Sunday, August 28, 2011

Family law amendments, felony DUI, sentencing, securities fraud and a busy week in the court kitchen

Criminal law -- Murder -- Death penalty -- Post conviction relief -- Lethal injection -- Constitutionality -- Circuit court did not err in finding, after evidentiary hearing, that Department of Corrections' substitution of five grams of pentobarbital for five grams of sodium thiopental as the first of three drugs used in lethal injection protocol did not violate Eighth Amendment's proscription against cruel and unusual punishment -- Circuit court did not abuse its discretion in excluding certain witnesses whose testimony defendant wished to present during the evidentiary hearing to discuss the “safety and efficacy” of pentobarbital in executions where supreme court had relinquished jurisdiction to circuit court for narrow purpose of holding evidentiary hearing solely on claim regarding the efficacy of pentobarbital as an anesthetic in the amount prescribed by Florida's protocol and prohibited defendant from raising any other claims -- Circuit court did not err in excluding affidavits of two reporters to which were attached newspaper articles written by affiants chronicling their eyewitness accounts of an execution, as these items constituted inadmissible hearsay -- Public records -- No error in denying various requests for public records -- Clemency -- No error in denying claim that defendant was denied a clemency proceeding and effective assistance of clemency counsel where claim was speculative and insufficiently pled -- Circuit court properly denied relief on claim that Florida's death penalty structure is unconstitutional because Governor has absolute discretion to decide that a death warrant should be signed -- Claim that thirty-three-year period spent on death row constituted cruel and unusual punishment is facially invalid under Florida Supreme Court's clear precedent, and circuit court did not err in summarily denying this claim -- Vienna Convention -- Claim that defendant is entitled to relief because of state's failure to advise defendant, a Cuban national, of right to notify his consulate of his arrest and to consult with that consulate or a diplomatic officer without delay should have been raised on direct appeal and is procedurally barred -- Moreover, claim is without merit
Reported at 36 Fla. L. Weekly S461a

Criminal law -- Felony driving under influence -- Qualifying misdemeanor convictions -- Trial court erred in denying defendant's motion to dismiss because state failed to meet its burden of proving the three qualifying convictions necessary for a felony DUI where one of defendant's prior convictions was uncounseled and state presented no evidence that defendant waived his right to counsel before entering a plea of guilty -- Plea form signed by defendant with a checked box marked “waive my right to lawyer” did not establish that defendant waived his right to counsel where defendant changed his plea six weeks after the date the plea form was signed, the court is required to renew the offer of counsel at each crucial stage of the proceedings as long as defendant is unrepresented, and the entry of a plea is a “crucial stage” of the proceedings -- Issue of sufficiency of defendant's oath to verify motion to dismiss, which was not notarized, is not reached where state waived any technical noncompliance of the motion and affidavit when it declined to address the trial court's concerns about the oath and moved forward with the presentation of evidence on the merits of the motion
Reported at 36 Fla. L. Weekly D1879a

Criminal law -- Sentencing -- Correction -- Rounding up -- Appeals -- Trial judge's stated policy of mechanically rounding up a prison sentence to the nearest whole number without any reflection on the individual merits of a particular case violated defendant's right to due process -- While the sentence imposed was within the legal guidelines, trial judge's policy to round up the minimum required sentence of 6.16 years to 7 years improperly extended defendant's incarceration in an arbitrary manner -- District court was incorrect in its determination that the error was not reviewable -- Although there was no contemporaneous objection during the sentencing hearing, and the error did not qualify as a “sentencing error” that can be raised in a 3.800(b) motion, the error was fundamental where it was basic to the judicial decision and equivalent to a denial of due process
Reported at 36 Fla. L. Weekly S473a

Criminal law -- Houston v. State ,(Fla.App. 2 Dist.)
Criminal Justice - Phrasing of standard jury instruction for attempted manslaughter creates an impermissible intent-to-kill element.
The phrase "committed an act which was intended to cause the death of" in the standard jury instruction for attempted manslaughter impermissibly creates an intent-to-kill element in the crime of attempted manslaughter. Nothing in the statutory scheme suggests that the crime of attempted manslaughter requires an intent to kill. In so holding, the District Court of Appeal for the Second District certified conflict.

Criminal law -- Wiggs v. State ,(Fla.App. 2 Dist.)
Criminal Justice - State's evidence did not establish probable cause for warrantless search of defendant's vehicle based on drug-detection dog's alert.
Under Florida law, the State's evidence did not establish probable cause for a warrantless search of the defendant's vehicle based on a drug-detection dog's alert to the vehicle. The dog's field accuracy rate was four out of fourteen, or approximately 29%, and this accuracy rate was insufficient to establish reliability, that is, a fair probability that drugs would be found in a vehicle following an alert. Furthermore, no evidence was presented about the nature of the dog's alert, the search of the defendant's vehicle, or the location of the cocaine therein, and thus, it was impossible to tell if the dog alerted on a residual odor or whether he alerted on the actual cocaine itself.

U.S. v. Cabrera ,(M.D.Fla.)
Criminal Justice - A conviction on one theory of wire fraud constituted an acquittal on the alternative theory, for double jeopardy purposes.
The jury's verdict convicting the defendant of six counts of wire fraud based on the theory of a scheme to defraud investors of the right to honest services constituted an acquittal on the charges against the defendant in those same counts of wire fraud based on the theory of a scheme to defraud investors of money. Therefore, following the vacation of the defendant's wire fraud convictions on the ground that the evidence did not establish honest-services fraud, the Double Jeopardy Clause precluded prosecution of the defendant on the wire fraud counts on the theory of a scheme to defraud investors of money. The verdict form gave the jury three options, not guilty, guilty of a scheme to defraud investors of money, and guilty of a scheme to defraud investors of the right to honest services, and the jury checked only the third option on all six wire fraud counts, leaving the other two options blank. The trial court had instructed the jury that it could find the defendant not guilty, or guilty under one of the two fraud theories, or guilty under both fraud theories.

Insurance -- Automobile liability -- Exclusions -- Household exclusion -- Injuries suffered by parents of named insured's granddaughter in accident occurring when parents were passengers in insured vehicle being driven by named insured's granddaughter as permissive driver -- Household exclusion unambiguously applies to claims by members of household of permissive driver insured although they were not members of named insured's household -- Household exclusion barring coverage for “any bodily injury” to “any insured or member of an insured's family residing in the insured's household” eliminates coverage for bodily injuries suffered by members of the household of a permissive driver insured
Reported at 36 Fla. L. Weekly S469a

Family law forms -- Amendment -- Writ of Bodily Attachment (Child Support)
Reported at 36 Fla. L. Weekly S472a
Mortgage-Backed Securities: AIG SUES BANK OF AMERICA OVER 'MASSIVE' MORTGAGE FRAUD, AIG v. Bank of Am. Corp., 21 No. 45 Westlaw Journal Insurance Coverage 1, Westlaw Journal Insurance Coverage August 19, 2011
Bank of America grossly understated the risks of residential mortgage-backed securities, resulting in over $10 billion in damages to AIG and American taxpayers, according to a lawsuit filed by the insurance giant. American International Group Inc. and its subsidiaries say the nation's largest bank misled ratings agencies and investors about the creditworthiness of mortgage-backed securities. The 187 page complaint was filed in the New York County Supreme Court against Bank of America and its subsidiaries.

Malpractice Caps: WEST VIRGINIA HIGH COURT'S OK ON MALPRACTICE CAP SPURS ANGRY DISSENT, MacDonald v. City Hosp., 14 No. 3 Westlaw Journal Nursing Home 9, Westlaw Journal Nursing Home August 12, 2011
A state trial court judge serving by temporary assignment on West Virginia's highest court has filed a sharply worded dissent criticizing the majority's "counterintuitive" decision to uphold the state's malpractice damages cap. In a blistering 12-page dissent, Judge Ronald Wilson of the Brooke County Circuit Court said the Supreme Court of Appeals majority "capitulated to the West Virginia Legislature's political and unconstitutional mistreatment of medical malpractice victims."

Pharmaceuticals (Federal Preemption): SUPREME COURT SAYS GENERICS MAKERS NOT REQUIRED TO RELEASE WARNINGS, Pliva Inc. v. Mensing, 14 No. 3 Westlaw Journal Nursing Home 10, Westlaw Journal Nursing Home August 12, 2011
Manufacturers of generic drugs that discover new dangers posed by their products are not obliged to seek improved warnings for the labels that go beyond the language used on the labeling for that drug's brand-name version, the U.S. Supreme Court has ruled. In a 5-4 ruling, the justices said two circuit courts erred when they upheld separate suits by women who developed tardive dyskinesia, an irreversible neurological disorder, after taking generic metoclopramide.

Wrongful Death: SPIDER-BITE DEATH SUIT REQUIRES EXPERT REPORT, TEXAS HIGH COURT RULES, Omaha Healthcare Ctr. v. Johnson, 14 No. 3 Westlaw Journal Nursing Home 11, Westlaw Journal Nursing Home August 12, 2011
The Texas Supreme Court has dismissed a lawsuit filed against a nursing home over a fatal spider bite, rejecting the estate's claim that the action alleged ordinary negligence rather than medical malpractice. The 7-2 decision held that the estate's claim fell within the statutory definition of a health care liability claim, and therefore, the estate was required to timely file an expert report.Classie May Reed died three months after she was allegedly bitten by a brown recluse spider at Omaha Healthcare Center.

Dissolution of marriage -- Contempt -- No error in determining that former husband could not be held in contempt for failing to pay former wife's car loan where agreement to pay car loan was part of the equitable division of property, not the support award, and the contempt power of the trial court cannot be used to settle disputes regarding rights to property -- Alimony -- Abatement -- Trial court erred in finding that husband's alimony obligation was abated retroactively to his first day of unemployment where plain language of marital agreement stated that the obligation would not abate until after husband had been involuntarily out of work for ninety consecutive days -- Modification -- Trial court erred in modifying alimony award where trial court relied on wife's acquiescence to the modification by e-mail, but wife did not have full information regarding husband's income and husband did not meet burden of demonstrating a substantial change in income -- Trial court erred in finding husband not liable for making up difference between amount paid out of 401(k) account that had decreased in value, and the $125,000 originally agreed to where settlement agreement contained a latent ambiguity as to whether the parties intended to transfer a total sum of $125,000 or the present value of the 401(k) account -- Trial court must determine the intent of the parties through parol evidence
Reported at 36 Fla. L. Weekly D1882b

Education -- School Dist. Of Polk County v. Polk County Non-Industrial Employees Union, Local 227, AFSCME, AFL-CIO ,(Fla.App. 2 Dist.)
Education - Projected budgetary shortfall did not allow school district to restrict union's right to collective bargaining.
A projected budgetary shortfall for the upcoming fiscal year did not constitute an exigent circumstance permitting a school district to restrict a union's right to collective bargaining. Therefore, the school district committed an unfair labor practice by unilaterally changing the terms of and options for employee health insurance coverage for members of the union.

Employer-employee relations -- Termination -- Refusal to submit to polygraph test -- No error in granting summary judgment in favor of former employer on plaintiff's claim that employer unlawfully asked him to submit to a polygraph test -- No violation of Employee Polygraph Protection Act occurred where polygraph was requested in conjunction with ongoing investigation into disappearance of money from branch of employer's bank which was formerly managed by plaintiff and, under totality of circumstances, employer had reasonable suspicion that plaintiff was involved in the cash shortage -- Consolidated Omnibus Budget Reconciliation Act -- Failure to notify employee of right to continue healthcare coverage after termination of employment -- Limitation of actions -- Error to find that plaintiff's claim that employer unlawfully failed to notify him of his COBRA rights was barred by COBRA's one-year statute of limitations -- COBRA improper-notice claim accrues when plaintiff either knows or should know the facts necessary to bring an improper-notice claim -- District court improperly found that limitations period commenced upon expiration of the 44-day period during which, under COBRA, employer was required to notify plaintiff of his COBRA continuation right -- Remand for further proceedings on COBRA notice claim
Reported at 23 Fla. L. Weekly Fed. C295b

Estates -- Wills -- After-acquired property -- Where a will fails to dispose of all of a decedent's property, “partial intestacy” results, and property owned by testator at time of her death which was not disposed of by her will passes to her heirs in the manner prescribed by sections 732.101-.11, Florida Statutes (2009) -- Question certified whether section 732.6005, Florida Statutes (2004), requires construing a will as disposing of property not named or in any way described in the will, despite the absence of any residuary clause, or any other clause disposing of the property, where the decedent acquired the property in question after the will was executed? -- In instant case, where will bequeathed specific property to named individuals, but contained no mechanism to dispose of after-acquired property or any other property not mentioned in the will, testator died intestate as to non-listed property, including after-acquired property
Reported at 36 Fla. L. Weekly D1868a

Torts -- Railroads -- Action by employee of shipping and receiving facility who was injured as he unloaded freight from railcar, alleging defendant rail carriers negligently failed to regularly inspect and maintain interior bulkhead door's locking system -- No error in granting summary judgment in favor of defendants where plaintiff presented no evidence from which jury could infer that defendants' omissions, even if negligent, were proximate cause of plaintiff's injury, an essential element of negligence claim under Georgia law
Reported at 23 Fla. L. Weekly Fed. C277a

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Thursday, August 11, 2011

Easley Appellate Selected for "The State's Legal Leaders"

MIAMI, Aug. 11, 2011 /PRNewswire-USNewswire/ -- Announcing a special recognition appearing in the July, 2010 issue of Florida Trend published by Trend Publications. Dorothy F. Easley was selected for the following honor:  "The State's Legal Leaders"

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Wednesday, August 10, 2011

Bank of America sued for outsourcing customer calls overseas

Posted by Zoe Tillman in The National Law Journal   August 04, 2011

"A class action filed Wednesday accuses Bank of America Corp. of putting the privacy of its customers' financial data at risk of U.S. government surveillance by transferring service calls to overseas call centers."  More.

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Saturday, August 6, 2011

Contracts, torts, medical devices and asparagus crepes with shaved parmesan and rosemary

Bodily Injury: COURT FINDS NO BODILY INJURY IN DEAD-BODIES CASE, Owners Ins. Co. v. Warren Funeral Chapel, 21 No. 41 Westlaw Journal Insurance Coverage 1, Westlaw Journal Insurance Coverage July 22, 2011
A funeral home's insurer owed no coverage against allegations that the home caused emotional distress when it mishandled and improperly disposed of bodies because the discovery occurred months after its policy was canceled, a federal judge in Missouri has ruled. U.S. District Judge Nanette K. Laughrey of the Western District of Missouri noted that Owners Insurance Co.'s policy with Warren Funeral Chapel Inc. covered emotional distress under its definition of bodily injury.  

Child custody -- Parenting plan -- Time-sharing -- Evidence was insufficient to support trial court's finding that annual rotating time-sharing plan was in best interest of school-age child whose parents lived more than 300 miles apart -- Due process -- Moreover, trial court could not order annual, rotating time-sharing plan where neither parent requested such a plan in pleadings or argued for plan at final hearing
Reported at 36 Fla. L. Weekly D1699a

Civil rights -- Search and seizure -- Excessive force -- Male partygoer who was tased during tense incident outside of club prior to his arrest for disorderly conduct and resisting arrest without force and female partygoer who was knocked to the ground and knocked unconscious during incident, filed complaint against local police officers alleging multiple claims, including excessive force, and officers moved for summary judgment based on qualified immunity -- District court did not abuse discretion by considering plaintiffs' statement of material facts submitted with their brief opposing summary judgment, which did not comply with the letter of the local rule -- District court did not abuse discretion in considering depositions filed four days after filing deadline -- District court erred by denying qualified immunity to officer with respect to female plaintiff's excessive force claim because officer's taser report indicated that he applied contact tase to plaintiff, where plaintiff never based her excessive force claim on officer's contact tase, and district court should not have constructed theory of liability on plaintiff's behalf from facts that plaintiff never alleged -- A district court may look at all evidence in record to determine whether issue of material fact exists regarding the plaintiff's asserted causes of actions, but may not act as a plaintiff's lawyer and construct party's theory of liability from facts never alleged, alluded to, or mentioned during the litigation -- Officers, who fired taser probes into male plaintiff's chest and applied contact taser to back of his neck, are not entitled to summary judgment based on qualified immunity where officers' use of taser was excessive and law was sufficiently clear to put officers on notice that their conduct violated plaintiff's Fourth Amendment rights -- Under facts viewed in light most favorable to male plaintiff, officers' use of taser was excessive where crime for which plaintiff was arrested was not serious, plaintiff clearly did not present threat to officer safety or to safety of anyone else, and plaintiff was not resisting arrest or attempting to escape -- Unprovoked force against non-hostile and non-violent suspect who has not disobeyed instructions violates suspect's rights under Fourth Amendment -- Under either of two methods for determining whether reasonable officer would know that his conduct is unconstitutional, defendant-officers should have known that their conduct violated Fourth Amendment rights of plaintiff who was tased even though he committed at most a minor offense, did not resist arrest, did not threaten anyone, and did not disobey any instructions -- Officer, who tackled female plaintiff to ground after observing plaintiff screaming and stepping toward back of officer who was firing his taser at another partygoer, was entitled to qualified immunity where officer could have reasonably believed that plaintiff was about to attack officer from behind
Reported at 23 Fla. L. Weekly Fed. C176a

Police Misconduct (Expert Testimony): EX-L.A. COP CAN TESTIFY FOR CHICAGO POLICE-ASSAULT VICTIM, Obrycka v. City of Chicago, 8 No. 8 Westlaw Journal Expert and Scientific Evidence 1, Westlaw Journal Expert and Scientific Evidence July 20, 2011
An Illinois federal judge has ruled that a former member of the Los Angeles Police Department can testify on behalf of a bartender allegedly beaten by a Chicago officer when she refused to serve him more alcohol. Plaintiff Karolina Obrycka retained Lou Reiter as an expert witness to testify on an alleged "code of silence" within the Chicago's police department.In a July 5 ruling U.S. District Judge Amy St. Eve of the Northern District of Illinois rejected the city's argument otherwise.

Condominiums -- Assessment liens -- Trial court properly entered summary judgment for condominium association in its action to foreclose assessment lien where special assessment was passed in manner required by commercial condominium's bylaws and was for purpose of maintenance and repair of common elements, and there was no factual issue as to the validity of the assessment -- Unit owner's allegation of breach of fiduciary duty by association was not a valid defense to or avoidance of obligation to pay assessment lien -- Trial court properly severed lien foreclosure complaint from breach of fiduciary duty counterclaim, as facts giving rise to claims are not inextricably interwoven
Reported at 36 Fla. L. Weekly D1677b

Contracts -- Sale of hotel -- Directed verdict -- Trial court erred in granting directed verdict for plaintiff seller after plaintiff rested and prior to defendant having an opportunity to present any evidence -- Because defendant was not given any opportunity to call witnesses or to present any evidence regarding claim of fraudulent inducement, defendant was effectively denied due process
Reported at 36 Fla. L. Weekly D1676a

Life Insurance: WELLS FARGO'S 'STOLI' COUNTERSUIT PROCEEDS AGAINST INSURER, Pruco Life Ins. Co. v. Brasner, 21 No. 41 Westlaw Journal Insurance Coverage 2, Westlaw Journal Insurance Coverage July 22, 2011
Wells Fargo can press a countersuit for negligent misrepresentation against a life insurer that allegedly verified a $10 million "stranger-originated life insurance" policy as valid, a Florida federal judge has ruled. U.S. District Judge James I. Cohn of the Southern District of Florida rejected Pruco Life Insurance Co.'s argument that the "economic loss" rule barred a negligent-misrepresentation claim because Wells Fargo Bank N.A. only alleged economic harm.

Employee Theft: ONGOING THEFTS WORTH $1.5 MILLION NOT 'OCCURRENCE' UNDER POLICY, IFCO Sys. N. Am. v. Am. Home Assurance Co., 21 No. 41 Westlaw Journal Insurance Coverage 5, Westlaw Journal Insurance Coverage July 22, 2011
An insurer had no duty to cover alleged ongoing thefts of goods totaling $1.5 million by its policyholder's employee as the thefts did not meet the policy's definition of an occurrence, a Maryland federal court judge has ruled. American Home Assurance Co.'s policy with IFCO Systems North America defined an occurrence as an unintentional act, U.S. District Judge William M. Nickerson of the District of Maryland said. He granted AHAC's summary judgment motion, finding the insurer owed no coverage.

Mortgage Investment: MORTGAGE FIRM'S POLICY MIGHT COVER INVESTMENT, COURT FINDS, Certain Underwriters at Lloyd's London v. Cal. Mortgage & Realty, 21 No. 41 Westlaw Journal Insurance Coverage 6, Westlaw Journal Insurance Coverage July 22, 2011
An insurer may have a duty to defend a mortgage brokerage firm under its errors-and-omissions policy against lawsuits seeking the return of a combined $9 million in investment funds, a California federal judge has ruled. U.S. District Court Judge William Alsup of the Northern District of California said a policy by Certain Underwriters at Lloyd's London might cover California Mortgage & Realty's alleged negligence in remitting funds or servicing investments.

Bad Faith: ATTORNEY'S ADVICE SHIELDS INSURER FROM BAD-FAITH FINDING, Finger v. State Farm, 21 No. 41 Westlaw Journal Insurance Coverage 8, Westlaw Journal Insurance Coverage July 22, 2011
State Farm did not act in bad faith when it denied coverage of a judgment for slander based on the advice of its attorney, an Alabama federal judge has ruled. U.S. District Judge Kristi K. DuBose of the Southern District of Alabama called the insurer's post-verdict coverage denial "unusual" but concluded its reliance "on an experienced and highly qualified attorney's contradictory but thoroughly analyzed opinion was in good faith."The judge nevertheless ordered State Farm Fire to pay policyholders.

Auto: INSURER CAN'T DENY COVERAGE BASED ON CDL REQUIREMENT, Devese v. Transguard Ins. Co., 21 No. 41 Westlaw Journal Insurance Coverage 10, Westlaw Journal Insurance Coverage July 22, 2011
The estate of an unlicensed commercial truck driver killed in a collision can move forward with claims for breach of contract and bad faith where the policy's license requirement was overbroad and designed to dodge coverage, Nebraska's highest court has ruled. The state Supreme Court held in a written opinion that the insurer failed to show a causal link between the driver's failure to maintain a commercial driver's license and the accident.

Wrongful death -- Nursing homes -- Arbitration -- Power of attorney -- Nonfinal order compelling arbitration of claims reversed where deceased's power of attorney did not authorize surrogate to consent to arbitration -- The language of the POA supports no conclusion that deceased intended to authorize surrogate to act for deceased in matters related to property rights or potential litigation with health care providers where POA specifically listed powers that related to the direct provision of medical care and identified surrogate as a “health care surrogate,” and the third parties whom POA directed to accept surrogate's actions were all related to the provision of health care -- Particularly persuasive is fact that language of POA is strikingly similar to language in health care surrogate statute -- Reversed and remanded with instructions to deny motion to compel arbitration
Reported at 36 Fla. L. Weekly D1684a

Pain Patch: W.VA. HIGH COURT REVIVES SUIT OVER MYLAN PAIN PATCH OVERDOSE, Mace v. Mylan Pharm., 18 No. 11 Westlaw Journal Medical Devices 1, Westlaw Journal Medical Devices July 18, 2011
A divided West Virginia Supreme Court of Appeals has restored a product liability suit filed against Mylan Pharmaceuticals by a man who says his wife died from an overdose of fentanyl that leaked from a pain patch. The high court, in a 2-1 decision, said a state circuit court judge erred when he dismissed the suit on forum non conveniens grounds without considering that the limitations period for the action in the other available forum, North Carolina, had expired.

Discovery: HOSPITAL INFECTION RATES NOT PRIVILEGED, ILLINOIS APPEALS COURT RULES, Zangara v. Advocate Christ Med. Ctr., 8 No. 8 Westlaw Journal Expert and Scientific Evidence 3, Westlaw Journal Expert and Scientific Evidence July 20, 2011
A Chicago-area hospital must disclose the number of its patients who contracted the deadly MRSA bacteria because the information is not protected by Illinois' peer-review privilege, a state appellate court has ruled. The 1st District Appellate Court reinstated lawsuits filed by Joseph Zangara and the family of Zigmund Dziamara, determining the plaintiffs had a legitimate reason for initially failing to attach affidavits of merit as required under state law.

Criminal law -- Search and seizure -- Vehicle -- Dog sniff -- Probable cause -- Trial court erred in determining that dog's alert on defendant's vehicle provided probable cause to search and in denying defendant's motion to suppress cocaine discovered in vehicle as a result of the search -- Dog's field accuracy rate was insufficient to establish a fair probability that drugs would be found following an alert where dog's field performance records indicated that dog had conducted seventeen vehicle sniffs and alerted to the presence of drugs fourteen times, but drugs were found after only four of those alerts -- The fact that officer documented and explained some type of narcotics history associated with each vehicle to which dog alerted but in which no drugs were found was relevant to the issue of whether an alert was false or an alert to a residual odor; however, the officer's explanations were not specific enough to establish the existence of residual odors on which dog should have alerted -- Nine of the unverified alerts where officer testified that vehicle had drug history or that someone in each vehicle had used narcotics recently are not considered in calculating dog's field accuracy rate because officer's explanations failed to identify what the drug history entailed, why it ensured that drugs had once been in the vehicle, how long before the stop someone in the vehicle had used narcotics, or how residual of an odor dog could be expected to detect -- Even if final unverified alert where officer testified that he actually smelled marijuana in the vehicle was added to dog's positive alert calculation, dog's accuracy rate is still only thirty-six percent, which is insufficient to establish reliability -- Additionally, the state's failure to set forth the details of the dog's alert on defendant's vehicle makes it impossible to tell if dog alerted on residual odor or whether he alerted on the actual cocaine itself -- Therefore, under a totality of the circumstances analysis, the state failed to present sufficient evidence to establish probable cause to believe that contraband actually would be found in vehicle after dog's alert
Reported at 36 Fla. L. Weekly D1688a

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Monday, August 1, 2011

Section 893.13, Florida Statutes, which expressly eliminates mens rea as an element of a drug offense, is facially unconstitutional

Criminal law -- Habeas corpus -- Delivery of cocaine -- Knowledge or intent -- Amendment to Florida's Drug Abuse Prevention and Control law, Section 893.13, Florida Statutes, which expressly eliminates mens rea as an element of a drug offense, is facially unconstitutional as violative of Due Process Clause, because it results in a strict liability offense with a harsh penalty, substantial social stigma, and overbroad regulation and punishment of otherwise innocuous conduct -- State of Florida exceeded constitutional limits beyond which states may go in choosing to eliminate elements from criminal offenses -- No merit to arguments that any constitutional infirmity should be overlooked because defendant may raise lack of knowledge as an affirmative defense, rendering the statute something other than strict liability offense; or, alternatively, statute does not regulate innocuous conduct since “the possession of cocaine is never legal,” and the imposition of harsh penalties without proof of mens rea is simply a risk drug dealers undertake for selling or delivering cocaine -- Remaining habeas claims challenging conviction and sentence are unavailing
Reported at 23 Fla. L. Weekly Fed. D11a

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