Effective January 1, 2008, opinions are posted when issued by the Court and may be subject to modification.
APPEALS RELEASED IN JANUARY 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).
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 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).
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).
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).
APPEALS RELEASED IN DECEMBER 2011
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 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 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).
APPEALS RELEASED IN NOVEMBER 2011
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: 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).
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).
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).
APPEALS RELEASED IN OCTOBER 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).
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 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 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 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).
APPEALS RELEASED IN SEPTEMBER 2011
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).
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, 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).
APPEALS RELEASED IN AUGUST 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).
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).
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).
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).
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).
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, 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).
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 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).
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 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 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 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 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).
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: 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 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 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).
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).
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).
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 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).
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).
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 — 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: 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: 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 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).
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
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).
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
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
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
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).
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
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).
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 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
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).
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 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).
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).
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).
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 (
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 – 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).
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
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).
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 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.
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
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).
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
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
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 (
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).
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).
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).
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
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).
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).
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.
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 (
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
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
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).
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).
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 (
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).
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).
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 (
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
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).
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
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).
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
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).
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
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).
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.
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
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).
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 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).
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 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.
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
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).
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).
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.
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).
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 (
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 (
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
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 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
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).
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).
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
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
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 – 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
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
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).
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
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).
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
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
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).
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
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
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
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
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
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
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
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
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.
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).
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 ).
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).
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 LAW – Jury 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- 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 – 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
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
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
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
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).
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
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).
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.
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 – 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
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. 6thCounty 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
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).
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).
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 – 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. 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 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).
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.
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).
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 – Sentencing –Statutory 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
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
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).
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
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).
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
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
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
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
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
County Criminal Court:
CRIMINAL LAW – Traffic 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
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).
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).
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).