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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