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

APPEALS RELEASED IN MAY 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. 6^th Cir.App.Ct. May 31, 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 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 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. 6^th Cir.App.Ct. May 27, 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. 6^th Cir.App.Ct. May 27, 2008).

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).

APPEALS RELEASED IN APRIL 2008

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 --- 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---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. 6^th Cir. App. Ct. April 18, 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. 4^th DCA 2007). Order denying defendant’s motion to withdraw plea affirmed. Lang v. State, No. CRC 07-39 APANO ( Fla. 6^th Cir. App. Ct. April 18, 2008).

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. 6^th Cir. App. Ct. April 18, 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. 6^th 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 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).

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 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 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. 6^th Cir. App. Ct. April 3, 2008).

APPEALS RELEASED IN MARCH 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. 6^th Cir.App.Ct. March 31, 2008).

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. 6^th Cir. App. Ct. March 31, 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. 6^th Cir. App.Ct. March 28, 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).

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). 

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).

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. 6^th Cir.App.Ct. March 18, 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. 6^th Cir.App.Ct. March 11, 2008).

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. 6^th Cir.App.Ct. March 7, 2008).

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).

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. 6^th Cir. App. Ct. March 3, 2008).

APPEALS RELEASED IN FEBRUARY 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. 6^th Cir.App.Ct. Feb. 29, 2008).

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: 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).

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 --- 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 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. 6^th Cir. App. Ct. Feb. 25, 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. 6^th Cir. App. Ct. Feb. 21, 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: 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 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 – 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 – 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 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 – 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 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).

APPEALS RELEASED IN JANUARY 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).

County Criminal Court:  CRIMINAL 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).

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: 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).

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).

APPEALS RELEASED IN DECEMBER 2007

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 – 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 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:  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:  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 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 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).

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 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).

APPEALS RELEASED IN NOVEMBER 2007

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). 

Criminal County 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 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). 

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).

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 - 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).

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).

ADMINISTRATIVE

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 – 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). 

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. 6^th 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. 6^th 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

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).

ANNEXATION

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

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. 6^th 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. 6^th 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. 6^th 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. 6^th 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

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 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. 6^th Cir. Ct. April 3, 2001).

Preservation of Error

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. 6^th 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. 6^th 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 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. 6^th 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. 6^th 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. 6^th 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. 6^th 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 – 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. 6^th 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. 6^th 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. 6^th 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