early reinstatement - Petition denied. Miksch v. Dept. of Highway Safety and Motor Vehicles, No. 05-0013AP-88A (Fla. 6th Cir. App. Ct. Sept. 7, 2005).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Implied Consent – Confusion Doctrine – Beyer’s argument that she was confused by having two rights read together, Miranda and implied consent, must fail – driver never made her confusion known to the officer so that officer could have an opportunity to provide further explanation - Petition denied. Beyer v. Dept. of Highway Safety and Motor Vehicles, No. 05-0017AP-88A (Fla. 6th Cir. App. Ct. Sept. 7, 2005).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Traffic Stop –failure to maintain single lane- Department departed from the essential requirements of law by failing to invalidate traffic stop - there was not an objectively reasonable basis to conduct the traffic stop -- there was not competent substantial evidence that Petitioner’s vehicular movements created a danger to himself or other traffic – no real indication as to the length of time in which the observations took place or the distance involved-no evidence that officer suspected Petitioner was driving under the influence or that officer conducted traffic stop to determine if Petitioner was ill or tired -- Petition granted. Wideman v. Department of Highway Safety and Motor Vehicles, No:51-2005-CA-1440ES (Fla. 6th Cir. App. Ct. August 11, 2005).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – early reinstatement of driver’s license – hearing officer did not depart from the essential requirements of law in denying application for “business purposes only” license, pursuant to section 322.271(1)(c), based on the medical needs of driver’s mother – appellate court must defer to reasonable interpretation of statute by the administering agency - Petition denied. Harmon v. Dept. of Highway Safety and Motor Vehicles, No. 05-0009AP-88B (6th Cir. App. Ct. July 12, 2005).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – actual physical control – hearing officer charged with weighing conflicting evidence – competent substantial evidence in the record supports hearing officer’s conclusion that driver was in actual physical control of vehicle – officer observed vehicle drive erratically and observed driver exit the vehicle - Petition denied. Gostyla v. Dept. of Highway Safety and Motor Vehicles, No. 05-0020AP-88B (6th Cir. App. Ct. July 8, 2005).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Hardship license – doctrine of equitable estoppel applied under the facts of this case – Department was estopped from denying a hardship license for the sole reason that Petitioner was driving on a license that the Department erroneously issued – --Petition granted. Husen v. Dept. of Highway Safety and Motor Vehicles, No. 04-0056AP-88A (Fla. 6th Cir. App. Ct. May 18, 2005).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – accident report privilege - law enforcement officer oath form – no evidence was presented to dispute that form was not properly sworn to by an authorized law enforcement officer – accident report privilege extends only to those involved in crash - no evidence in the record that witness who gave statement was involved in crash so her witness statement lawfully considered – witness statement and reasonable inferences establish probable cause of DUI --Petition denied. Smith v. Dept. of Highway Safety and Motor Vehicles, No. 05-0006AP-88B (Fla. 6th Cir. App. Ct. May 5, 2005).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – sobriety checkpoint – lack of competent substantial evidence that the Sobriety Checkpoint Plan was complied with – checkpoint started at 12:30 a.m. but driver was arrested for DUI at 12:35 a.m. – initial driver contact and field sobriety tests necessarily take longer than 5 minutes --Petition granted. Schreiber v. Dept. of Highway Safety and Motor Vehicles, No. 04-0078AP-88A (Fla. 6th Cir. App. Ct. April 26, 2005).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – termination for Special Supervision Services Program – hearing officer charged with weighing conflicting evidence – positive urinalysis for marijuana is competent substantial evidence to support termination from SSS Program --Petition denied. Wojciechowski v. Dept. of Highway Safety and Motor Vehicles, No. 04-0090AP-88B (Fla. 6th Cir. App. Ct. March 3, 2005).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – breath test – Florida Statute, § 316.2615(7)(b)(3), requires hearing officer to determine that driver refused to submit to breath test – there is no requirement that hearing officer find that refusal was knowing or willful – Court cannot reweigh the conflicting evidence to reach a different conclusion that driver refused breath test - Petition denied. Rawa v. Dept. of Highway Safety and Motor Vehicles, No. 04-0088AP-88B (Fla. 6th Cir. App. Ct. March 3, 2005).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – BOLO – investigatory stop – while deputy was responding to a BOLO, the initial contact with the driver was a consensual citizen/police encounter – driver was parked at a convenience store and officer did not activate his emergency lights or restrict driver’s movement – deputy had reasonable suspicion that the driver had committed or was about to commit a crime at the point driver was asked to exit the vehicle - Petition denied. Cook v. Dept. of Highway Safety and Motor Vehicles, No. 04-0067AP-88A (Fla. 6th Cir. App. Ct. March 3, 2005).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Permanent revocation – defendant’s plea agreement in separate criminal proceeding has no bearing on Department’s revocation for four DUI convictions – application of laches or estoppel has no application when permanent revocation was statutorily mandated - Petition denied. Starr v. Dept. of Highway Safety and Motor Vehicles, No. 04-0076AP-88A (Fla. 6th Cir. App. Ct. March 2, 2005).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – revocation following second DUI – Court must give deference to hearing officer’s interpretation of New York’s Traffic Law § 1192 “Driving while ability impaired” - § 1192 would be grounds for a DUI conviction pursuant to § 316.193 – criminal trial court order does not operate as collateral estoppel or res judicata on administrative action - Petition denied. Wunderlich v. Dept. of Highway Safety and Motor Vehicles, No. 04-0048AP-88A (Fla. 6th Cir. App. Ct. Jan. 10, 2005).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Blood tests – Florida Statutes, §316.1932(1)(c) sets forth 3 criteria for when a driver is deemed to have given his consent for a blood test:  (1) if there is reasonable cause to believe the person was driving or in actual physical control of a motor vehicle while under the influence of alcohol; (2) the person appears for treatment at a hospital, clinic or other medical facility; and (3) the administration of a breath test is impractical or impossible – the first 2 criteria were met - no competent substantial evidence to show 3rd criteria was met, that the administration of a breath test was impractical or impossible  - Petition granted.  Curry v. Dept. of Highway Safety and Motor Vehicles, No. 04-0061AP-88B (Fla. 6th Cir. App. Ct. November 22, 2004).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Traffic Stop – failure to maintain single lane – Department departed from the essential requirements of law by failing to invalidate traffic stop – there was not an objectively reasonable basis to conduct the traffic stop -- there was not competent substantial evidence that Petitioner’s vehicular movements created a danger to himself or other traffic – no evidence that officer suspected Petitioner was driving under the influence or that officer conducted traffic stop to determine if Petitioner was ill or tired -- Petition granted. Nefe v. Department of Highway Safety and Motor Vehicles, No: 51-2003-CA-2236ES (Fla. 6th Cir. App. Ct. November 21, 2004).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Appendix – appellate court cannot issue an order to show cause - petition is not accompanied by an appendix and fails to demonstrate a preliminary basis for relief - Petition denied.  Nordlinder v. Dept. of Highway Safety and Motor Vehicles, No. 04-0070AP-88A (Fla. 6th Cir. App. Ct. November 17, 2004).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Hardship License – Department violated Petitioner’s due process rights and departed from the essential requirements of law by relying on statements not presented at hardship license hearing – statements provided by references after hearing were unsworn and Petitioner had no opportunity to object – Department had no authority to require driver to provide four references – Florida Administrative Code Rule 15A-1.019(c) provides that three letters of recommendation are required --Petition granted.  Arroyo v. Dept. of Highway Safety and Motor Vehicles, No. 04-0051AP-88B (Fla. 6th Cir. App. Ct. Oct. 20, 2004).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Traffic Stop – failure to maintain single lane – Department departed from the essential requirements of law by failing to invalidate traffic stop – there was not an objectively reasonable basis to conduct the traffic stop -- there was not competent substantial evidence that Petitioner’s vehicular movements created a danger to himself or other traffic – no evidence that officer suspected Petitioner was driving under the influence or that officer conducted traffic stop to determine if Petitioner was ill or tired -- Petition granted. Kurdziel v. Department of Highway Safety and Motor Vehicles, No: 51-2004-CA-0178WSP (Fla. 6th Cir. App. Ct. October 18, 2004).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Ignition Interlock Device – Department Has the authority pursuant to Florida Statutes, § 316.193(2)(a)3, and Florida Administrative Code Rule 15A-9.004(1) to require a driver to install an ignition interlock device following a second DUI conviciotn  --Petition denied.  Boyce v. Dept. of Highway Safety and Motor Vehicles, No. 04-0016AP-88B (Fla. 6th Cir. App. Ct. Oct. 6, 2004).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – hardship license – Department committed several procedural errors that resulted in a violation of driver’s due process rights – neighboring DUI special supervision services program was required to conduct hearing after being notified by driver of intent to appeal termination from program – hearing before hearing officer was not meaningful review - Petition granted.  Oleska v. Dept. of Highway Safety and Motor Vehicles, No. 04-0046AP-88A (Fla. 6th Cir. App. Ct. Sept. 24, 2004).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – traffic stop – traffic stop for careless driving was lawful – competent substantial evidence in the record to find driver’s behavior posed a safety risk to others – driver was observed “power braking” several times behind a stopped vehicle – reasonable to infer that stopped vehicle accelerate at a high rate of speed to avoid collision – officer had sufficient facts to establish driver was not operating truck in a careful and prudent manner --Petition denied.  Murray  v. Dept. of Highway Safety and Motor Vehicles, No. 04-0037AP-88B (6th Cir. App. Ct. August 24, 2004).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: Driver’s Licenses – Record supported trial court’s determination that petitioner may be unfit to drive, and therefore her driver’s license was properly suspended by the Department subject to reexamination. Petitioner failed to establish sufficient justification for her failure to appear for reexamination. – Petition denied. Petrano v. State, No. CRC 03-44 APANO (Fla. 6th Cir. App. Ct. Aug. 23, 2004).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – field sobriety tests – hearing officer erred in considering FSTs that were obtained as a result of misinformation – FSTs are not mandatory pursuant to Florida’s implied consent law – hearing officer’s consideration of FSTs is harmless error – even without FSTs there is competent substantial evidence in the record to support finding of probable cause to make lawful DUI arrest --Petition denied.  Peden  v. Dept. of Highway Safety and Motor Vehicles, No. 04-0043AP-88B (6th Cir. App. Ct. August 19, 2004).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – special supervision services program – due process – driver did not avail himself of the appeal process following his termination from SSS program for being “under the influence” – driver cannot complain on appeal that he was denied due process when he declined opportunity to dispute the reliability of alcohol test --Petition denied.  Titus  v. Dept. of Highway Safety and Motor Vehicles, No. 04-0049AP-88B (6th Cir. App. Ct. August 18, 2004).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Traffic Stop – reasonable suspicion of DUI – driver was not observed driving in an unlawful manner – police were at residence when driver arrived home – driver was loud and demanding, had the odor of alcohol, and his eyes were bloodshot and watery – totality of facts establish reasonable suspicion to conduct DUI investigation - Motion for Rehearing Granted -- Petition denied.  Reh  v. Dept. of Highway Safety and Motor Vehicles, No. 04-00021AP-88B (Fla. 6th Cir. App. Ct. July 30, 2004).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Implied Consent – Miranda rights – there is no evidence to support Petitioner’s argument that she was confused between her right to remain silent and the officer’s request for the Petitioner to take the breath test – hearing officer is not required to believe the testimony of any witness, even if unrebutted -- Petition denied.  Barrett  v. Dept. of Highway Safety and Motor Vehicles, No. 04-0019AP-88A (Fla. 6th Cir. App. Ct. July 7, 2004).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Breath Test – record supports hearing officer’s determination that petitioner refused to take breath test – aside from petitioner’s testimony there was no evidence to support argument that he unequivocally retracted his refusal in the presence of the officer and that no inconvenience would result from allowing the petitioner to take the breath test – hearing officer is not required to believe the testimony of any witness, even if unrebutted -- Petition denied.  Kanakaris v. Dept. of Highway Safety and Motor Vehicles, No. 04-0020AP-88A (Fla. 6th Cir. App. Ct. June 30, 2004).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Actual Physical Control – whether an individual is in actual physical control of motor vehicle at the time of traffic stop is fact specific and must be determined on a case-by-case basis – abundance of evidence presented at hearing from which hearing officer could reasonably infer actual physical control – petitioner found sitting behind the steering wheel in the driver’s seat and the keys were sitting on the center console --Petition denied.  Krivanek v. Dept. of Highway Safety and Motor Vehicles, No. 02-7769CI-88A (Fla. 6th Cir. App. Ct. June 19, 2004).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Traffic Stop – Lawful Arrest - officer had reasonable suspicion to conduct traffic stop when driver was speeding 114 mph in a 65 mph zone – probable cause to arrest for DUI was developed after traffic stop – officer smelled odor of alcohol, petitioner stated he had been drinking and HGN check revealed signs of impairment – no support for argument that petitioner was misinformed about implied consent --Petition denied.  Stern v. Dept. of Highway Safety and Motor Vehicles, No. 04-0012AP-88A (Fla. 6th Cir. App. Ct. June 8, 2004).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Breath Test – Lawful Arrest – affidavit of refusal was valid when driver refused breath test after being read the implied consent warning – record supports finding that arrest was lawful – officer made arrest based on the totality of the circumstances, not solely for driver’s refusal to perform field sobriety tests -- Petition denied.  Riemer v. Dept. of Highway Safety and Motor Vehicles, No. 04-0001AP-88A (Fla. 6th Cir. App. Ct. May 28, 2004).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Breath Test – no record evidence to support Petitioner’s argument that he was misled by improper reading of implied consent warning after he was “Mirandized” – hearing officer, as the trier of fact, is in the best position to evaluate the evidence -- Petition denied.  Homer v. Dept. of Highway Safety and Motor Vehicles, No. 04-00011AP-88A (Fla. 6th Cir. App. Ct. April 30, 2004).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Traffic Stop – although officer did not get a tag number and was unable to identify driver, record supports finding that vehicle stopped was the same one observed speeding through intersection a short time before -- Petition denied.  Meisman v. Dept. of Highway Safety and Motor Vehicles, No. 04-0004AP-88A (Fla. 6th Cir. App. Ct. April 28, 2004).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Traffic Stop – failure to maintain single lane – Department departed from the essential requirements of law by failing to invalidate traffic stop – there was not an objectively reasonable basis to conduct the traffic stop -- there was not competent substantial evidence that Petitioner’s vehicular movements created a danger to himself or other traffic – no evidence that officer suspected Petitioner was driving under the influence or that officer conducted traffic stop to determine if Petitioner was ill or tired -- Petition granted.  Stowell v. Dept. of Highway Safety and Motor Vehicles, No. 04-0002AP-88B (Fla. 6th Cir. App. Ct. March 23, 2004).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Traffic Stop – failure to maintain single lane – Department departed from the essential requirements of law by failing to invalidate traffic stop – there was not an objectively reasonable basis to conduct the traffic stop -- there was not competent substantial evidence that Petitioner’s vehicular movements created a danger to himself or other traffic – no evidence that officer suspected Petitioner was driving under the influence or that officer conducted traffic stop to determine if Petitioner was ill or tired -- Petition granted.  Boyd v. Dept. of Highway Safety and Motor Vehicles, No. 02-9322CI-88B (Fla. 6th Cir. App. Ct. March 1, 2004).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Traffic Stop – failure to maintain single lane – Department departed from the essential requirements of law by failing to invalidate traffic stop – there was not an objectively reasonable basis to conduct the traffic stop -- there was not competent substantial evidence that Petitioner’s vehicular movements created a danger to himself or other traffic – no evidence that officer suspected Petitioner was driving under the influence or that officer conducted traffic stop to determine if Petitioner was ill or tired -- Petition granted.  Roth v. Dept. of Highway Safety and Motor Vehicles, No. 02-9322CI-88B (Fla. 6th Cir. App. Ct. Feb. 26, 2004).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – formal review hearing – subpoenaed witnesses – transcript – where this is no transcript of the hearing petitioner cannot demonstrate error – hearing officer, as the trier of fact, was in the best position to determine “just cause” for excusing subpoenaed officer.  Petition denied. Huynh v. Dept. of Highway Safety and Motor Vehicles, No. 03-5052AP-88B (Fla. 6th Cir. App. Ct. Feb. 23, 2004).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – traffic stop – from the totality of the facts and circumstances, officer had founded suspicion to justify traffic stop – driver stopped his vehicle several car lengths behind stop bar and left his lane of travel several times.  Petition denied. Pharo v. Dept. of Highway Safety and Motor Vehicles, No. 03-5024AP-88A (Fla. 6th Cir. App. Ct. Feb. 12, 2004).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – lawful arrest – fellow officer rule – back-up officer had authority to arrest driver for DUI – officer conducting traffic stop had first hand knowledge of the events when he observed the car accident – back-up officer could rely on those representations to develop probable to make a lawful arrest. Petition denied. Grady v. Dept. of Highway Safety and Motor Vehicles, No. 03-5069AP-88B (Fla. 6th Cir. App. Ct. Feb. 11, 2004).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Traffic Stop – Fellow Officer Rule – officer need only have a reasonable suspicion in order to conduct a traffic stop – officer conducted traffic stop after observing Petitioner speeding and drifting in lane and believed Petitioner to be ill, tired, or under the influence – intoxilyzer officer was qualified to administer breath test under fellow officer rule -- Petition denied.  Park  v. Dept. of Highway Safety and Motor Vehicles, No. 03-5014AP-88B (Fla. 6th Cir. App. Ct. Feb. 5, 2004).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Breath Test – affidavit of refusal and testimony of officer that Petitioner refused breath test was competent substantial evidence to support hearing officer’s finding that Petitioner refused breath test after being properly informed of implied consent law – Petition denied.  Evansen  v. Dept. of Highway Safety and Motor Vehicles, No. 03-5055AP-88A (Fla. 6th Cir. App. Ct. Feb. 3, 2004).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Traffic Stop – Breath Test – traffic citation for speeding and intoxylizer report showing Petitioner was driving with an unlawful alcohol level were documents generated at the time of Petitioner’s arrest and were properly considered by the hearing officer – “low sample volume” breath tests substantially complied with applicable regulations – Petition denied.  Wilcox v. Dept. of Highway Safety and Motor Vehicles, No. 03-3057CI-88B (Fla. 6th Cir. App. Ct. Feb. 2, 2004).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER'S LICENSES - denial of early reinstatement of driver license following revocation for second DUI conviction conformed to the essential requirements of law - Petitioner admitted that he had driven a vehicle within the previous 12-month period in violation of Fla. Stat. 322.271 - Petitioner's due process rights were not violated by the hearing officer communicating with Petitioner's references outside of his presence. Pope v. Dept. of Highway Safety and Motor Vehicles, No. 02-8678-CI-88A (Fla. 6th Cir. App. Ct. Jan. 22, 2004).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Breath Test -- where arresting officer observed petitioner from 2:34 a.m. until 2:54 a.m., 20-minute observation period required by Fla. Admin. Code Rule 10D-024(1)(e) was substantially complied with – Petition denied.  Deas v. Dept. of Highway Safety and Motor Vehicles, No. 03-5046AP-88B (Fla. 6th Cir. App. Ct. Jan. 9, 2004).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Early Reinstatement – Department acted within its authority pursuant to Fla. Stat. 322.25 in revoking Petitioner’s driver license for a period of one year and in denying Petitioner’s early reinstatement application when Petitioner continued to drive while his license was suspended – Petition denied.  Reeves v. Dept. of Highway Safety and Motor Vehicles, No. 03-5048AP-88B (Fla. 6th Cir. App. Ct. Jan. 9, 2004).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles:  DRIVER’S LICENSES – Actual Physical Control of Motor Vehicle – arrest affidavits, which included Petitioner’s self-incriminating statements, were not competent substantial evidence that Petitioner was in actual physical control of motor vehicle – self-incriminating statements made pre-arrest could not be used to establish probable cause that Petitioner was driving – Petition granted.  Barringer v. Dept. of Highway Safety and Motor Vehicles, No. 03-3057CI-88B (Fla. 6th Cir. App. Ct. Jan. 6, 2004).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES – Challenges to the breath testing equipment were the same as were made in Department of Highway Safety and Motor Vehicles v Alliston, 813 So.2d 141 (Fla. 2d DCA 2002) – Abatement lifted upon conclusion of appellate review in Alliston case – Applying Alliston, there was competent substantial evidence to support the Hearing Officer’s conclusion that the Petitioner had an unlawful breath alcohol level – However, petitioner’s statement that she was the driver was protected by the accident report privilege – Eyewitness statements were not relied upon by arresting officer - No competent substantial evidence to support the Hearing Officer’s finding and conclusion that the arresting law enforcement officer had probable cause to believe Petitioner was driving a motor vehicle while under the influence. Petition granted. Riley v. Dept. of Highway Safety and Motor Vehicles, No. 01-8263-CI-88A (Fla. 6th Cir. App. Ct. Jan 30, 2003).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES - denial of petitioner’s application for a hardship license restricted to business purposes observed the essential requirements of the law, afforded the petitioner due process, and was based on competent substantial evidence – One of applicant’s references stated that she had consumed alcohol during the suspension period – FS 322.271(2)(b) has been interpreted as requiring an applicant to refrain from drug use and from alcohol consumption during the twelve-month period prior to the reinstatement hearing. Petition denied. Wery v. Dept. of Highway Safety and Motor Vehicles, No. 02-8678-CI-88A (Fla. 6th Cir. App. Ct. Jan. 17. 2003).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Department of Highway Safety and Motor Vehicles: DRIVER’S LICENSES - Hearing Officer’s conclusion that Petitioner refused to take the DUI breath test by failing to provide proper breath samples was not supported by competent, substantial evidence – “Low sample volume” breath samples met all the requirements set out by Rule 11D-8.002(13) defining Approved Breath Alcohol Test – Petition granted. Sharp v. Dept. of Highway Safety and Motor Vehicles, No. 02-4337 CI-88A (Fla. 6th Cir. App. Ct. Dec 20, 2002), cert. den,861 So.2d 32 (Fla. 2d DCA 2003).

When the evidence supports two inconsistent findings, it is the hearing officer’s role to decide the issue one way or the other.  There is competent substantial evidence in the record to support the hearing officer’s findings of fact and final determination that the Petitioner’s driving privilege was lawfully suspended.  Birkbeck v. State of Florida, Dept. of Highway Safety & Motor Vehicles, No. 01-8831-CI-88A (Fla. 6th Cir. Ct. February 8, 2002).

The Petition is denied as the record reflects that the Petitioner refused multiple requests to take a breath test, even after the implied consent warning was explained to him, insisting instead on taking a blood test.  Florida law provides that a person lawfully arrested for DUI does not have the right to select the initial type of test; it is the police officer who requests the test, not the driver who selects it.  Birkbeck v. State of Florida, Dept. of Highway Safety & Motor Vehicles, No. 01-8831-CI-88A (Fla. 6th Cir. Ct. February 8, 2002).

The defendant’s claim that the magistrate’s action in suspending his driver license for two months was an erroneous enhancement and an ex post facto penalty was without merit.  The record on appeal indicates that the defendant committed numerous traffic violations in both Pinellas and Hillsborough County within the past three years and Sec. 316.655(2) Fla. Stat. provides that drivers convicted of a violation of any prohibited offense regulating motor vehicles may have their driving privileges suspended by the court if the suspension is warranted by the totality of the circumstances resulting in the conviction. Adams v. State, No. 01-07119 CFANO (Fla. 6th Cir. Ct. January 9, 2002).

Disqualification of a hearing officer is not required where in a previous hearing the hearing officer made an error of law, and that error was corrected after appellate review. Nothing to show that the hearing officer was prejudiced against the attorney who had sought appellate review. Obando v. Dept. of Hwy. Safety and Motor Vehicles, No. 01-4730 CI – 88B, (Fla. 6th Cir.Ct. Oct. 16, 2001).

Even though adjudication withheld, it was still a conviction for purposes of the habitual traffic offender statute -- §322.264. Therefore, the petitioner’s driver’s license was properly suspended. Raynovich v. Department of Hwy. Safety and Motor Vehicles, No. 01-3607 CI – 88B, (Fla. 6th Cir.Ct. Sept. 12, 2001).

The order entered by the hearing officer was within the 7 - day period contemplated by §322.2615(6)(d) because the DHSMV office was closed Saturday, Sunday and Monday. Moreover, the petitioner could not show prejudice from the delay. Rossman v. Dept. of Hwy. Safety and Motor Vehicles, No. 01-4496 CI – 88B, (Fla. 6th Cir.Ct. Sept. 10, 2001).

The hearing officer complied with Florida Statutes, Section 322.2615(6)(d), when he entered his order on April 11, 2001, following the March 29, 2001 formal review hearing.  Section 322.2615(6)(d) requires that an order be entered within 7 working days following the review hearing, but excludes Saturdays, Sundays, legal holidays and any other day in which the division office is closed.  Vanworp v. Dept. of Highway Safety & Motor Vehicles, No. 01-3363-CI-88A (Fla. 6th Cir. Ct. August 1, 2001).

A driver’s license is a privilege in which there is no property interest.  The officer had an objective basis to conduct a lawful traffic stop, as the automobile did not match its registration information.  Under the fellow officer rule, the violation need not be committed in the presence of the arresting officer.    Holder v. Dept. of Highway Safety & Motor Vehicles, No. 01-2805-CI-88A (Fla. 6th Cir. Ct. August 1, 2001).

Statements contained in the police report were properly considered by the hearing officer and admitted into evidence; the statements were not made by witnesses or persons involved in the accident so were not precluded by the accident report privilege.  The Petition failed to meet his burden of proof that he lacked the capacity to refuse the blood test.  Basso v. Dept. of Highway Safety & Motor Vehicles, No. 01-3009-CI-88A (Fla. 6th Cir. Ct. August 1, 2001).

Statements made by the driver of the other vehicle involved in the accident were properly admitted into evidence.  The admission of the statements did not violate Petitioner’s fifth amendment privilege against self-incrimination as the statements were not made by the Petitioner.  Kwiatkowski v. Dept. of Highway Safety and Motor Vehicles, No.  01-2285-CI-88A (Fla. 6th Cir. Ct. June 18, 2001).

Officer’s observation of the Petitioner’s driving behavior (driving slowly and hitting the yellow median line twice), even if it did not rise to the level of a traffic offense, did provide an objective basis to initiate a traffic stop.  An investigatory stop by the officer was warranted to ascertain the Petitioner’s welfare.  Griffith v. Dept. of Highway Safety and Motor Vehicles, No. 01-123-CI-88A (Fla. 6th Cir. Ct. April 24, 2001).

The fellow officers rule allows the arresting officer to assume that probable cause to arrest a suspect exists when he relies upon the representations of an officer who has first hand knowledge.  Assalti v. Dept. of Highway Safety and Motor Vehicles, No. 01-0035-CI-88A (Fla. 6th Cir. Ct. March 28, 2001); rehearing denied, May 1, 2001.

The receipt of a hardship license is in the Department’s discretion and the Department is authorized to assess an applicant’s qualification, fitness and need to drive.  The Hearing Officer properly denied early reinstatement of the Petitioner’s driving privilege as she had operated a motor vehicle while under a five-year driver’s license revocation.  Fla. Stat. 322.271(2)(b), Fla. Admin. C. R. 15A-1.019. Steigerwald v. State of Florida, Dept. of Highway Safety, No. 00-4096-CI-88A (Fla. 6th Cir. Ct. September 7, 2000).

There was competent substantial evidence to support the conclusion of the Department that the Petitioner refused to submit to a breath test after being properly informed that his driving privilege would be suspended for such refusal. Sartor v. State of Florida, Dept. of Highway Safety, No. 00-2710-CI-88A (Fla. 6th Cir. Ct. September 6, 2000).

In order to justify an investigative stop, a police officer must have a well-founded suspicion that the subject of the stop is, or is about to become, involved in criminal activity.  Competent substantial evidence requires more than speculative evidence or hypothetical possibilities.  Since the record does not contain evidence of a well-founded suspicion of criminal activity or other behavior by the Petitioner that would warrant an investigative stop, the Department’s conclusion that the Petitioner was lawfully arrested is not supported by competent substantial evidence. Seltzer v. State of Florida, Dept. of Highway Safety, No. 00-1552-CI-88A (Fla. 6th Cir. Ct. September 6, 2000).

Petition for Writ of Certiorari was properly denied where due process was afforded by a hearing officer who observed the essential requirements of law, and whose findings were supported by substantial competent evidence in entering a Final Order of License Suspension.  The court found no defect in the refusal affidavit merely based upon when the arresting officer’s statements were attested to, the petitioner was fully informed of the consequences of the refusal and subsequently did refuse, and the hearing officer did not lack impartiality.  Daily v. State of Florida, Department of Highway Safety and Motor Vehicles, No. 00-0042-CI (Fla. 6th Cir. Ct. August 4, 2000).

The Petitioner was not denied procedural due process by the Safety’s Council’s immediate notification to the Department of the Petitioner’s DUI program violation or by the Department’s subsequent entry of the Order revoking the Petitioner’s driving privilege before the administrative appeal process was complete.  Fla. Stat. 322.271 Rohrer v. State of Florida, Dept. of Highway Safety, No. 00-1409-CI-88A (Fla. 6th Cir. Ct. July 21, 2000).

From the facts and circumstances of this case, a reasonable person would conclude that the Petitioner was driving the vehicle and there was probable cause sufficient to justify the Petitioner’s arrest. Coutre v. State of Florida, Dept. of Highway Safety, No. 99-2467-CI-88A (Fla. 6th Cir. Ct. July 21, 2000).

The Petitioner’s driving pattern did not objectively establish a founded or reasonable suspicion of impairment to warrant a traffic stop and there was no other objective basis for suspecting that the Petitioner was impaired.  Therefore, the Department’s conclusion that the Petitioner was lawfully arrested is not supported by competent, substantial evidence. Sitko v. State of Florida, Dept. of Highway Safety, No. 99-6783-CI-88A (Fla. 6th Cir. Ct. July 5, 2000).

The stringent admissibility requirements for blood-alcohol results in criminal proceedings are not applicable to the more relaxed requirements of the Department’s administrative review of license suspensions.  Further, the hearing officer shall consider any report submitted by a law enforcement officer or agency relating to the arrest of the driver and the administration of a blood test.  Fla. Stat. 322.2615(2); Fla. Admin.C. Rule 15A-6.013. Burd v. State of Florida, Dept. of Highway Safety, No. 00-1519-CI-88A

The Department did not depart from the essential requirements of law or deny the Petitioner due process when it:  did not continue the hearing so that the paramedic, a witness, could obtain his official report and review prior to testifying; refused to let the paramedic give his opinion on whether the Petitioner was intoxicated; and, did not allow testimony about the distance the Petitioner walked to arrive at the location where the field sobriety tests were administered. Brist v. State of Florida, Dept. of Highway Safety, No. 99-7285-CI-88A (Fla. 6th Cir. Ct. June 29, 2000).

Florida Statutes, section 322.28(5), which states that a court may not stay the administrative suspension of a driving privilege is constitutional. Sitko v. State of Florida, Dept. of Highway Safety, No. 99-6783-CI-88A (Fla. 6th Cir. Ct. June 29, 2000).

Although the Petitioner indicated he might take a blood test, the Petitioner did not have a right to select the initial type of test used to determine his blood alcohol level.  Additionally, the Petitioner was not entitled to reasonable assistance in obtaining a blood test as the Petitioner did not comply with the officer’s request to take the breath test.  Petitioner was not entitled to consult with an attorney before deciding whether to submit to the breath test as requested by the officer. Ellis v. Department of Highway Safety, No. 99-4595-CI-88A (Fla. 6th Cir. Ct. June 9, 2000).

Petitioner's oral motion for disqualification of hearing officer was procedurally improper and appropriately denied. Roane v. State of Fla. Dept. of Hghwy. Safety and Motor Vehicles, No. 95 803 CI (Fla. 6th Cir. Ct. Oct. 9, 1995).

Drivers must have both a manslaughter conviction and a separate DUI conviction before their licenses may be permanently revoked under Florida Statute 322.28(e). Ifland v. State of Fla. Dept. of Hghwy. Safety and Motor Vehicles, No. 95-3174 CI (Fla. 6th Cir. Ct. Nov. 1, 1995).

In a driver's license suspension hearing the offense report (DDL - 10) and the verification on a separate form (DDL - 11) are sufficient to meet the requirement of an affidavit stating the arresting officer's probable cause. Gallman v. Dept. of Highway, Safety and Motor Vehicles, No. 96-1701 CI (Fla. 6th Cir. Ct. May 20, 1996).


EMPLOYMENT

Petition for Writ of Certiorari to Review Quasi-Judicial Action of Agencies, Boards and Commissions of Local Government: EMPLOYMENT—Civil Service Board.  Petitioner's due process rights were not violated as his grievances with the City had been addressed prior to his termination from employment.  On remand, the new evidentiary hearing was properly conducted in 2013 as directed by the Second District Court of Appeal.  Further, dicta statements in a prior Circuit Court appellate opinion are not binding in this matter.  Petition for writ of certiorari denied.  Meaton v. City of St. Petersburg, No. 13-000020AP-88A (Fla. 6th Cir. App. Ct. May 22, 2014).

Petition for Writ of Certiorari to Review Quasi-Judicial Action of Agencies, Boards and Commissions of Local Government: EMPLOYMENT—Pensions—Board of Trustees for firefighters' pension trust fund did not depart from the essential requirements of law when it denied Petitioner's claim for disability pension benefits.  City ordinance provided that terminated, vested firefighters are not eligible for disability benefits, unless the termination was for medical reasons.  The ordinance did not violate Section 175.191, Fla. Stat. (2013).  Petition denied.  Thompson v. Board of Trustees of the City of Seminole Municipal Firefighters' Pension Trust Fund, No. 12-000044AP-88A (Fla. 6th Cir. App. Ct. January 30, 2014).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: EMPLOYMENT – Termination – Unified Personnel Board observed the essential requirements of law interpreting Pinellas County Personnel Rule XXIV (J), the "Standard Ranges of Disciplinary Actions."  Competent, substantial evidence supported the Board's action in upholding Petitioner's discharge from employment.  Petition denied.  Schneider v. Pinellas County, Florida, No. 10-000047AP-88A (Fla. 6th Cir. App. Ct. September 13, 2011).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: EMPLOYMENT – City was not preempted from enacting local legislation concerning firefighter pensions Florida Statutes § 175.351 – City code provision allowing for termination of firefighter disability benefits upon reemployment of a similar job did not conflict with Florida Statutes § 175.191.  Pension Board followed the essential requirements of law by discontinuing disability benefits in accordance with city code provision allowing for termination of benefits upon reemployment of a similar job.  Competent, substantial evidence supported finding that occupations of firefighter and deputy sheriff were similar and therefore Petitioner was no longer entitled to disability retirement.  Petition denied.  Stubblefield v. City of Clearwater, Florida, Pension Advisory Committee, No. 09-000044AP-88B (Fla. 6th Cir. App. Ct. October 29, 2010).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: EMPLOYMENT – disability pension – Board’s decision to deny service-connected disability pension was arbitrary and capricious where it failed to articulate any reasoning for its interpretation of code terms – Posed with two options from legal counsel, Board failed to observe the essential requirements of law when it unilaterally selected the one that operated to exclude Petitioner’s claims, notwithstanding the lack of Florida law supporting that interpretation – Insufficient competent evidence supported Board’s decision to deny benefits for what appears to be a service-connected disability under city Code.  Petition granted.  Horne v. City of St. Petersburg, No. 09-000010AP-88B (Fla. 6th Cir. App. Ct. July 22, 2010).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: EMPLOYMENT – Grievance Procedures – Petitioner denied due process when Pinellas County Director of Human Resources incorrectly concluded that Petitioner's written grievance was untimely filed.  Court held that in part interpretation and application of personnel rules by Director not within the range of permissible interpretations; therefore, not entitled to judicial deference.  Petition granted in part, denied in part.  Johnson v. Pinellas County, Florida, No. 09-000057AP-88B (Fla. 6th Cir. App. Ct. June 22, 2010).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: EMPLOYMENT.  Petitioner failed to establish that it was denied procedural due process where evidence established that petitioner had adequate notice of final discrimination hearing at which he failed to appear.  Petition denied.  Oar Enterprises, Inc. v. Booth, Appeal No. 08-000026AP-88B (Fla. 6th Cir. App. Ct. February 11, 2009).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: EMPLOYMENT – due process – competent substantial evidence – just cause - petitioner was a regular employee and could only be fired for just cause – City gave just cause reason for petitioner’s termination which was supported by competent substantial evidence in the record – interviews showed that petitioner was, in part, responsible for creating low morale at work and for making negative comments about supervisors – City did not deny petitioner due process by not affording her a full post-termination evidentiary hearing – City’s Code only required a post-termination evidentiary hearing if employee was not provided with a full hearing before being dismissed – record showed that petitioner was provided with a full hearing prior to her termination - Petition denied.  Hurley v. City of Gulfport, Appeal No. 07-0056AP-88A (Fla. 6th Cir. App. Ct. March 7, 2008).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: EMPLOYMENT – City departed from the essential requirements of law in conducting new hearing on Petitioner’s termination from the City – City’s termination of Petitioner had been quashed by this Court in a previous decision and upheld by the Second District Court of Appeal – City’s unlawful attempt to re-try termination case was tantamount to a “second bite at the apple” - Petition granted.  Meaton v. City of St. Petersburg, Appeal No. 06-0053AP-88B (Fla. 6th Cir. App. Ct. May 29, 2007).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: EMPLOYMENT – termination - recommended order of administrative law judge – exceptions – Board could reject the recommendation of the administrative law judge to reinstate officer only if the Board stated “with particularity” that the administrative law judge’s findings of fact were not based on competent substantial evidence – Board’s general finding that there was not competent substantial evidence to support reinstatement of officer was insufficient – Board, acting in an appellate capacity, erred in reweighing the evidence and testimony – administrative law judge was charged with weighing and resolving the conflicts in the evidence as to whether the terminated officer had refused to obey a lawful order - Petition granted. Collinsworth v. Pinellas County Sheriff’s Civil Service Board, Appeal No. 06-0010AP-88A (Fla. 6th Cir. App. Ct. Sept. 21, 2006). 

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: EMPLOYMENT – essential requirements of law - Florida Statutes, section 57.105 – Court cannot conclude that City’s interpretation that its Code precluded it from awarding fees and costs to Petitioner is a departure from the essential requirements of law – assuming City concluded that it did have authority to award fees and costs, Petitioner is precluded from seeking fees pursuant to 57.105 as Petitioner failed to follow the procedure set forth in subsection (4) – Petition denied.  Patterson  v. City of St. Petersburg, Appeal No. 05-0066AP-88A (Fla. 6th Cir. App. Ct. May 30, 2006).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: EMPLOYMENT – there is competent substantial evidence in the record to support City’s termination of employee for improper use of city’s computer system – although city’s computer policy had not been consistently or routinely enforced, as a level three systems programmer, employee was in a greater position of trust and responsibility than other city employees – while hearing officer erred in not admitting newspaper articles, error was not serious enough to result in a gross miscarriage of justice – Petition denied.  Kulig v. City of Clearwater, No. 04-0081AP-88A (Fla. 6th Cir. App. Ct. Jan. 5, 2006).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: EMPLOYMENT – death benefits – Board was charged with resolving inconsistencies in the City’s Code – Court must defer to City’s interpretation that the estate was entitled to death benefits as such conclusion is not unreasonable or clearly erroneous – Petition denied. Board of Trustees v. Estate of Margaret Venosh, No. 04-0054AP-88A (Fla. 6th Cir. App. Ct. April 11, 2005).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: EMPLOYMENT – City’s conclusion that Rules and Regulations, Rule # 25, was intended to be read disjunctively is not clearly erroneous - City had factual and legal just cause to terminate Smarowsky’s employment for off the job behavior – Smarowsky forced individual into his car at gunpoint and brandished gun at two citizens - Petition denied. Anthony Smarowsky v. City of St. Petersburg Council, No. 04-0003AP-88A (Fla. 6th Cir. App. Ct. Feb. 28, 2005).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Board of Local Government: EMPLOYMENT – certiorari review is limited to whether due process has been accorded, whether the essential requirements of law were observed and whether the order is supported by competent substantial evidence – whether Meaton was unlawfully terminated for filing grievances is outside certiorari review – Court cannot determine whether there were due process violations as there is no transcript nor any record evidence showing that Meaton objected to the procedure utilized by the Board in entering its Order – Order is not supported by competent substantial evidence – findings of fact do not support the legal conclusion that there was just cause to terminate Meaton - Petition granted. Brian Meaton v. City of St. Petersburg, No. 03-5025AP-88B (Fla. 6th Cir. App. Ct. Jan. 13, 2005).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Board of Local Government: EMPLOYMENT – City is unable to demonstrate that the Human Relations Board departed from the essential requirements of law in overturning the hearing officer’s Recommended Order to dismiss sexual harassment complaint – Board properly conducted a de novo review of the record in concluded that there was reasonable cause to believe that Henault was retaliated against – administrative proceedings were governed by Interlocal Agreement – any procedural irregularities were waived by the City – Petition denied.  City of Pinellas Park v. Henault, No. 03-5004CI-88A (Fla. 6th Cir. App. Ct. April 1, 2004).

City of New Port Richey’s Civil Service Board failed to observe the essential requirements of law in its review of the dismissal of a city employee.  Its review of the employee’s dismissal was limited to determining if there was “just cause” for the employee’s termination.  City of Clearwater v. Garretson, 355 So.2d 1248 (Fla. 2d DCA 1978).  The Board ignored those limitations and substituted its opinion for that of the City manager.  The decision of Civil Service Board is quashed.  City of New Port Richey vs. Leonard Reeves, No. 01-2164CA-P (Fla. 6th Cir. Ct. June 29, 2001.) 

The petitioner was not totally incapacitated for further performance of any employment within the police department because he could perform desk duty. Tucker v. City of St.Petersburg, No. 93 3076 CI (Fla. 6th Cir. Ct. Feb. 17, 1995).

As long as an employee can to do some of the duties required to be done in his job classification and the city is willing to permit the employee to perform limited duty with no reduction in pay, the employee is not totally disabled from doing the job and is not entitled to retirement. Id.

A back condition that places minor lifting restrictions on a person's ability to lift is not a "handicap." Nesselroad v. I.A.T.S.E., Local 552, No. 92-3431 CI (Fla. 6th Cir. Ct. March 31, 1995).

There was no substantial competent evidence to uphold the firing of a 15-year city employee because the documentation used to support the firing was hearsay and the city failed to lay an adequate foundation to establish a business records exception. Sanderfur v. City of St.Petersburg, No. 95-7343 CI (Fla. 6th Cir. Ct. June 11, 1996).

Although the rules of evidence need not be followed at a civil service hearing, a decision supported only by hearsay is not sustainable. Id.

A defendant domestic corporation could not be sued in an employment contract case in Pinellas County because there is no property in question, its sole place of business is in Hernando County, and the cause of action accrued in Hernando County. Southern Truss of Tampa, Inc. v. Hively, No. 95-4816 CI (Fla. 6th Cir. Ct. June 20, 1996).

The alleged breach of an employment contract occurred when the employer corporation did not pay its employee. Normally, the breach occurs where the payee resides, however, the corporation's unopposed affidavit states all payments were made in Hernando County, therefore, venue was proper in Hernando County. Id.

Petitioner was not entitled to disability benefits because he was no longer a "member" in the City of Largo "system" once he voluntarily gave up his job as a police officer to attend law school in Ohio. Bierdeman v. Board of Trustees of the City of Largo Municipal Police Officers' & Firefighters' Retirement Plan, No. 96-2650 CI (Fla. 6th Cir. Ct. Sept. 1996).


INSURANCE

County Civil Court: INSURANCE—Personal Injury Protection—A sedan-type police vehicle, used primarily for business purposes, is considered a private passenger motor vehicle under Florida’s PIP statute. Section 627.732(1)(a), Fla. Stat., unambiguously defines a private passenger vehicle as a “sedan,” without reference to the vehicle’s use. Order granting summary judgment reversed and remanded. City of St. Petersburg v. State Farm Mutual Automobile Ins. Co., No. 13000059AP-88B (Fla. 6th Cir. App. Ct. October 10, 2014).

County Civil Court: INSURANCE – Personal Injury Protection – Policy language stating that “any amounts payable under this coverage shall be subject to any and all limitations…including, but not limited to, all fee schedules,” was a clear election by Allstate of its intent to limit reimbursements in accordance with the PIP permissive fee schedule.  Reversed and remanded for further proceedings.  Allstate Ins. Co. v. Orthopedic Specialists, No. 13-000003AP-88B (Fla. 6th Cir. App. Ct. December 10, 2013).

County Civil Court: INSURANCE—Statutory Construction—Section 627.736(4)(b), (5)(b, c.1, d), Fla. Stat. (2004), governing Centers for Medicare and Medicaid Services (CMS) 1500 health insurance claim forms interpreted by the Third District Court of Appeal on second-tier certiorari review to only require form to be "substantially complete" and "substantially accurate" in order to place insurance company on notice of claim.  Reasoning of appellate court is sound and issues of material fact remain and was substantially complete and, if not, whether deficiency cured.  Order granting summary judgment and final judgment reversed and remanded for further proceedings.  Tarpon Total Health Care v. GEICO General Insurance Co.,No. 09-000043AP-88A (Fla. 6th Cir. App. Ct. December 9, 2010).

County Civil Court:  INSURANCE –  Trial court’s retroactive application of Florida Statutes § 627.736(10), effective January 1, 2008, was erroneous in light of the Florida Supreme Court’s supervening decision in Menendez v. Progressive Express Insurance Co., 35 So. 3d 873 (Fla. 2010), holding that the statutory presuit notice provision is substantive rather than procedural and therefore should not be given retroactive application.  Final Judgment reversed and remanded.  Melka v. Mercury Insurance Company of Florida, No. 09-000056AP-88B (Fla. 6th Cir. App. Ct. October 27, 2010).

County Civil Court:  INSURANCE - Personal injury protection - Cancellation of policy - Nonpayment of premium - Trial court erred in granting motion for summary judgment on issue of whether policy had lapsed due to nonpayment of premium where insurer failed to attach documents referenced in motion and motion was supported only by affidavit -- Further, where motion was filed one month after complaint was filed, there was not enough discovery completed or evidence available for trial court to determine whether there was genuine issue of material fact. Summary judgment reversed.  Lavonna Castellano, v. Mercury Insurance Company of Florida, Appeal No. 08-00033AP-88A (Fla. 6th Cir. App. Ct. April 30, 2009).

County Civil Court:  INSURANCE –– Summary Judgment -  worker’s compensation lien - insured’s suit was premature when PIP complaint was filed less than 30 days after service of the demand letter – summary judgment was improper when there was no evidence that insurer had been presented with evidence that there had been a settlement of the worker’s compensation lien against insured – trial court erred in considering unsworn statements made by counsel during summary judgment hearing  – Summary Final Judgment reversed.  Progressive Express Ins. Co. v. Cannino, Appeal No. 06-0006AP-88A (Fla. 6th Cir. App. Ct. July 17, 2007)

County Civil Court:  INSURANCE – summary judgment – assignment – “Patient Authorization for Direct Payment without Assignment” contained inconsistent language and created a doubt as to whether document was a valid assignment – summary judgment must be reversed as record showed disputed issues of material fact - Final Judgment reversed.  Smith v. State Farm Mutual Automobile Ins. Co., Appeal No. 06-0042AP-88B (Fla. 6th Cir. App. Ct. July 9, 2007). 

County Civil Court: INSURANCE – summary judgment – trial court erred in granting summary judgment in favor of insurer based on finding that there was a valid assignment of benefits from the insured to the medical provider – assignment was missing critical terms, including the name of the medical provider and the insurance company – summary judgment is improper when assignment lends itself to more than one interpretation - Final Judgment reversed.  Arnold v. State Farm Mutual Automobile Ins. Co., Appeal No. 06-0012AP-88A (Fla. 6th Cir. App. Ct. Feb. 7, 2007). 

County Civil Court: INSURANCE – summary judgment – trial court did not err in granting summary judgment in favor of insurer when insured failed to comply with the service requirements of Florida Statutes, section 627.736(11)(c) – unambiguous language of statute required that notice of suit be served on person designated by the insurer - Final Judgment affirmed.  Lefils v. Progressive Consumers Ins. Co., Appeal No. 06-0021AP-88B (Fla. 6th Cir. App. Ct. Jan. 9, 2007). 

County Civil Court: INSURANCE—PIP Benefits— section 627.736(11)(d) did not require the insurer to pay a 10% penalty on the interest paid on the overdue claim,—Final Judgment affirmed. S.M.S. v. Nationwide Mutual Fire Insurance Company, No. 512005AP14WS (Fla. 6th Cir. Ct. App. Div. July 20, 2006).  

County Civil Court: INSURANCE - Statutory Interest - trial court did not err in finding that insured was not entitled to statutory interest pursuant to Section 627.4265 although insurer tendered settlement amount 2 days after payment deadline - parties' settlement agreement stated that the settlement was contingent upon the receipt by Defense counsel of a general release and indemnification agreement, which Defense counsel ultimately provided - insured was not precluded from tendering his own release had he desired earlier payment - Final Judgment affirmed. Kerwin v. Auto-Owners Ins. Co., Appeal No. 05-0038AP-88B (Fla. 6th Cir. App. Ct. April 13, 2006).

County Civil Court: INSURANCE - Exhaustion of Benefits - English Rule for establishing priorities of assignees - an insured cannot maintain a cause of action against the insurer once benefits are exhausted unless certain criteria are met - in cases where bad faith is not alleged, insured must promptly notify the insurer that an amended claim will be forthcoming when insurer tenders partial payment of claim - insured must also refuse partial payment or escrow such funds until claim has been fully adjudicated - Summary Judgment affirmed. Nucci v. Progressive Express Ins. Co., No. 03-5049AP-88A (Fla. 6th Cir. App. Ct. May 18, 2006).

County Civil Court: INSURANCE—PIP Benefits— dump truck, owned by the City, was a commercial motor vehicle for purposes of providing plaintiff (State Farm) with PIP subrogation rights under Florida Statute 627.7405.  The ruling of the trial court is affirmed. City of New Port Richey v. State Farm Mutual Automobile Insurance Company, 51-2003-AP-9WS (Fla. 6th Cir. App. Ct. March 27, 2006).

County Civil Court: INSURANCE - Examination Under Oath (EUO) - summary judgment must be affirmed as it was undisputed that insured refused to submit to EUO, a condition precedent to filing suit - insured's failure to submit to an EUO is a willful and material breach of the insurance contract that precludes the insured from recovery under the policy - the medical provider has no greater rights than the insured against the insurer - Final Judgment affirmed. Hess Spinal and Medical Centers, Inc. v. Royal and Sunalliance Personal Ins. Co., Appeal No. 04-0066AP-88A (Fla. 6th Cir. App. Ct. March 15, 2006).

County Civil Court: INSURANCE – examination under oath – trial court erred in granting insurer summary judgment when EOU request was made after complaint was filed – insured entitled to pursue cause of action since insurer did not pay submitted claim within 30-day period – summary judgment reversed. Afield v. Progressive Express Ins. Co., Appeal No. 04-0045AP-88B (Fla. 6th Cir. App. Ct. Sept. 21, 2005).

County Civil Court: INSURANCE – trial court did not err in finding that scooter, modified in almost every regard, was a self-propelled vehicle exempt from personal injury protection benefits pursuant to Florida Statutes, § 627.736(4)(d)1. – appellate holding is limited to the specific facts of this case given the unique characteristics of the scooter – summary judgment affirmed. Cook v. Nationwide Mutual Fire Insurance Company, Appeal No. 05-0005AP-88A (Fla. 6th Cir. App. Ct. August 25, 2005).

County Civil Court: INSURANCE – insurer unable to show that trial court erred in denying insurer’s motion for summary judgment and motion for directed verdict – every possible inference must be viewed in favor of the non-moving party – insurer unable to demonstrate that there was a complete absence of evidence to support trial court’s award of damages, entered upon jury verdict – Final Judgment affirmed. State Farm Mutual Automobile Ins. Co. v. Hoggard, Appeal No. 03-5011AP-88A (Fla. 6th Cir. App. Ct. July 27, 2005).

County Civil Court: INSURANCE – summary judgment – whether there has been a misrepresentation, omission, concealment of fact, or incorrect statement by an insured must be determined by the trier of fact – ambiguity of the policy language precluded the entry of summary judgment – Final Summary Judgment reversed. Mapes v. Permanent General Assurance Co., Appeal No. 04-0055AP-88B (Fla. 6th Cir. App. Ct. June 25, 2005). 

County Civil Court: INSURANCE – summary judgment – trial court erred in entering summary judgment for insurer – insurance company never filed answer which necessarily created issues of fact – issue of fact remained as to whether insured had moved to Florida and notified her agent of move - Amended Final Judgment reversed and remanded. Hill v. State Farm Mutual, No. 03-5080AP-88A and 04-0038AP-88A (Fla. 6th Cir. App. Ct. April 11, 2005).

County Civil Court: INSURANCE—PIP Benefits—Section 222.18, Florida Statutes, does not protect PIP benefits that have been assigned—assignee does not qualify as creditor under § 222.18—Final Judgment affirmed. Hays v. Progressive Express Ins. Co., No. 03-5043AP-88A (Fla. 6th Cir. Ct. App. Div. Jan. 25, 2005).

County Civil Court:  INSURANCE – pre-suit requirements – complaint seeking personal injury protection benefits failed to show that conditions precedent for filing suit had been met – Florida Statutes, § 627.736(11)(2003) requires that an insurer must be provided with written notice of an intent to initiate litigation before a complaint can be filed – exhibits attached to the complaint failed to meet the requirements of a pre-suit demand letter  – order reversed.  Progressive Express Ins. Co. v. Broussard, Appeal No. 04-0035AP-88A (Fla. 6th Cir. App. Ct. Dec. 6, 2004).

County Civil Court:  INSURANCE – landlord/tenant - summary judgment is reviewed de novo – insurance company was not entitled to subrogation from negligent third party tenant – substance of lease agreement did not clearly shift the risk of fire loss to the tenant – lease agreement did not expressly require tenant to obtain fire insurance – Final Summary Judgment affirmed.  Chubb Ins. Co. v. CDS Sitework and Trucking, Inc., Appeal No. 03-5041AP-88A (Fla. 6th Cir. App. Ct. Dec. 2, 2004). 

County Civil Court:  INSURANCE –  Expert witness - sanctions – trial court erred as a matter of law in imposing sanctions without finding expert witness in contempt – award of sanctions was premature as expert witness was not given the opportunity to comply with the order compelling expert to present himself for deposition - Order Awarding Sanctions reversed.  Hochman v. Hartley Chiropractic Center, Appeal No. 03-5075AP-88A (Fla. 6th Cir. App. Ct. Dec. 1, 2004).

County Civil Court: INSURANCE – Attorney’s fees and costs – trial court erred in awarding attorney’s fees in PIP action when policy was issued and delivered in State of Minnesota – Florida Statutes, § 627.401(2) precludes award of attorney’s fees for policy issued out of Florida – trial court had authority to award costs – trial court abused its discretion in awarding costs for deposition that did not exist and that was canceled less than one business day before deposition due to illness of deposing attorney.  Final Judgment reversed, in part.  State Farm Mutual Automobile Ins. Co. v. Open MRI, No. 04-0008AP-88B (Fla. 6th Cir. App. Ct. Oct. 20, 2004). 

County Civil Court: INSURANCE – PIP benefits – trial court erred in eliminating required deductible as a penalty for the insurer’s late payment – statutory penalties for an insurer’s payment of an overdue claim are limited to interest and attorney’s fees - Final Judgment reversed.  Aries Insurance Company v. Cappillino, No. 01-7353CI-88B (Fla. 6th Cir. App. Ct. July 29, 2004). 

County Civil Court: INSURANCE – PIP benefits – effective date of section 627.736(5)(b)(5), MRI billing and payment practices, is June 19, 2001 – appellant is unable to show beyond all reasonable doubt that this statute conflicts with some designation provision of the constitution – Legislature had a legitimate purpose for providing a separate method for MRI billing and payment practices – Order affirmed.  Gainesville Open MRI Center, Inc. v. Allstate Insurance Company, No. 03-0980CI-88B (Fla. 6th Cir. App. Ct. April 6, 2004).

County Civil Court: INSURANCE – summary judgment – trial court erred in entering summary judgment for insurer based on policy language requiring insurer’s consent before assigning interest – provision of insurance which prohibits assignment except with insurer’s consent does not apply to prevent an assignment after loss – loss occurred at the time of the accident - Final Judgment reversed.  Turner Orthopaedic & Injury Center, Inc. v. Metropolitan Property and Casualty Ins. Co., No. 02-7260CI-88B (Fla. 6th Cir. App. Ct. March 30, 2004). 

The Court finds that the lower court committed reversible error in granting the insured’s motion for summary judgment as she failed to prove conclusively the nonexistence of any genuine issue of material fact.  The summary judgment must also be reversed as the motion was granted while there was a pending motion to dismiss.  Florida case law provides that unresolved motions directed to the pleadings prevent a case from being “at issue” and, therefore, precluded the entry of final summary judgment under the facts of this case.  Amex Assurance Company v. Benson, No. 01-5639-CI-88A (Fla. 6th Cir. Ct. April 22, 2002).

The Court must conduct a de novo review of the complaint when the lower court grants a motion to dismiss.  The Appellant, as the subrogee, could not maintain a cause of action for equitable subrogation against the Appellee when Irina Renee Plonka, the subrogor, had no rights or priorities against the Appellee for which the Appellant could acquire.  Southern Group Indemnity, Inc. v. Auto Owners Insurance Co., No. 01-5466-CI-88A (Fla. 6th Cir. Ct. Jan. 14, 2002).

The general rule in computing time is that the first day on which the initial act occurred is excluded and the last day, or corresponding future date, is included.  Further, any ambiguity in the time of day that the policy would lapse must be construed in favor of the insured.  Southern Group Indemnity, Inc. v. Ronald Bell, No. 01-2918-CI-88A (Fla. 6th Cir. Ct. September 4, 2001).

The appellate court applies the de novo standard of review when reviewing the trial court’s decision granting motion for summary judgment, which is based on legal, not factual issues. Southern Group Indemnity, Inc. v. Ronald Bell, No. 01-2918-CI-88A (Fla. 6th Cir. Ct. September 4, 2001).

Summary judgment was properly entered against the insured finding the insured had no standing where the insured clearly assigned her benefits to the health care provider.  It did not matter whether the assignment was conditional or not.  The insured would only have standing unless the health care provider pursued a claim against the insured.  Schroeder v. State Farm, No. 98-5353-CI-88B (Fla. 6th Cir. Ct. April 3, 2001).

The trial court properly found that an insurer can deny all future benefits as to all health care providers licensed under the same chapter as the IME examiner based on a single IME performed by a person who is also licensed under that chapter. Schroeder v. State Farm, No. 98-5353-CI-88B (Fla. 6th Cir. Ct. April 3, 2001).

An insurer did not breach its contract with the insured when it paid only part of the health care provider’s bill, claimed that the balance was unreasonable, and agreed to indemnify and hold the insured harmless from any claim by the provider.  There was no evidence of any damage to the insured whatsoever and under the terms of its promise, the insurer would be required to prevent any damage from occurring.  Thus, the insurer was properly entitled to judgment as a mater of law.  Dicks v. State Farm, No. 99-7736-CI-88B (Fla. 6th Cir. Ct. April 2, 2001).

Considered in pari materia, the plain meaning of Sections 627.848 and 627.7282(4) Florida Statutes provides insurers the ability to cancel on an earlier date than that provided in the three option letter so long as adequate notice is given and the insurance is not canceled less than fourteen days after the date of the three option letter.  Therefore, summary judgement against the insured/plaintiff whereby coverage by appellee/defendant was denied was properly granted.  Kersey v. Delta Insurance Co., No. 99-2404-CI (Fla. 6th Cir. Ct. June 30, 2000).

Although it was error to admit over objection the medical records into evidence with only an affidavit from the purported records custodian, the error was harmless because there was other substantial evidence which showed the insured's injuries were preexisting and unrelated to the accident. Sherman v. State Farm Mutual Auto. Ins. Co., No. 95-6861 CI (Fla. 6th Cir. Ct. August 5, 1996).

Although the insured's PIP benefits became exhausted during the trial court proceedings, summary judgment is not appropriate if at the time the suit is filed the insurer is in violation of the insurance statute requiring prompt payment of reasonable medical expenses. If insureds can prove a violation, then they may be entitled to statutory damages even if PIP is exhausted. Randel v. Allstate Ins. Co., No. 95-1043 CI (Fla. 6th Cir. Ct. March 25, 1996).


ISSUES

Evidence

County Civil Court: -ISSUES-EVIDENCE- despite the trial court's narrowing of the issues for trial, the court erroneously permitted the injection of an entirely new issue over the timely objection of the appellant- Trial court erroneously allowed appellees to introduce new evidence and then refused to allow the appellant's witness to testify as to that new evidence. Trial court reversed. Gulf Harbor Woodlands Assoc., Inc., v. Karmatz/Doolitte, Jr., 51-2005-AP-6&7WS (Fla. 6th Cir. App. Ct. April 5, 2006).


LANDLORD-TENANT/CONDO/MOBILE HOME

County Civil Court: LANDLORD/TENANT - Appellee did not act in contravention of the Florida Mobile Home Act when it changed the lot rental amount and the method by which it would charge for utility services.  Appellee provided written notice of the increase in lot rental amount 90 days prior to the increase, and the change in services was consistent with the representations in the amended prospectus - Judgment affirmed. Harris v. Fairhaven Mobile Home Park, LLC, No. 13-000067AP-88B (Fla. 6th Cir. App. Ct. September 23, 2014).

County Civil Court: LANDLORD/TENANT - Court RegistryCommercial tenant ordered to pay past-due rental payments into court registry by date and time certain.  Allegedly due to error by express shipping service, funds delivered to Clerk of Court one day late.  Trial court had no discretion to extend time for deposit of past due rental payments.  See § 83.232(5), Fla. Stat, (2012).  There is ministerial duty to provide statutory remedies.  Final judgment for possession to landlord affirmed.  St. Petersburg Pain & Urgent Care v. Sara Elizabeth Adamo, Trustee, No. 12-000039AP-88A (Fla. 6th Cir. App. Ct. April 2, 2013).

County Civil Court: LANDLORD/TENANT–Court Registry–Appellant/residential tenant ordered to pay past-due rental payments into court registry by date and time certain.  Trial court properly entered final judgment for possession to Appellee/landlord when rental payments not remitted to the Clerk of Court pursuant to Section 83.60(2), Fla. Stat. (2012).  Final judgment for possession to landlord affirmed.  Keith DeSanto v. Yuxiang Chen, No. 12-000023AP-88A (Fla. 6th Cir. App. Ct. November 13, 2013).

County Civil Court: LANDLORD/TENANT – Court Registry – Where Appellant had requisite notice and failed to deposit any rent payment into the court registry, any defense other than payment was waived.  Appellee was entitled to immediate default judgment for possession in its eviction based on violation of lease agreement.  Trial court’s order granting motion for default judgment for possession affirmed.  Harris v. Lucky Penny Andover Bay, LLC., No. 13-000049AP-88B (Fla. 6th Cir. App. Ct. August 22, 2013).

County Civil Court: LANDLORD/TENANT - Court Registry - Mobile home park/Landlord brought suit to evict mobile home owner/Tenant for violation of rules and regulations of park and sought "recovery of rent due", Section 723.063(2), Fla. Stat. (2010), Florida Mobile Home Act.  No violation of procedural due process when trial court required Tenant to deposit past-due rental payments into registry of the court prior to entertaining motion for rehearing/relief from judgment – Final Judgment and Order Lifting Stay affirmed.  Abramski v. Paradise Park Co-Op, Inc., No. 11-000017AP-88A (Fla. 6th Cir. App. Ct. November 22, 2011).

County Civil Court: LANDLORD/TENANT – Court Registry – Where Appellee had requisite notice and failed to deposit any rent payment into the court registry, any defense other than payment was waived.  Appellant was entitled to immediate default judgment for possession in its eviction based on violation of lease agreement.  Trial court’s order denying Appellant’s motion for default judgment reversed.  Pasco County Housing Authority v. Dena Marie Spencer, No. 2010-AP-000003-ES (Fla. 6th Cir. App. Ct. November 1, 2010).

County Civil Court:  LANDLORD/TENANT – Court Registry – Deposited funds in court registry.  Landlord’s acceptance of rent payments would operate as waiver of issues raised in an eviction action based on non-payment of rent.  The Florida Mobile Home Act, Florida Statutes § 723.003, requires a mobile home owner to pay into the registry of the court accrued rent in order to defend an action for rent or possession.  Failure of the mobile home owner to deposit such funds into the registry of the court constitutes an absolute waiver of the mobile home owner’s defenses other than payment, and the park owner is entitled to an immediate default pursuant - - Order affirmed.  Bradshaw v. Premier Management Group, LLC, No. 09-000008AP-88B (Fla. 6th Cir. App. Ct. April 22, 2010). 

County Civil Court: LANDLORD/TENANT – Court registry – Appellant still required to deposit funds in court registry even if her claim was that she had to pay property taxes in lieu of monthly rent.  Issues of newly discovered evidence first asserted on appeal were not preserved and did not constitute fundamental error.  Eviction judgment affirmed.  Carolyn Jones v. Myrtis Jones, No. 51-2008-CC-004613-WS (Fla. 6th Cir. Ct. Nov. 20, 2009). 

County Civil Court: LANDLORD/TENANT - Court Registry – where the defendant had a defense—other than payment—to a claim of unpaid rent, and the defendant had not deposited funds equal to the amount of rent alleged unpaid into the Court Registry under Chapter 83, Florida Statutes, it was improper to deny the landlord’s claim of unpaid rent.  Final judgment reversed.  Terry v. Howard, et al., Appeal No.07-000068AP-88B (Fla. 6th Cir.App.Ct. Oct. 7, 2008).

County Civil Court: LANDLORD/TENANT – Binding contract – whether a commercial property lease is a binding contract is subject to de novo review.  The trial court’s findings supported by competent substantial evidence will not be disturbed on appeal.  A contract that did not contain express wording that the addition of parking spaces was a condition precedent to the formation of the contract and that the defendant did not seek to rescind, was held binding.  Final judgment affirmed.  Hijaz v. Mikhail, Appeal No.07-0046AP-88A (Fla. 6th Cir.App.Ct. May 7, 2008).

County Civil Court:  LANDLORD/TENANT – deposited funds in court registry – record shows that tenant deposited unpaid rent into court registry – trial court erroneously entered eviction judgment when disputed funds had been lawfully deposited - order reversed.  Kelley v. Teachers Insurance and Annuity Association of America, Appeal No. 05-0092AP-88A (Fla. 6th Cir. App. Ct. Sept. 13, 2006).

County Civil Court: LANDLORD/TENANT – Landlord’s notice of termination of commercial lease for failure to pay rent and taxes was not deficient – Landlord’s inclusion of delinquent insurance premiums in notice under Florida Statutes, section 83.20(2), was not erroneous – inclusion of late fees does not render notice of default invalid under 83.20(2) as long as demand is not prejudicial - Dismissal reversed.  Clant, Inc. v. Specialty Restaurant Group, LLC, Appeal No. 05-0049AP-88B (Fla. 6th Cir. App. Ct. April 25, 2006). 

County Civil Court: LANDLORD/TENANT – demand notice – 5-day demand notice was legally sufficient as it set forth the exact amount due on the date it was due – final judgment affirmed. Seeds v. Kings Manor Estates, L.L.C., Appeal No. 03-5072AP-88B (Fla. 6th Cir. App. Ct. Sept. 21, 2005).

County Civil Court: LANDLORD/TENANT – Subsidized Housing – as a subsidized tenant of a HUD development, tenant is entitled to statutory rights and procedural safeguards – pursuant to Florida Statutes, § 83.56(5), landlord waived right to evict tenant on grounds stated in termination notice by accepting the tenant’s rent – no new grounds or incidents were alleged or proven -- Eviction Judgment reversed. Hall v. Jordan Park Development Partners, LTD., No. 03-5013AP-88A (Fla. 6th Cir. App. Ct. May 27, 2004). 

Appellant’s failed to present a transcript or any other record, which made it impossible for the Court to evaluate their concerns.  Therefore, the trial court’s decision to grant summary judgment was affirmed.  Furthermore, the trial court properly found that Appellant’s option agreement did not provide them with any legal or equitable right to the real property. Jablonsky v. Ertle, No. 99-003962 CI-88B (Fla. 6th Cir. Ct. April 20, 2001).

This Court, sitting in its appellate capacity, is required to notice and correct fundamental errors, even if not properly raised in the appeal.  Compliance with the statutory notice requirement is a condition precedent to an eviction action.  A timely Answer had been filed and so, as a matter of law, the Default Eviction should not have been entered.  The lower court abused its discretion by not setting aside the Default Eviction, as the longstanding policy in Florida is one of liberality toward vacating defaults.  The lower court erred in awarding damages without notice and hearing.  The lower court erred in entering a Writ of Garnishment based on the unauthorized entry of an award of damages.  The lower court did not err by not awarding attorney’s fees to attorney representing himself; the prevailing view of law is unfavorable to the award of attorney’s fees to attorneys acting pro se. Dunleavy v. Hatfield, No. 00-3495-CI-88A (Fla. 6th Cir. Ct. October 3, 2000).

Trial court committed reversible error when it failed to institute a jury trial at the appellant’s request.  An eviction is an action at law.  Therefore, the court had no discretion to ignore appellant’s request for a jury trial.  Kosta v. Johnson, No. 99-1189-CI (Fla. 6th Cir. Ct. July 24, 2000).

A mobile home park owner's material noncompliance with Florida Statute 723 is a complete defense to an eviction action against a mobile home owner. As a defense to an action for back rent, however, the statute only provides after consideration of all relevant issues the court shall enter judgment. In this case the trial judge considered other rents at similar mobile home parks, found the rent to be reasonable, and entered judgment for the park owner. Pender v. Imperial Oaks Development Corp., No. 94-2666 CI (Fla. 6th Cir. Ct. Nov. 6, 1995).

Service by publication is permissible only when personal service is impossible. A judgment entered without valid service of process is void and may be collaterally attacked at anytime. When the condo association knew the condo owner's actual residence in Canada, but failed to use personal service and used service by publication, the judgment was invalid. The service of process law applies to nonresident Canadian owners. Koins v. Sea Club of Indian Shores Condo. Assoc., Inc., No. 95-5260 CI (Fla. 6th Cir. Ct. April 22, 1996).

In a slander of title action a condo owner presented enough evidence to show special damages because he presented evidence of attorney's fees incurred as a result of having to take steps to try to clear his title. Ciega Village Homeowners Assoc., Inc. v. Adams, No. 95-4251 CI (Fla. 6th Cir. Ct. Aug. 19. 1996).

It is not an essential element of the tort of slander of title that another be induced not to deal with the person whose title is clouded. Id.


MORTGAGE FORECLOSURE

 


PROPERTY

County Civil Court: PROPERTY - Deed Restriction - Injunctive relief granted to Homeowners Association based on violation of the Covenants, Conditions, Restrictions, and Regulations restricting residents to only one dog, cat, or bird.  No requirement that irreparable harm be demonstrated to issue injunction to remedy violation of a restrictive covenant.  Appellant failed to prove estoppel due to "selective enforcement."  Judgment affirmed.  Mullins v. Gull Aire Village Association, Inc., No. 10-000045AP-88A (Fla. 6th Cir. App. Ct. August 31, 2011).

County Civil Court:  PROPERTY – easement by prescription – adverse possession – elements of hostility or adversity for the entire prescription period (20) years are essential elements of any Florida prescriptive easement claim- evidence shows that the appellants’ use of the disputed portions of the road was not “adverse” or “hostile.” for 20 years;  Final Judgment affirmed.  Quinn v. Assini, et al., No. 512007AP05ES ( Fla. 6th Cir. App. Ct. September 18, 2007).  

County Civil Court:  PROPERTY – easement by prescription – adverse possession – presumption of permissive use may be overcome by the land owner’s imputed knowledge that the party claiming the prescriptive right is using the subject property in a manner inconsistent with the land owner’s use – evidence supported trial court’s finding that driveway had been used since 1950 in a manner inconsistent with land owner’s use – Final Judgment affirmed.  Seckler, et. al. v. Johnson, et. al., Appeal No. 05-0084AP-88A (Fla. 6th Cir. App. Ct. Nov. 3, 2006). 


TORTS

The fact that a pot-bellied pig trespassed into a neighbor's ostrich pen and ultimately caused the death of the ostrich is insufficient to make the pig's owner liable for the damage. There must be shown some intentional act or some negligent act or omission on the part of the owner to recover damage caused by the wandering pig. Moore v. St. John, No. 95-3528 CA (Fla. 6th Cir. Ct. April 29, 1996).

Since appellant was an investor, and not someone who suffered loss as a result of a wholesale or retail transaction, Florida Statute 320.27(10)(1991) did not apply. Stickland v. Dealers Ins. Co., No. 94-209 CI (Fla. 6th Cir. Ct. Aug. 14, 1996).

In a slander of title action a condo owner presented enough evidence to show special damages because he presented evidence of attorney's fees incurred as a result of having to take steps to try to clear his title. Ciega Village Homeowners Assoc., Inc. v. Adams, No. 95-4251 CI (Fla. 6th Cir. Ct. Aug. 19. 1996).

It is not an essential element of the tort of slander of title that another be induced not to deal with the person whose title is clouded. Id.


TRAFFIC INFRACTIONS

County Traffic Court: TRAFFIC INFRACTIONS – The Defendant was adjudicated guilty for exceeding the posted speed limit by 50 m.p.h. and ordered, pursuant to Florida Statute §318.14, to pay a fine of $2,500.00.  Florida Statute §316.1926 only applies to persons who exceed the speed limit by more than 50 m.p.h.  Since the Defendant exceeded the speed limit by exactly 50 m.p.h., Section 316.1926 does not apply and, therefore, the increased penalties of Section 318.14 are inappropriate. Order for payment of fines, fees and costs is reversed and remanded for a new fine and sentence. Reed v. City of Clearwater, No. 13-00035APANO (Fla. 6th Cir. App. Ct. April 8, 2014).

County Traffic Court: TRAFFIC INFRACTIONS – When Appellant was clearly cited for speeding in a school zone and record contained no indication Appellant was confused or misled as to which statute he was alleged to have violated, any possible error in citation referencing statute was not grounds to dismiss citation or find Appellant was charged with violating nonexistent statute; when Appellant did not provide sufficient record for appellate review, appellate court was limited to errors of law apparent on face of record; even if deficient establishment of school zone was proven at traffic court hearing, of which there was no transcript for appellate review, such deficiencies would not be defense to citation of speeding in school zone and allow Appellant to disobey school zone and speed limit signs.  Order for payment of fines, fees and costs affirmed.  Schiffer v. State, CRC11-00074APANO (Fla. 6th Cir. App. Ct. May 9, 2012).

County Traffic Court: TRAFFIC INFRACTIONS – A decision in a nonjury case based on finding of fact from disputed evidence will not be set aside on review unless totally unsupported by competent, substantial evidence.  Trial court’s order for payment of fines, fees and costs entered after evidentiary hearing was supported by competent, substantial evidence.  Order for payment of fines, fees and costs affirmed.  Moore v. State, CRC11-00062APANO (Fla. 6th Cir. App. Ct. April 30, 2012).

County Traffic Court:  TRAFFIC INFRACTIONS – Motion to dismiss citation for violating section 316.3045(1), Florida Statutes, which prohibits a person operating or occupying a motor vehicle on a street or highway from amplifying the sound from a radio, tape player, or other mechanical soundmaking device such that the sound is plainly audible at a distance of 25 feet or more from the vehicle, should have been granted. Controlling precedent has held the “plainly audible” standard to be unconstitutionally vague and overbroad. Reversed and remanded.  Catalano v. State, CRC08-00054APANO (Fla. 6th Cir. App. Ct. February 4, 2010); Schermerhorn v. State, CRC08-00055APANO (Fla. 6th Cir. App. Ct. February 4, 2010).

County Traffic Court:  TRAFFIC INFRACTIONS - Defendant did not violate section 322.54(2)(d), Florida Statutes, which requires a person to possess a class B driver’s license to operate a motor vehicle with a gross vehicle weight rating of 30,000 lbs. Defendant was exempted because he fell within the exception provided in section 322.53(2)(e) for drivers operating straight trucks and transporting tangible personal property that was not for sale. William Patrick Greene v. State, CRC08-00025APANO (Fla. 6th Cir. App. Ct. May 20, 2009).

County Traffic Court:  TRAFFIC INFRACTIONS --- Record showed sufficient evidence to convict the defendant of speeding. Defendant’s claims without merit; he  was provided with a  new hearing before substitute judge; radar need not be excluded since the judge did not rely on the radar; and there was nothing in the record to support defendant’s claim that the judge was bias. Judgment and sentence affirmed. Isaak v. State, CRC 0606944CFAWS  (Fla. 6th Cir.App.Ct. September 5, 2008).

County Traffic Court:  TRAFFIC INFRACTIONS– Defendant’s action of driving through parking lot because of a road closed sign was not a violation of §316.074(2) because her actions were not to avoid obeying the traffic sign. Judgment and sentence reversed. Sandoz v. State, No. CRC 06-41 APANO (Fla. 6th Cir. App. Ct. November 30, 2007).

County Traffic Court:  TRAFFIC INFRACTIONS– UTC form was sufficient to inform defendant of charge against her when it had the box careless driving marked and indicated the statute violated. Failure to state exactly how the defendant was careless did not render the UTC vague. Order of Dismissal Reversed. State v. Asbell, No. CRC 05-63 APANO (Fla. 6th Cir. App. Ct. October 8, 2007).

County Traffic Court:  TRAFFIC INFRACTIONS --- Record showed sufficient evidence to convict the defendant of speeding, and hearing officer properly allowed the defendant to present his case. Judgment and sentence affirmed. Samson v. State, No. CRC 06-49 APANO, (Fla. 6th Cir.App.Ct. July 26, 2007).

County Traffic Court:  TRAFFIC INFRACTIONS– Evidence supported conviction for speeding. Defendant’s claim that large, flashing, yellow school zone sign that hung overhead across entire three-lane street failed to give him notice he was entering a school zone was without merit. Judgment and sentence affirmed. Borel v. State, No. CRC 06-80 APANO, (Fla. 6th Cir. App. Ct. June 25, 2007).

County Traffic Court:  TRAFFIC INFRACTIONS -  It was error for the trial court to, without objection, interrupt the defendant during his questioning of a police officer, engage in a conversation with the defendant, and not let the defendant complete his line of questioning. Judgment and sentence reversed. J. Ayoub v. State, No. CRC 06-18 APANO, (Fla. 6th Cir. App.Ct. December 4, 2006).

County Traffic Court:  TRAFFIC INFRACTIONS -  Trial court’s finding that the speed limit sign was visible despite some paint defacing it was supported by the record. Judgment and sentence affirmed. S. Ayoub v. State, No. CRC 06-17 APANO, (Fla. 6th Cir. App.Ct. November 17, 2006).

County Traffic Court:  TRAFFIC INFRACTIONS -  Defendants who were blowing their automobile horns in support of a protest violated §316.271(3). Constitutional arguments of free speech were insufficient to overcome statute both on its face and as applied. Judgment and sentence affirmed. Johnson v. State, No. CRC 05-96 APANO, (Fla. 6th Cir. App.Ct. November 9, 2006).

County Traffic Court:  TRAFFIC INFRACTIONS – Evidence supported conviction for improper display of a license tag where the tag on a motorcycle was attached vertically instead of horizontally. Tag not plainly visible and legible. Judgment and sentence affirmed. Montanez v. State, No. CRC 05-55 APANO, ( Fla. 6th Cir.App.Ct. May 25, 2006).

County Traffic Court: TRAFFIC INFRACTIONS – Record supported trial court’s determination that defendant was guilty-officer need not testify-sufficient that opposing driver testified. The trial court is justified in relying on eyewitness testimony. Judgment and sentence affirmed. Benson v. State, No. 0503433CFAES (Fla. 6th Cir. App. Ct. December 29, 2005).

County Traffic Court: TRAFFIC INFRACTIONS -trial court did error in charging appellant $30.00 for a "moving violation"; appellant's court costs should be reduced to $16.00- remainder of order affirmed since appellant failed to demonstrate any error in the record. Costs reduced; remainder of Order affirmed. Palmieri v. State, CRC0405630CFAES (Fla. 6th Cir. App. Ct. August 11, 2005).

County Traffic Court: TRAFFIC INFRACTIONS – Record supported trial court’s determination that defendant was guilty of careless driving. The defendant failed to establish that the trial court, in violation of the ADA, refused to provide her with adequate accommodations so that she could participate in her trial. – Judgment and sentence affirmed. Petrano v. State, No. CRC 03-13 APANO (Fla. 6th Cir. App. Ct. Aug. 23, 2004).

Petitions for Writs of Mandamus, Prohibition, Quo Warranto, and/or Habeas corpus: TRAFFIC INFRACTIONS - Blanket disqualification of Hearing Officer not permitted.- Petition for prohibition denied. Berry v. State, No. 03-46 APANO (Fla. 6th Cir. App. Ct. Jan. 12, 2004).

County Traffic Court: TRAFFIC INFRACTIONS – Specific subsection of statute not cited on Uniform Traffic Citation not a defense to an improper U-turn charge where the UTC noted the statute number violated, a box on the form was entitled Violation of traffic control device and “Posted, No U-turn” written in comments section. – Judgment affirmed. Jackson v. State, No. 03-23 APANO (Fla. 6th Cir. App.Ct. Jan. 9, 2004).

County Traffic Court:  TRAFFIC INFRACTIONS - The defendant’s argument that the maximum monetary penalty that the magistrate could have imposed pursuant to Sec. 318.18 Fla. Stat. is $70 was without merit.  The defendant elected to appear before the magistrate and the commission of an infraction was proven.  Therefore, the magistrate was empowered to impose not only a fine of $110.00, but a fine as high as $500.00.  Adams v. State, No. 01-07119 CFANO (Fla. 6th Cir. Ct. January 9, 2002).

County Traffic Court:  TRAFFIC INFRACTIONS - If the court provides for the recordation of traffic court proceedings, the burden of improper recording should fall on the government and not the individual defendant. To avoid such a result, the court must properly record the proceedings or advise defendants that they must make the recording; or if the court records the proceedings, then it must inform defendants that they cannot rely on it in any way to meet their appellate responsibility of providing a record. Von Spears v. State, No. CRC 00-5623 CFANO (Fla. 6th Cir.Ct. Feb. 21, 2001).


ZONING

Petition for Writ of Certiorari to Review Quasi-Judicial Action of Agencies, Boards and Commissions of Local Government: ZONING—No violation of due process because quasi-judicial proceedings are not controlled by strict rules of evidence and procedure.  Petitioner was provided fair notice and a real opportunity to be heard.  Competent, substantial evidence supports Special Magistrate's decision that Petitioner was operating non-profit business from R-2 zoned residence, without conditional use permit.  Essential requirements of law met.  Final Order affirmed.  Mary M. Barrett v. City of Gulfport, Code Enforcement, Appeal No. 12-000052AP-88A(Fla. 6th Cir. App. Ct. November 25, 2013).

Petition for Writ of Certiorari to Review Quasi-Judicial Action of Agencies, Boards and Commissions of Local Government: ZONING – County did not observe the essential requirements of law.  Earl and Judell Fow v. Pasco County, No. 2011-CA-000564-WS, (Fla. 6th Cir.App.Ct. February 7, 2012).

Petition for Writ of Certiorari to Review Quasi-Judicial Action - Agencies, Boards, and Commissions of Local Government:  ZONING - Conditional Use - The Florida Right to Farm Act, Fla. Stat. § 823.14(6), exempts from local regulation agricultural lands used for bona fide agricultural purposes, defined as “good faith commercial agricultural use of the land” in §193.461, Fla. Stat.  Substantial competent evidence supported City’s finding that Petitioner’s catfish farming operations were noncommercial and therefore not exempt from the City’s zoning regulations.  Petition denied.  McAlpin v. City of Tarpon Springs, No. 10-000030AP-88B (Fla. 6th Cir. App. Ct. June 2, 2011).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING — Petitioners’ due process rights were not at Port Richey City Council meeting to approve a subdivision application when Petitioners were already afforded due process at a prior Planning and Zoning proceeding.  Petitioners’ Motion for Rehearing or Clarification of order dismissing their Petition for Writ of Certiorari denied. Simpson, et al. v. City of Port Richey, No. 512007CA000624WS  (Fla. 6th Cir. App. Ct. March 29, 2011).

Petition for Writ of Certiorari to Review Quasi-Judicial Action of Agencies, Boards and Commissions of Local Government : ZONING- – jurisdiction – certiorari  review is not proper to review the issue of whether or not a development order is inconsistent with the comprehensive plan- sole action available to challenge the consistency of a development order is an action pursuant to Florida Statute 163.3215. Petition dismissed. Simpson, Et Al a v. City of Port Richey, No. 512007CA0624WS ((Fla. 6th Cir. App. Ct. October 15, 2008).

Petition for Writ of Certiorari to Review Quasi-Judicial Action of Agencies, Boards and Commissions of Local Government : ZONING- – jurisdiction – certiorari  review is not proper to review the issue of whether or not a development order is inconsistent with the comprehensive plan- sole action available to challenge the consistency of a development order is an action pursuant to Florida Statute 163.3215. Petition dismissed. Priest, Et Al a v. City of Port Richey, No. 512007CA2224WS ((Fla. 6th Cir. App. Ct. October 15, 2008).

Petition for Writ of Certiorari to Review Quasi-Judicial Action of Agencies, Boards and Commissions of Local Government : ZONING- – jurisdiction – certiorari  review is not proper to review the issue of whether or not a development order is inconsistent with the comprehensive plan- sole action available to challenge the consistency of a development order is an action pursuant to Florida Statute 163.3215. Petition dismissed. Priest, Et Al a v. City of Port Richey, No. 512007CA2226WS ((Fla. 6th Cir. App. Ct. October 15, 2008).

Petition for Writ of Certiorari to Review Quasi-Judicial Action of Agencies, Boards and Commissions of Local Government: ZONING—Essential Requirements of the Law—Where special exception is sought, petitioner bears only initial burden of showing it meets statutory criteria, and then burden shifts to opposing party to demonstrate that the special exception does not meet relevant standards—The burden then shifted to the County to demonstrate by competent substantial evidence that petitioner did not meet the criteria for approval, and, further, that approval of the Application would be adverse to the public interest-county did not meet its burden--petition for writ granted. Patterson v. Pasco County Board of County Commissioners, 51-2003-CA-003490WS (Fla. 6th Cir. App. Ct. November 21, 2004).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING –appellate court can only deny the writ or quash the order under review- the reviewing court does not have authority to take any action resulting in the entry of a judgment or orders on the merits or direct any particular judgment or order be entered-court may not quash only part of an order; that would in effect amount to a new order- Petition denied. Three H Learning Center, Inc., v. Pasco County, No. 2003-1099CA (Fla. 6th Cir. App. Ct. November 21, 2004).

Estoppel

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Estoppel – storage facility unlawfully converted in outdoor bar - City was not estopped from enforcing provisions of the Code to issue cease and desist order although outdoor bar had been used continuously for 10 years – Petitioners not precluded from seeking the appropriate site plan approval to resume operation of the outdoor bar  – Petition denied.  William Rodrigues v. City of St. Pete Beach, No. 03-5032AP-88A (Fla. 6th Cir. App. Ct. Jan. 25, 2005).

Findings of Fact

Board must set forth sufficiently detailed findings of fact for the appellate court to conduct a meaningful review when the Code implicitly mandates that findings of fact will be made. International Capital Properties, Inc. v. Board of County Commissioners of Pinellas County, No.  00-8590-CI-88A (Fla. 6th Cir. Ct. May 17, 2001).

Amendments to comprehensive land use plans are legislative decisions subject to the fairly debatable standard.  The Commission’s disapproval of the Petitioner’s small-scale amendment proposal was a legislative action and must be challenged in an original action in circuit court seeking either declaratory or injunctive relief.  However, because the Commission failed to enter findings of fact and an order, as mandated by its own Code, the Commission’s disapproval of the proposed amendment is defective and must be set aside. Racetrac Petroleum v. City of Largo, No. 00-2864-CI-88A (Fla. 6th Cir. Ct. November 8, 2000).

Fact that the Board of Adjustment did not make detailed findings of fact in denying a petition for variance is not a departure from the essential requirements of law. Tidewater Associates v. Pinellas County Board of Adjustment, No. 94-3825 CI (Fla. 6th Cir. Ct. March 27, 1995).

Procedural due process is not denied solely because the Board's decision did not contain specific findings of fact. Denis v. Board of Adjustment of Pinellas County, No. 95-73 CI (Fla. 6th Cir. Ct. April 21, 1995).

Board heard petitioner's evidence and determined that it was insufficient to meet the criteria for the granting of a variance. Dimmitt v. Pinellas County, No. 95-641 CI (Fla. 6th Cir. Ct. Nov. 8, 1995).

Explicit written findings are not necessary in special exception cases. Pinnacle Towers, Inc. v. Pinellas County Bd. of Adjustment, No. 96-4053 CI (Fla. 6th Cir. Ct. Sept. 19, 1996).

Implicit in the granting of a special exception is the finding that the applicant met all the criteria in the code. Id.

Procedure

Petitions for Writs of Mandamus, Prohibition, Quo Warranto, and/or Habeas Corpus: ZONING – Procedure – Writ of Mandamus is appropriate to require city to perform an act required by law.  The clear language of the Florida Land Use and Environmental Dispute Resolution Act, §70.51 Florida Statutes, requires that a city “must” act on a request for relief filed under the Act.  Petition granted.  Planes v. City of Tarpon Springs, No. CRC 08-000010AP-88B (Fla. 6th Cir.App.Ct. Oct. 28, 2008).

An equitable estoppel argument is not appropriate in a certiorari proceeding. It should be raised in a declaratory action or in a claim for injunctive relief. Baggs v. City of South Pasadena, No. 94 1074 CI (Fla. 6th Cir. Ct. Aug. 31, 1995).

City's previous use of its Code Enforcement Board to try and enforce its codes against appellant is not a violation of double jeopardy and does not preclude the city form trying to use alternate means -- particularly where the previous proceedings were for violations which occurred on a different date. Forty v. State, No. CRC 95-11250 CFANO (Fla. 6th Cir. Ct. Sept. 25, 1996).

Procedural Due Process

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING - Procedural Due Process – Substantial Competent Evidence-- the BOCC completely ignored its own Comprehensive Plan and unilaterally changed its Zoning Map without notice, without hearing, without evidence, and without following the essential requirements of law-. There is no legally valid record evidence whatsoever to support the Board’s decision in denying the rezoning . Petition granted. Metro Development Group, LLC v. Pasco County, No. 512006AP000007WS (Fla. 6th Cir. App. Ct. June 6, 2007).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING - Due Process –Substantial Competent Evidence- Petitioners were not denied due process by not requiring sworn testimony cross examination and by the repeated closing and reopening of the hearing; petitioner actually attended and presented arguments; petitioner never complained or objected that witnesses were not sworn during the rezoning hearings, nor did petitioner seek to cross examine any witnesses-there  is no requirement that the witnesses be sworn. Consistency with the comprehensive plan and the land development code were supported by competent substantial evidence. Petition denied. Zephyrhills Retail LLC, v. City of Zephyrhills, No. 512006CA1803ES, (Fla. 6th Cir. App. Ct. March 15, 2007).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING - Due Process - Petitioners were not denied due process by ex parte communications between City Commissioners and both the Petitioners and Wal-Mart - ex parte communications were disclosed at the beginning of the hearing and no objection was made - no due process violation for Wal-Mart's introduction of supplemental traffic study at the hearing - Petitioners did not request additional time to review the study - Essential Requirements of Law - Petitioners do not have standing to challenge DRI abandonment order pursuant to Section 380.07(2) - proposed use of site to build a Wal-Mart is expressly permitted by City's Code in a General Business zoning which allows for Retail Sales Establishments and Shopping Centers - Wal-Mart not required to seek conditional use approval for potential future development on lots not impacted by proposed Wal-Mart - Competent Substantial Evidence - record supports City's approval of site plan - Court cannot substitute its judgment for that of the City - No evidence of bias or prejudice by City's request of City Attorney to outline possible litigation issues that could arise from either granting or denying site plan - Petition denied. Concerned Citizens of Tarpon Springs, Inc. et. al. v. City of Tarpon Springs, No. 05-0014AP-88B (Fla. 6th Cir. App. Ct. March 22, 2006).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING - Procedural Due Process - Riparian Rights - Petitioner was not denied due process by the City's decision not to hold a public hearing in granting Petitioner's neighbor a permit to build a dock - Administrative approval was all that was required by the County's Code for dock permit - no record evidence that dock failed to meet Code criteria - Petitioner was not entitled to an unobstructed view of Mandalay Channel, west of Petitioner's property - Petition denied. Fernandez v. Board of County Commissioners of Pinellas County, No. 05-0042-88A (Fla. 6th Cir. App. Ct. March 20, 2006).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Agencies, Boards, and Commissions for Local Government: ZONING —Procedural Due Process—Quasi-judicial proceeding affords procedural due process if all parties are provided notice and an opportunity to be heard--Although public authority should not have allowed city official to speak after closing public hearing without according same opportunity to citizen, citizen’s due process rights were not violated because he had adequate notice, had submitted numerous documents to the authority in support of his position, and had ample opportunity to inform the authority of the issue on which he would have spoken. Ross v. Pinellas County Water & Navigation Control Auth., No. 03-5031AP-88B (Fla. 6th Cir. App. Ct. Apr. 14, 2005).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Agencies, Boards, and Commissions for Local Government: ZONING – Procedural due process – Although appellant was limited to contest constitutional violations of procedural due process, his arguments were not within the scope of his pleadings – Although court had granted opportunity to amend pleadings, appellant had not done so in timely manner and further opportunity was foreclosed – Due process argument concerning city’s stipulated agreement procedure did not pertain to facts of this case and was beyond scope of reply brief. Petition denied. Hamm Family Living Trust v. City of St. Petersburg, No. 02-3385-CI-88A (Fla. 6th Cir. App. Ct. May 28, 2003).

The Court finds that the Petitioners were accorded ample procedural due process as the CRA provided interested parties with public notice and a public hearing, although none was required for approval of the Proposed Development.  It is also clear from the record that the CRA did not “rubber stamp” this project.  Rather, the CRA made its decision after consideration of the testimony and evidence presented at the hearing, in addition to evaluating the criteria set forth in the IRP. Lawson v. City of St. Petersburg, No. 01-4170-CI-88A (Fla. 6th Cir. Ct. April 9, 2002).

The petitioner received procedural due process because there was notice and an opportunity to be heard. The petitioner's attorney did not speak at the hearing because of his own actions, not because the board prevented him from speaking. Sukeforth v. Schwartz, No. 94-4510 CI (Fla. 6th Cir. Ct. Feb. 10, 1995).

The local government body's adoption of a proposed order prepared by its staff before the hearing is not a violation of procedural due process. Gulfcoast Pinellas Development Corp. v. Pinellas County Water and Navigation Control Authority, No. 93-479 CI (Fla. 6th Cir. Ct. March 27, 1995).

Fact that time limitations were placed on applicants' presentation did not deprive them of procedural process. Dou-Han, Inc. v. City of St.Petersburg, No. 94-1032 CI (Fla. 6th Cir. Ct. March 20, 1996).

Record shows the applicants' suggested questions to the city council so that the council could ask the witnesses the questions. The applicants did not object to this procedure and the record shows the council asked the questions, therefore the applicants cannot complain about the lack of direct cross-examination of the witnesses. Id.

It is not an improper ex parte communication depriving the applicants of due process for one council member to have acquired personal knowledge of the general circumstances near the property in question where the member did not convey in any meaningful way the information to the rest of the council and it did not become a feature of the proceedings. Id.

Petitioner was not denied procedural due process because it did not receive a copy of the staff report until the day of the hearing. The report was available to the public and the record does not show the petitioner asked for it. P.B. Realty, Inc. v. Board of County Commissioners of Pinellas County, No. 95-6981 CI (Fla. 6th Cir. Ct. May 29, 1996).

Site Plan Application

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING– Site plan application— The City did not depart from the essential requirements of the law by treating an application as a modification to an existing plan rather than as a new application. There was competent substantial evidence to support the Commission’s finding that site plan was compliant with Land Development Regulations.  Ch. 2011-139, s. 79, Laws of Florida, which provides that any local government development order with an expiration date between January 1, 2012 and January 1, 2014 is extended and renewed for a period of two years after its previously scheduled date of expiration, trumps the City’s Code provision for only one extension, therefore, granting an extension was not a departure from the essential requirements of the law. Petition denied. Belmont v. City of St. Petersburg, No. 12-000030AP-88B (Fla. 6th Cir. App. Ct. February 5, 2013).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government:  ZONING – Site Plan Application – Petitioner did not have standing to challenge review of Board of County Commissioners’ decision to uphold approval of a site plan and variance request application, even if he did, his arguments lacked merit – Petition dismissed.  Steve Byle v. Pasco County Board of County Commissioners, Appeal No. 51-2006-CA-001821-WS/P (Fla. 6th Cir. App. Ct. December 14, 2009).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government:  ZONING – Site Plan Application – Petitioners were afforded procedural due process despite time limitation on their argument to the Town Commission.  Town complied with essential requirements of law by interpreting Town Code to calculate accessory use based on net, rather than gross, square footage where the Code is silent on the issue.  Competent substantial evidence supported Town Commission’s findings and decisions to grant variances.  Petition denied.  Robert Swinehart v. Town of Belleair, Appeal No. 08-000024-AP-88B (Fla. 6th Cir. App. Ct. May 28, 2009).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Site Plan Application – Petitioner failed to establish that, by City’s denial of site plan for development of mixed use hotel and condominium building near downtown, it was not accorded adequate due process, that the essential requirements of law were ignored, or that the decision is not supported by competent substantial evidence.  Amended Petition for writ of certiorari denied.  Fuel Investment & Development II, LLC v. City of St. Petersburg, Appeal No. 07-000066AP-88B (Fla. 6th Cir. App. Ct. February 6, 2009).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Site Plan Application – competent substantial evidence supported City Commission’s decision to deny site plan based on its finding that the proposed crematoria would be incompatible with the surrounding neighborhood - Petition denied.  SCI Funeral Services of Florida, Inc.  v. City of Largo, Appeal No. 06-0081AP-88B (Fla. 6th Cir. App. Ct. January 15, 2008).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Site Plan Application – City did not depart from the essential requirements of law in denying site plan application that did not meet Code criteria – City was not estopped from denying final site plan at final review hearing based upon previous approval of preliminary site plan – City could consider whether site plan was compatible with the surrounding community at the final review hearing based upon new interpretation of term “compatibility” provided by City’s attorney - Petition denied.  Dunedin Marina View, LLC v. City of Dunedin, Appeal No. 06-0058AP-88B (Fla. 6th Cir. App. Ct. April 17, 2007).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Site Plan Application – testimony of neighbors – as site plan application met all Code criteria, burden shifted to the City to demonstrate that the application did not meet Code standards and was adverse to the public interest – City departed from essential requirements of law in denying application solely upon neighbors’ concerns about dust, noise, and the possibility of business creating carcinogenic material – no competent substantial evidence in the record to support these concerns – Petition granted.  SAC Chic, LLC v. City of Pinellas Park, Appeal No. 06-0059AP-88A (Fla. 6th Cir. App. Ct. April 13, 2007).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Site Plan Application – testimony of neighbors – as site plan application met all Code criteria, burden shifted to the City to demonstrate that the application did not meet Code standards and was adverse to the public interest – City departed from essential requirements of law in denying application solely upon neighbors’ concerns about increase in traffic and need for traffic signal - three experts testified that traffic signal was not needed – City could not rely on lay opinion of neighbors on matter that required technical expertise – Petition granted.  Bay Arbor Place, LLC  v. City of Oldsmar, Appeal No. 06-0022AP-88B (Fla. 6th Cir. App. Ct. Jan. 18, 2007).

Special Exceptions

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Special Exception - Because the Board of Adjustment relied solely on lay opinion testimony concerning potential traffic increases and other general impacts to the neighborhood to make its decision, the Board’s denial of Petitioner’s application was not based on competent, substantial evidence. Petition for Writ of Certiorari granted. Hakim v. Pinellas County, Florida, No. 11-000054AP-88B (Fla. 6th Cir.App.Ct. June 27, 2012).

Petition for Writ of Certiorari to Review Quasi-Judicial Action of Agencies, Boards and Commissions of Local Government: ZONING—Essential Requirements of the Law—Where special exception is sought, petitioner bears only initial burden of showing it meets statutory criteria, and then burden shifts to opposing party to demonstrate that the special exception does not meet relevant standards—development board failed to follow essential requirements of law where it placed ultimate burden on petitioner to show that property could not be developed without the requested use deviation—petition for writ granted.  CEPCOT Corp. v. City of Clearwater, No. 03-5083AP-88B (Fla. 6th Cir. Ct. App. Div. January 19, 2005).

Petition for Writ of Certiorari to Review Quasi-Judicial Action - Agencies, Boards, and Commissions of Local Government:  ZONING - special exception – petitioner met its initial burden of showing that its application met the statutory criteria for granting such exceptions – staff reports are strong evidence supporting approval – City did not meet its burden that petitioner did not meet code criteria and that approval of the application would be adverse to the public interest – lay opinions, unsupported by competent facts, do not constitute competent substantial evidence.  Petition granted.  Jones v. City of Tarpon Springs, No. 02-9757CI-88A (Fla. 6th Cir. App. Ct. Jan. 15, 2004).

Standard of Review

Petition for Writ of Certiorari to Review Quasi-Judicial Action of Agencies, Boards and Commissions of Local Government: ZONING – Standard of review – The applicable standard of review concerning a zoning board’s denial of a special exception applications was whether the zoning board afforded procedural due process, whether the board’s process met the essential requirements of the law, and whether competent, substantial evidence supported the board’s findings.  Where the zoning board staff found that the petitioner’s application for a special exception met all criteria for granting an exception, and the transcript of the hearing before the board did not reflect to the contrary, competent, substantial evidence did not support the board’s denial of the special exception.  Where no board member made any finding of a deficiency, the zoning board’s proceedings did not meet the essential requirements of the law.  Petition granted.  Sunset Bay Properties, LLC. v. City of Treasure Island, Appeal No. 07-000043AP-88B (Fla. 6th Cir.App.Ct. Aug. 26, 2008).

Petition for Writ of Certiorari denied because the petitioner was afforded procedural due process, the essential requirements of law were met, and there was substantial competent evidence to support the Board's denial of the petitioner's request. Bettmar Inc., v. City of Dunedin, No. 94-4590 CI (Fla. 6th Cir. Ct. June 7, 1995).

When a party is entitled to seek review in circuit court from an administrative action, the circuit court must determine whether procedural due process was accorded, whether the essential requirements of law were met, and whether the decision was supported by substantial competent evidence. In this case all were met. Melchert v. City of St.Petersburg, No. 95-5022 CI (Fla. 6th Cir. Ct. March 4, 1996).

In reviewing the denial of a variance from St.Petersburg's adult-use ordinance the standard of review is whether or not the petitioner was afforded procedural due process, the essential requirements of law were followed, and there was substantial competent evidence presented to support the decision. 3405, Inc. v. City of St.Petersburg, No. 95-2441 CI (Fla. 6th Cir. Ct. May 22, 1996).

An appellate court cannot reweigh the evidence or re-evaluate the commission's resolution of conflicting evidence. Grogan v. City of Clearwater, No. 95-7210 CI (Fla. 6th Cir. Ct. July 11, 1996).

Standard of review in a special exception case is whether or not the petitioner was afforded procedural due process; whether or not the essential requirements of law were followed; and whether or not there was substantial competent evidence to support the decision. Pinnacle Towers, Inc. v. Pinellas County Bd. of Adjustment, No. 96-4053 CI (Fla. 6th Cir. Ct. Sept. 19, 1996).

Standing

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government:  ZONING – standing – Standing for judicial review of agency administrative action is more limited than standing to participate in the administrative process.  Under the Administrative Procedures Act, standing for judicial review of final agency action is reserved for parties who are “adversely affected by final agency action”, which the party must prove “injury in fact of sufficient immediacy.”  Standing here hinged on the subject of the administrative hearing.  Where the subject of the hearing was to determine whether the city complied with its permitting authority, an adjacent property owner who only alleged the possibility of future harm to his party did not have standing to seek judicial review.  Petition denied. Sowa v. Pinellas County Construction Licensing Board, Appeal No.08-0023AP-88A (Fla. 6th Cir.App.Ct. July 20, 2009).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government:  ZONING – standing – Petitioners did not present any evidence or testimony to demonstrate that rezoning would affect their property rights and therefore lacked standing. Petitioner who lived 3/4 mile away and did not show how zoning affected her to a greater degree than the general public, lacked standing.  Petition dismissed.  Deborah Schechner, Mary Ellen Keller & Henry Keller v. City of St. Pete Beach & Dophin Village Partners, LLC 07-0014AP-88A ( Fla. 6th Cir.App.Ct. May 19, 2008).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Standing – neighbors lacked standing to appeal decision of the City to grant adjoining landowner’s variance request for an after-the-fact permit – neighbors, who did not testify at variance hearing, failed to show how de minimus variance of 3.5 feet adversely affected property interests - Petition dismissed.  Urban v. City of St. Pete Beach, Appeal No. 06-0066AP-88B (Fla. 6th Cir. App. Ct. May 29, 2007).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Standing – although petitioner may have an interest in the project as a nearby homeowner, he has not established a definite interest exceeding the general interest in community good- petitioner has not established that the approval that is the subject of this review will cause a negative impact to his property.  Petition dismissed. Byle v. Pasco County, No. 512006CA1821WS (Fla. 6th Cir. App. Ct. Feb. 23, 2007).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Standing – Competent substantial evidence – redevelopment plan – interpretation of City’s Code – neighbors in close proximity to proposed redevelopment had standing to challenge City’s decision – Court must defer to City’s interpretation and application of the term “perimeter” since it was not contrary to law – City’s decision to allow for a 48-unit credit for demolished nursing home was clearly erroneous when developer failed to seek approval of its redevelopment application prior to demolition as the City’s Code specifically required – no competent substantial evidence to support City’s finding that there were 293 existing dwelling units – developer’s own figures put the number of existing dwelling units at 241 – City departed from the essential requirements of law when it failed to enter written findings as required by the City’s Code – Petition granted. Bayou Bonita Neighborhood, Inc., et. al.  v. City of St. Petersburg, et. al., Appeal No. 05-0083AP-88B (Fla. 6th Cir. App. Ct. Dec.  6, 2006).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Standing – homeowner who resides several blocks away from subject residence lacked standing to appeal City’s decision to approve location of garage doors – homeowner did not establish that he was adversely affected by the approval - Petition dismissed. Steven Lange v. City of St. Petersburg Council, No. 04-0042AP-88A (Fla. 6th Cir. App. Ct. Feb. 16, 2005).

Substantial Competent Evidence

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING — Competent Substantial Evidence — Petitioners’ due process rights were violated when Port Richey City Council’s approved the rezoning of two properties without competent, substantial evidence that it was consistent the comprehensive plan and the zoning regulations. Arguments that the development order was inconsistent with the comprehensive plan are not properly addressed in a Petition for Writ of Certiorari, but in an action pursuant to Florida Statute 163.3215.  Petition granted in part, denied in part. Priest, Et Al. v. City of Port Richey, No. 512007CA2224WS and 512007CA2226WS (Fla. 6th Cir. App. Ct. April 27, 2010).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Essential Requirements of the Law – Misapplication of correct law does not amount to departure from essential requirements of the law; instead, there must be application of incorrect law – Development Board did not apply incorrect law – in reviewing substantial competent evidence, court is limited to examining evidence in support of Board’s decision – even though evidence existed contrary to Board’s decision, substantial competent evidence also existed to support the Board’s decision – Petition denied. Williams v. City of Clearwater, No. 09-000029AP-88A (Fla. 6th Cir. App. Ct. February 26, 2010).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING - Competent Substantial Evidence - Mobile Home Park - City Council correctly determined, as a preliminary matter, whether adequate and suitable replacement housing existed for mobile home owners pursuant to Section 723.083 before considering the actual zoning application - burden was on rezoning applicant to demonstrate that replacement housing existed - Court cannot substitute its judgment for that of the City Council finding that adequate and suitable replacement housing was not shown to be available - Petition denied. Wieker Enterprises, Inc. v. City of St. Petersburg, No. 05-0054-88A (Fla. 6th Cir. App. Ct. April 4, 2006).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING - Competent Substantial Evidence - form order entered by the Board finding Petitioner in violation of City's Code for not removing two commercial signs is not supported by the record - the City concedes that the understanding of the parties was that the entire matter would come back before the Board in thirty days to allow the Petitioner to further research whether a permit had ever been issued for signs - Petition granted. Bryan Media, Inc. v. City of St. Petersburg, No. 04-0091AP-88A (Fla. 6th Cir. App. Ct. January 27, 2006).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Agencies, Boards, and Commissions for Local Government: ZONING —Substantial Competent Evidence—In determining whether authority’s decision was supported by substantial, competent evidence, court cannot reweigh conflicting evidence—record established that, despite conflicting evidence, authority’s decision was based upon substantial, competent evidence. Ross v. Pinellas County Water & Navigation Control Auth., No. 03-5031AP-88B (Fla. 6th Cir. App. Ct. Apr. 14, 2005).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Competent Substantial evidence  – competent substantial evidence in the record to support the hearing officer’s conclusion that structure is unsafe/unfit for human habitation – Petitioner failed to present evidence that the structure could be rehabilitated – court will not reweigh the evidence or substitute its opinion for that of the hearing officer – Petition denied.  Johnson v. City of St. Petersburg, No. 04-0026AP-88B (Fla. 6th Cir. App. Ct. Dec. 20, 2004). 

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Substantial Competent Evidence – City is not required to specify which Code violations existed at the time of the lien certification – Court lacked jurisdiction to review earlier order finding Code violations existing and subjecting appellant to the fine where order was not appealed – Appellant did not provide evidence to the City that the Code violations had been corrected – Order Imposing Lien affirmed.  Allums v. City of St. Petersburg, No. 02-9141CI-88B (Fla. 6th Cir. App. Ct. March 29, 2004). 

Extensive sworn testimony of area residents and an expert was property considered by the Board and was competent substantial evidence to support the Board’s rejection of the application. International Capital Properties, Inc. v. Board of County Commissioners of Pinellas County, No.  00-8590-CI-88A (Fla. 6th Cir. Ct. May 17, 2001).

A staff report and testimony of the staff's expert may be substantial competent evidence to support a decision of a quasi-judicial board. Gulfcoast Pinellas Development Corp. v. Pinellas County Water and Navigation Control Authority, No. 93-479 CI (Fla. 6th Cir. Ct. March 27, 1995).

The Board's denial of a variance request was not supported by substantial competent evidence because the sole reason for denial was based upon the mistaken belief that the public and emergency vehicles had a right to use the petitioner's private property for access. Gleneagles Condominium Assoc. No. 1 of Palm Harbor, Inc. v. Pinellas County Board of Adjustment, No. 94-3766 CI (Fla. 6th Cir. Ct. April 4, 1995).

Although the petitioner's proposed re-zoning would be consistent with the comprehensive plan, the city's decision to deny the requested re-zoning from residential to commercial was supported by substantial competent evidence. Davis v. City of Safety Harbor, No. 95-3912 CI (Fla. 6th Cir. Ct. Feb. 26, 1996).

The city's decision to deny the petitioner's request to re-zone the property from single-family to multi-family was supported by substantial competent evidence in the record. The facts show the decision was not arbitrary, discriminatory or unreasonable. Budenos v. City of Oldsmar, No. 95 213 CI (Fla. Cir. Ct. March 11, 1996).

If the requested variance were consistent with the comprehensive plan, that would not by itself entitled the applicants to a variance. Dou-Han, Inc. v. City of St.Petersburg, No. 94-1032 CI (Fla. 6th Cir. Ct. March 20, 1996).

There exists in the record substantial competent evidence to show the petitioner did not meet all the criteria necessary to deserve a variance. Specifically, the petitioner failed to show there were sufficient barriers between the adult-use business and the neighboring residential areas. 3405, Inc. v. City of St.Petersburg, No. 95-2441 CI (Fla. 6th Cir. Ct. May 22, 1996).

Although the city staff recommended approval, the council is not bound by the report. Id.

Petitioner's request for re-zoning was denied because it was inconsistent with the Countywide Comprehensive Plan. P.B. Realty, Inc. v. Board of County Commissioners of Pinellas County, No. 95-6981 CI (Fla. 6th Cir. Ct. May 29, 1996).

The correct evidentiary standard to be used in reviewing cases brought under Florida Statute 893.138 is clear and convincing evidence. Mastrangelo v. City of St.Petersburg, No. 94-691 CI (Fla. 6th Cir. Ct. June 16, 1995).

Although the city's staff and zoning board recommended approval, the commission is not bound by either decision. There was substantial competent evidence in the record to support the commission's decision that the petitioner failed to meet all the criteria to obtain the zoning change. Grogan v. City of Clearwater, No. 95-7210 CI (Fla. 6th Cir. Ct. July 11, 1996).

Substantive

The code enforcement board's finding that the homeowners had violated Section 78.01 of the Residential Planned Development District, City of Tarpon Springs Land Development Code, by operating "tourist homes" in a residential area (renting out their homes for relatively short periods of time to different people) was upheld. Bowler et al. v. City of Tarpon Springs, No. 95-2113 CI (Fla. 6th Cir. Ct. January 31, 1996).

"Tourist home" provision of the code is not unconstitutional because the city was using its police power when it adopted a zoning ordinance to preserve the single family residential character of the neighborhood. Id.

Florida Statute 893.138, which permits local governments to close down property, does not require that more than two crimes be committed in each motel room. It is sufficient that greater than two crimes were committed at the property site. Mastrangelo v. City of St.Petersburg, No. 94-691 CI (Fla. 6th Cir. Ct. June 16, 1996).

Variances

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Variances – City of Madeira Beach, Florida, Community Development Department did not depart from the essential requirements of law when it granted a variance.  Competent, substantial evidence supports the Special Magistrate's decision.  Circuit Court in its appellate capacity cannot consider arguments made by Petitioner in the Petition and Reply that were not presented to the Special Magistrate at the variance hearing.  Petition denied.  Trott v. City of Madeira Beach, No. 13-000044AP-88A (Fla. 6th Cir. App. Ct. April 16, 2014).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Variances – City of St. Pete Beach Board of Adjustment did not depart from the essential requirements of law when it granted a set-back variance.  Competent, substantial evidence supports the Board's decision.  Petition denied. Ruttencutter v. City of St. Pete Beach, Fla., No. 11-000063AP-88A(Fla. 6th Cir. App. Ct. March 11, 2013)

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Variances – Planning and Zoning Board did not depart from the essential requirements of law in its denial of variance.  Even though the proposed variance would bring residence more closely into compliance with land use regulations and above the base flood elevation, Petitioners failed to demonstrate that denial of the variance deprived them of reasonable use of the property.  Board afforded Petitioners due process, and their decision is supported by competent substantial evidence.  Petition denied; motion denied as moot.  Morrison v. City of Treasure Island, Florida, No. 11-000005AP-88B (Fla. 6th Cir. App. Ct. August 11, 2011).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Variances – County Board of Adjustment did not depart from the essential requirements of law when it denied variance for an existing carport erected without a permit.  No showing of unnecessary hardship, rather there was a "self-created" hardship; no showing of equitable estoppel.  Petition denied.  Joseph M. Medwick, as Trustee of the Joseph M. Medwick Revocable Trust v. Pinellas County Board of Adjustment, No. 09-000035AP-88A(Fla. 6th Cir. App. Ct. October 27, 2010).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Variances – The City of Port Richey departed from the essential requirements of law by granting two variance requests that were not supported by substantial, competent evidence. Granted.  Christensen, et al. v. City of Port Richey, No. 08-CA-8225-WS, (Fla. 6th Cir.App.Ct. October 1, 2010).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Variances – County Board of Adjustment followed the essential requirements of law in determining whether probable cause exists to modify or revoke a previously granted variance.  The Code requires the Board to consider nine criteria but not to reweigh or make a finding for each criterion.  Board’s decision not to modify or revoke the variance was supported by substantial competent evidence.  Petition denied.  Schumacher v. Pinellas County, Appeal No. 09-000002AP-88B (Fla. 6th Cir. App. Ct. August 18, 2009).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – variance – standing – essential requirements of law – statutory construction - neighbor has standing to appeal City’s issuance of construction permit to renovate apartment complex – neighbor lives adjacent to the subject property, located in a special flood plain, and had attempted to intervene several times in proceedings due to unauthorized construction – City failed to follow it’s Code requirements in issuing construction permit for the repair of property that was destroyed in a 2004 hurricane – record established that property suffered a “total loss” and that damage was “catastrophic” – property owner failed to timely obtain building permit to repair apartments as a grandfathered, nonconforming use – with loss of grandfathered status, apartments could only be repaired with either a variance or in adherence to current Code requirements  - City’s decision to issue building permit, including adding an additional 200 feet to property, was a departure from the essential requirements of law - Petition granted.  Sowa v. City of St. Pete Beach, Appeal No. 06-0087AP-88A (Fla. 6th Cir. App. Ct. Feb. 28, 2008).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Variances – City did not depart from the essential requirements of law in denying variance request by Petitioner to install two tie poles at end of dock – variance request did not meet Code criteria - Petition denied.  Ritchie v. City of Treasure Island, Appeal No. 06-0051AP-88A (Fla. 6th Cir. App. Ct. April 13, 2007).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Variance – code criteria – property owner failed to meet each code criteria for granting of a variance – the subject property did not have conditions or circumstances peculiar to the land – a literal enforcement of the City’s Code would not deprive the property owner of reasonable use of his property – while subject lot was small, such was common in that area – a variance is not appropriate to cure a hardship that was apparent when property was purchased – Petition granted. Pletcher  v. City of St. Pete Beach, Appeal No. 05-0078AP-88A (Fla. 6th Cir. App. Ct. Sept. 7, 2006). 

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Variance – flexible development application – stringent variance criteria did not apply to flexible development application, as permitted by City’s Code, that sought reductions in minimum setbacks and increase in height of building – Petitioners must challenge consistency of Development Order with local comprehensive plan as an original action in circuit court – record supported City’s conclusion that development application complied with City’s Code - Court cannot substitute its judgment for that of the City – Petition denied.  Weiland  v. City of Clearwater, Appeal No. 05-0095AP-88B (Fla. 6th Cir. App. Ct. August 7, 2006)

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING - Variance - undisputed evidence was that Petitioner's handicapped-accessible vehicle was 7.5 feet in height, 6 inches over the allowable height for passenger or commercial vehicles to be parked on a residential lot - Court must defer to City's interpretation that the Petitioner's van is a prohibited commercial vehicle and that Petitioner did not meet the exceptional and unique hardship requirements for a variance - Court cannot substitute its judgment for that of the City - Petition denied. Rigo v. City of St. Petersburg, No. 05-0065AP-88B (Fla. 6th Cir. App. Ct. April 25, 2006).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING - Variance - Standing - as a neighbor within 300 feet of subject property, Petitioner had standing to challenge Board's decision - Board, acting in an appellate capacity, departed from the essential requirements of law in failing to follow its Code and for vacating the decision of the City Manager finding that new, more stringent, Code applied to developer's application for development - nothing in the record to show that City Manager erred in entering his decision that developer's application was not complete at the time the new Code went into effect - Petition granted. Manning v. Development Review Board, No. 05-0014AP-88B (Fla. 6th Cir. App. Ct. April 19, 2006).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Variances - City erred in finding that subject property was a “nightclub”, a non-permitted use, instead of a permitted “bar” – to interpret the meaning of “bar” to exclude those establishments that hold a 4-COP license would render useless, contrary to Florida law, the expressly permitted use of the sale of alcoholic beverages – Petition granted. Nicklaus Investment Enterprises, Inc. v. City of St. Pete Beach, No. 04-0065AP-88B (Fla. 6th Cir. App. Ct. July 8, 2005).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Variance – Petitioners had the burden to establish variance request met code criteria - competent substantial evidence in the record to support denial of variance request – Petitioners failed to establish that they would suffer a hardship without the variance – Petition denied. Andrade v. City of St. Pete Beach, No. 04-0044AP-88A (Fla. 6th Cir. App. Ct. April 11, 2005).

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: VARIANCES – Martin did not establish before the Board that its variance request met all the criteria – Martin failed to present evidence that it had attempted to correct code violations on the property or to demonstrate that the housing is safe - Petition denied. Richard Martin Management Co. Inc. v. City of St. Petersburg, No. 04-0022AP-88A (Fla. 6th Cir. App. Ct. March 9, 2005). 

Petition for Writ of Certiorari to Review Quasi-Judicial Action: Agencies, Boards, and Commissions of Local Government: ZONING – Variances  – Petitioner is unable to demonstrate that it met all the code conditions for granting of a variance – Certiorari relief must be denied as the Board of County Commissioners lawfully denied variance request based on criteria set forth in county’s code – decision denying variance is supported by competent substantial evidence in the record – Petition denied.  D.A. Holt v. Pinellas County, No. 03-3760AP-88B (Fla. 6th Cir. App. Ct. Sept. 23, 2004). 

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Agencies, Boards, and Commissions for Local Government: ZONING – Variances - Additional family members occupying one of the single-family units in a duplex resulted in a self-created hardship for which no relief had to be granted - Although the fact of a structure’s nonconformity required a variance before permits for renovation could be pulled, that did not mean a variance had to be automatically granted, especially, since type of renovation contemplated in this case, which increased the degree of nonconformity, was disfavored.- Petition denied. Piotti v. City of Madeira Beach, No. 02-1847-CI-88A (Fla. 6th Cir. App. Ct. March 4, 2003).

Petition for Writ of Certiorari to Review Quasi-Judicial Action, Agencies, Boards, and Commissions of Local Government: ZONING – variances -  Competent, substantial evidence supported the Board’s decision to deny the granting of five variances –  Proposal to tear down the existing structures and replace them with a new “less nonconforming” structure that did not meet zoning requirements - Degree of nonconformity of current structure irrelevant to the decision to grant or deny the variances where structure was to be demolished. - Written findings of fact are not required of an administrative board or agency making quasi-judicial decisions so long as it can be shown that there was competent substantial evidence presented to the board to support its ruling. Petition denied. Saxon v. City of Madeira Beach, No. 02-1087 CI-88A (Fla. 6th Cir. App. Dec. 6, 2002).