Sunday, November 21, 2010

Wild boar with juniper berries, cranberry orange sauce and legal stuffings

Criminal law -- Sentencing -- Motion to file a supplemental brief to assert, for the first time, a challenge to defendant's sentence under Blakely v. Washington should be denied where defendant waived the right to file supplemental brief attacking his sentence by failing to raise issue in his initial brief, and court can discern no miscarriage of justice that would result on account of defendant's inability to raise proposed Blakely issue -- Long-standing rule in Eleventh Circuit that issues not properly raised in initial brief are deemed abandoned applies in context of a Blakely-based claim sought to be raised by way of supplemental briefing
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GARLAND GEORGE CURTIS, Defendant-Appellant. 11th Circuit.

Criminal law -- Sentencing -- Unopposed motion for continuance of resentencing hearing pending review in United States Supreme Court of decision of United States Court of Appeals which obligates trial court to impose 30-year sentence rather than 17-and-a-half-year sentence initially imposed for offense of production of child pornography for transportation into this country -- Motion granted -- Response to order of Court of Appeals to detail sentencing factors considered by trial court in sentencing defendant in order to assist Supreme Court in determining whether petition for writ of certiorari ought to be granted
UNITED STATES OF AMERICA vs. WILLIAM IREY. U.S. District Court, Middle District of Florida, Orlando Division.

Criminal law -- All writs petition seeking order directing Florida Department of Law Enforcement to either upload DNA profile from semen and secretions found at crime scene into Combined DNA Index System and Florida statewide DNA database for comparison, or perform a one-time manual keyboard search comparing DNA profile to profiles in CODIS and Florida DNA database -- Petition is not procedurally barred -- Jurisdiction relinquished to circuit court to hold evidentiary hearing on specified issues
PAUL CHRISTOPHER HILDWIN, Petitioner(s), vs. STATE OF FLORIDA, Respondent(s) Supreme Court of Florida.

Criminal law -- Murder -- Attempted murder -- Armed robbery -- Death penalty -- Evidence -- Prior bad acts -- No abuse of discretion in permitting testimony of victims' daughter, who was present at scene of crimes, to testify that she had prior relationship with defendant which was built around drugs and that the two bought from and sold drugs to one another -- Evidence was not similar fact Williams rule evidence, but dissimilar fact evidence which established relevant context leading up to charged crimes -- Probative value was not substantially outweighed by prejudicial effect -- Jury question -- No error in trial court's response to guilt-phase jury's question seeking clarification of conscious intent element of “principal” jury instruction -- Sentencing -- No abuse of discretion in denying motion for mistrial based on prosecutor's isolated reference to World Trade Center attack during penalty-phase closing argument, as any error was harmless in light of evidence of aggravation presented against defendant -- Victim impact evidence -- Claim that victim impact evidence was excessive and inflammatory was not preserved for review, and defendant failed to establish fundamental error or due process violation as result of admission of victim impact evidence in this case -- Aggravating circumstances -- No error in finding that murder was committed to avoid arrest, that murder was cold, calculated and premeditated, and that murder was heinous, atrocious or cruel -- Challenge to constitutionality of Florida's capital sentencing scheme based on Apprendi v. New Jersey and Ring v. Arizona is without merit -- Florida's capital sentencing scheme does not violate federal constitutional rights to due process and fair jury trial -- Death penalty is proportionate
RENALDO DEVON McGIRTH, Appellant, v. STATE OF FLORIDA, Appellee. Supreme Court of Florida.

Criminal law -- Sentencing -- Probation revocation -- Claim of scoresheet error on initial Criminal Punishment Code sentencing scoresheet utilized when defendant is placed on probation may be raised for first time after revocation of probation -- If claim of error is timely raised in rule 3.800(b)(2) motion during appeal from revocation of probation, claim is preserved for review in that appeal
JAMIE LEE TASKER, Petitioner, v. STATE OF FLORIDA, Respondent. Supreme Court of Florida.

Rules of Juvenile Procedure -- Amendment -- Detention hearing -- Presence of counsel
IN RE: AMENDMENTS TO FLORIDA RULE OF JUVENILE PROCEDURE 8.010. Supreme Court of Florida.

Manuel v. State ,(Fla.App. 2 Dist.)
Criminal Justice - Defendant's sentences of life in prison without parole for armed robbery and attempted murder were unconstitutional.
Defendant's sentences of life in prison without the possibility of parole for the non-homicide offenses of robbery with a firearm and attempted first- degree murder with a firearm were unconstitutional as a violation of the Eighth Amendment's prohibition of cruel and unusual punishment. Defendant was 13 years old at the time the offenses were committed, and juveniles could not be sentenced to life in prison without parole for non-homicide offenses.

This decision may not yet be released for publication.

Fessenden v. State ,(Fla.App. 2 Dist.)
Criminal Justice - Defendant whose convictions were reversed because his acts were not criminal was not a "wrongfully incarcerated person."
The Florida District Court of Appeal's earlier legal opinion that the acts committed by defendant did not constitute grand theft or violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), which resulted in defendant's convictions of those offenses being vacated, did not constitute "exonerating evidence" establishing the defendant's actual innocence of the offenses. Therefore, as a matter of apparent first impression, the District Court of Appeal held that the defendant was not a "wrongfully incarcerated person" entitled to compensation under the Victims of Wrongful Incarceration Compensation Act. The error that resulted in defendant's convictions was one of law, rather than one of fact.

This decision may not yet be released for publication.
R.I. v. Department of Children And Families ,(Fla.App. 4 Dist.)
Government - Agency was not required to pay any fees for establishment of special needs pooled trust for developmentally disabled teenager.
In a matter of first impression, the District Court of Appeal of Florida has held that the Department of Children and Families, as trustee of a master trust into which a developmentally disabled teenager's Social Security disability benefits were paid, was not required to pay any administrative fees or costs for the establishment of a special needs pooled trust for the teenager, who had attained the age of 18. The Court held that the Department was authorized by statute to expend the teenager's trust assets for his benefit, including the payment of fees to establish a special needs pooled trust for the teenager. The Court explained that the teenager's joining the special needs pooled trust allowed him to conserve his assets and ensure continued eligibility for public assistance. Thus, paying the $500 administrative fee to join the special needs pooled trust was an appropriate expenditure of trust funds.

This decision may not yet be released for publication.

Civil rights -- Action against deputy sheriff alleging use of excessive force when plaintiff was brought to county jail and deliberate indifference to plaintiff's serious medical needs while plaintiff was detained in jail -- District court properly denied defendant's motion for summary judgment and qualified immunity on excessive force claim -- District court erred in denying defendant's motion for summary judgment on claim of deliberate indifference to serious medical needs where plaintiff received reasonably prompt medical attention and received continuous medical care from jail nurse until she was taken to hospital -- Even if a constitutional violation based on deliberate indifference was shown, defendant is entitled to qualified immunity -- No preexisting law clearly established that an approximately two-to-five minute delay of medical care is a constitutional violation
MARCELLA POURMOGHANI-ESFAHANI, Plaintiff-Appellee, v. DAVID GEE, Sheriff of Hillsborough County, individually, SHANNA MARSH, Hillsborough County Deputy, individually, Defendants-Appellants, JOHN DOES, Numbers 1 through 7, individually, et al., Defendants. 11th Circuit.

Insurance -- Breach of contract action by insured against insurer to determine whether insured suffered covered damages under property insurance policy -- Evidence -- Insurer's motion in limine to prevent insured from presenting evidence of insurer's bad faith or claims handling practices -- Motion granted -- Evidence of insurer's claims handling procedures is irrelevant to determination of coverage and damages -- Insurer's motion in limine to preclude insured from introducing evidence of other claims against insurer including affirmative defenses used by insurer in other cases -- Motion granted, but insured will be permitted to cross-examine insurer's experts about their involvement in other cases, and insurer will be permitted to question insured's witnesses about their involvement in other cases
ROYAL BAHAMIAN ASSOCIATION, INC., Plaintiff, v. QBE INSURANCE CORPORATION, Defendant. U.S. District Court, Southern District of Florida.

Insurance -- Disability -- Evidence -- Where the only damages to which plaintiff would be entitled if he prevailed in his breach of contract claim against disability insurer are benefits that accrued through the date suit was filed, and the sole issue is whether plaintiff can meet his burden of establishing that he was totally disabled, evidence regarding defendant's bad faith and claims handling and business practices, evidence of plaintiff's emotional distress during claims handling process, evidence regarding consequential damages, and evidence of plaintiff's post-suit mental condition is all irrelevant and inadmissible -- Defendant's motion in limine to exclude such evidence granted
LOWELL D. KENNEDY, M.D., Plaintiff, v. PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY, a Tennessee Corporation, Defendant. U.S. District Court, Southern District of Florida.

Insurance -- Insured's claims against property insurer related to damage to insured property allegedly caused by hurricane -- Evidence -- Hearsay -- Insured's motion in limine to bar insurer from introducing examination under oath testimony of insured's corporate representative -- Motion denied -- Examination under oath testimony is an admission by a party opponent through its designated corporate representative, and is deemed to be not hearsay -- Testimony during examination under oath is not admissible as former testimony so long as witness remains available to testify at trial
ROYAL BAHAMIAN ASSOCIATION, INC., Plaintiff, v. QBE INSURANCE CORPORATION, Defendant. U.S. District Court, Southern District of Florida.

Torts -- Maritime law -- Jurisdiction -- Arbitration -- Action by Nicaraguan seaman alleging claims for Jones Act negligence, unseaworthiness, failure to provide maintenance and cure, and failure to provide adequate medical care was properly removed from state court to federal court pursuant to Convention on Recognition and Enforcement of Foreign Arbitral Awards -- Because a party may remove a matter under the Convention at any time prior to trial, removal was timely -- There is no merit to plaintiff's contention that employment contract containing arbitration provision is void as against public policy because he would be required to arbitrate his claims in Nicaragua applying Bahamian law, and will be unable to pursue his Jones Act claims -- A Jones Act claim is subject to arbitration under the Convention -- There is no merit to plaintiff's contention that he may avoid arbitration agreement because the costs of arbitration are prohibitive
HAROLD LEONEL PINEDA LINDO, Plaintiff, vs. NCL (BAHAMAS) LTD. d/b/a NCL, Defendant. U.S. District Court, Southern District of Florida, Miami Division.

Wrongful death -- Torts -- Railroads -- Action against railroad for deaths and personal injury of occupants of automobile which was struck by train at railroad crossing where warning lights were flashing, but often flashed when no train was coming -- Jury instructions -- False activation of warning system -- Trial court properly instructed jury that a false activation is one caused by a condition that requires repair -- Court's instruction accurately defined “false activation” under federal law and accurately stated that plaintiff had not presented evidence of an activation matching that definition -- Court did not err in instructing jury not to consider train's speed because the train was in compliance with federal law -- Installation and maintenance of warning light system at crossing -- Taking all instructions together, jury was properly instructed that railroad could not be held liable for decision about which warning device to put in place or continue in place, but it could be held liable for any failure to repair an existing warning light -- Evidence -- Trial court did not err in excluding evidence of another train-car collision that had occurred at the crossing ten years before on the grounds that the prior collision was too remote in time and that the conditions were too dissimilar -- Further, court allowed evidence of another collision which occurred much closer in time and under similar circumstances -- Court did not err in allowing defendant to perform a demonstration of a train headlight for the jury
MARY MARGARET WRIGHT, Administrator of the Estate of Kevin Francis Wright, Jr., JILLIAN ALYCE WRIGHT, b.a.t. Mary Margaret Wright, Plaintiff-Consolidated-Plaintiff-Appellant, v. CSX TRANSPORTATION, INC., Defendant-Appellee. 11th Circuit.

Liens -- Judgment lien -- The re-recording of a certified copy of a judgment lien after the expiration of the original judgment lien imposes a new lien on real property held by the judgment debtor -- County court properly authorized levy on real property owned by party who purchased property from judgment debtor after re-recording of judgment
SUN GLOW CONSTRUCTION, INC., Appellant, v. CYPRESS RECOVERY CORPORATION, Appellee. 5th District.

Torts -- Medical malpractice -- Hospitals -- Presuit requirements -- Corroborating expert medical opinion -- Although she had not been a hospital floor nurse for the preceding three years, the curriculum vitae and affidavits of nurse established that she had actively engaged in the practice of nursing and nurse consulting in the preceding three years, and that she was qualified to offer opinion regarding the prevailing professional standards of care for hospital nurses and an opinion on causation for purposes of presuit notice -- Trial court did not depart from essential requirements of law in denying defendant's motion to dismiss for failure to comply with presuit requirements
HOLMES REGIONAL MEDICAL CENTER, INC., Petitioner, v. DAVID WIRTH and RENEE WIRTH, Respondents. 5th District.

Administrative law -- Child support -- Administrative law judge did not have jurisdiction to require child's mother, on whose behalf Department of Revenue had initiated a proceeding under section 409.2563, Florida Statutes, to pay child support to child's maternal grandmother with whom child had been living -- ALJ lacked jurisdiction to order payments from “the parent from whom support is not being sought” -- ALJ did have jurisdiction to order that child's father, the parent from whom support is being sought, to pay child support to child's maternal grandmother
DEPARTMENT OF REVENUE, obo WENDY R. SMITH, Appellant, v. EPHRAIM SELLES, Appellee. 1st District.

Administrative law -- Rule challenge -- Administrative law judge erred in exercising jurisdiction to entertain a challenge to a rule as being an invalid exercise of delegated legislative authority where the rule had expired by repeal of its enabling statute
OFFICE OF INSURANCE REGULATION and FINANCIAL SERVICES COMMISSION, Appellants, v. SERVICE INSURANCE COMPANY, Appellee. 1st District.

Contracts -- Real property sale -- Rescission -- Interstate Land Sales Act -- Failure to provide purchasers with property report in advance of signing of contract -- No error in allowing purchasers to rescind contracts to purchase homes -- Exemption from ILSA's requirements applicable when contract obligates seller to erect building on property within two years did not apply where contract limited purchasers' remedy of specific performance by requiring purchasers to perform two conditions precedent before suing for specific performance -- Although circuit court incorrectly found that restrictions on remedy of specific performance were “invalid and unenforceable,” it correctly found that contract's savings clause did not apply -- Conditions themselves were valid and enforceable, and the only effect of including them in contract was to disqualify contract as being exempt from ILSA's requirements -- Error to calculate prejudgment interest from date purchasers demanded rescission, rather than from date purchasers paid their deposit
KOLTER SIGNATURE HOMES, INC., a foreign corporation, and VILLAGER REALTY LTD., L.P., a foreign limited partnership, Appellants, v. GLENN G. SHENTON and PAMELA A. SHENTON, husband and wife, and MAURICIO MARTINEZ and ELIRAN ASSULIN, tenants in common, Appellees. 4th District.

Estates -- Wills -- Where testator's will provided for a bequest of the entire estate to her brother and her brother-in-law in equal shares, and provided that if either of them did not survive testator, the share of the deceased shall be given to their surviving spouse, and testator's brother and his spouse both predeceased testator, testator's brother-in-law was entitled to the entire estate because the bequest to the brother and his wife lapsed -- Trial court erred in awarding half of estate to the children of testator's brother and his wife
JESUS LORENZO, Appellant, vs. ISABEL MEDINA AND JOSE ANTONIO MEDINA, Appellees. 3rd District.

Mortgages -- Foreclosure -- Default judgment -- No error in summarily denying relief from default judgment of foreclosure rendered after homeowner failed to answer complaint to foreclose mortgage on her home where motion does not demonstrate fraud, show that amounts due and owing are incorrect, or show why any of alleged facts would entitle her to relief sufficient to set aside default judgment -- Argument first raised on appeal that affidavit of indebtedness attesting to amounts due on mortgage and note was insufficient to satisfy requirements for admissibility under business records exception to hearsay rule was not preserved for appellate review
VELDRIN D. FREEMON, Appellant, v. DEUTSCHE BANK TRUST COMPANY AMERICAS AS TRUSTEE, Appellee. 4th District.

Mortgage foreclosure -- Limitation of actions -- Error to enter summary judgment for defendant in foreclosure action by assignee of federal government agency on ground that action was barred by statute of limitations -- Federal government may file to foreclose on mortgaged property at any time, and assignee of mortgage acquired the benefit of federal government's unlimited time to foreclose
LPP MORTGAGE LTD., F/K/A LOAN PARTICIPANT PARTNERS, LTD., ETC., Appellant, vs. BARBARA J. TUCKER, Appellee. 3rd District.

Torts -- Action by chief engineer on yacht asserting claims for unseaworthiness against owner of vessel, maintenance and cure under admiralty law against owner and operator of vessel, and negligence against operator -- No abuse of discretion in denying motion to dismiss for fraud on court based on failure of plaintiff to disclose 1991 injuries -- Error to exclude evidence of these prior injuries from trial -- Error was exacerbated when plaintiff's counsel, who had succeeded in excluding evidence, commented on lack of evidence supporting defendants' claims that plaintiff sustained bad neck or shoulder injury in the past -- New trial required -- Damages -- Whether operator was entitled to set off plaintiff's recovery for cure with insurance payments from operator's insurer may be revisited on remand, as record indicates facts were not sufficiently developed to determine entitlement to set-off -- Error to award prejudgment interest to plaintiff
JVA ENTERPRISES, I, LLC and ENTERPRISES, INC., Appellants, v. JAMES S. PRENTICE, Appellee. 4th District.

Torts -- Interference with contract -- Error to deny seller's motion for directed verdict as to liability on claims of intentional interference with contract -- Prospective buyer of commercial real estate failed to offer any competent evidence of tortious conduct before contract failed to close -- Because circumstances could be reasonably understood as making the property once again available when closing failed to consummate, offer to purchase on same terms and conditions, made by trustee of trust on day after closing failed, was not competent to prove an act capable of interfering with an executory contract -- No error in finding that there was no evidence of mutual agreement to extend closing until the following day where buyer contended that closing agent appeared to acquiesce in such an extension for purpose of allowing buyer to tender funds necessary to close, but there was no evidence of any representation or acknowledgment by seller that closing agent was authorized to do anything other than conduct the closing, particularly since it was undisputed that the day of closing was made essential by the seller -- Specific performance -- Trial court did not err in denying specific performance after finding that buyer failed to tender necessary funds on closing date and finding that there was no clear, definite and certain proof of an extension of closing
RICHARD DENTON, CYNTHIA BELL, KEVIN BELL, KENNETH L. GROVES, Appellants, v. GOOD WAY OIL 902 CORP., and 512 DEVELOPMENT CORP., Appellees. 4th District.

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