Saturday, February 4, 2012

Criminal law, health care reform and vegetarian chili with fresh Italian parsley and hot peppers

Fraudulent misrepresentation -- Securities act violations -- Fraudulent inducement to purchase stock in corporation -- Complaint alleging that plaintiffs were misled regarding facts material to transaction known to defendants due to superior knowledge, which defendants concealed, sufficiently pled claims for fraudulent misrepresentation and securities act violations -- Trial court erred in dismissing claims
GEMINI INVESTORS III, L.P., ET AL., Appellants, vs. MICHAEL NUNEZ, ET AL., Appellees. 3rd District.

Legal malpractice -- Failure to fully implement estate plan, resulting in higher estate taxes -- Error to grant summary judgment in favor of defendants based on conclusions that plaintiffs were not intended beneficiaries of estate and therefore lacked standing and that, in any event, family limited partnership, which defendants failed to implement, was not a viable estate planning tool in this case -- Genuine issues of material fact existed both as to whether plaintiffs were intended beneficiaries of estate and whether use of FLP, which would have considerably reduced estate taxes, was a viable tax planning vehicle

Negligence -- Vicarious liability -- Plaintiff who was victim of sexual abuse by counselor at group care facility for foster children when plaintiff was a minor -- Counselor employed by subcontractor that was hired under management and consulting agreement which acknowledged that subcontractor may assume contractor's position at program at some point in future -- Contractor was not entitled to summary judgment based on its argument that it owed no duty to plaintiff because a facility in charge of sheltering and caring for foster children has duty to conform to certain standard of conduct to protect children from unreasonable risks of harm, and there is conflicting evidence as to whether control of facility had been transferred to subcontractor -- Proximate cause issue must be resolved by jury where record contained evidence from which jury could conclude that contractor or subcontractor knew or should have known about counselor's inappropriate relationship with plaintiff, and reasonable people could differ as to whether counselor's criminal acts were foreseeable in light of notice of the relationship -- Summary judgment entered on vicarious liability claim against subcontractor is affirmed where counselor's criminal acts were committed outside the scope of and not done in furtherance of her employment

Wrongful death -- Medical malpractice -- Causation -- Evidence offered supporting finding that doctor was negligent in failing to intubate deceased and more likely than not, had deceased been intubated, she would have survived -- Trial court erred in denying hospital's motion for directed verdict which alleged that plaintiff failed to prove that any negligence by hospital's nursing staff caused deceased's death -- Although it was shown that the doctor was negligent and that nurses had breached a duty by checking box indicating that deceased needed less intensive care than was required, there was no evidence that nursing staff's negligence was a cause of death where no one testified that nurses had duty to intubate, or that checking box for the proper level of care and checking deceased's vital signs immediately or more frequently would have affected the outcome
HOLLYWOOD MEDICAL CENTER, INC., d/b/a HOLLYWOOD MEDICAL CENTER, a Florida Corporation, Appellant, v. CAMILLUS ALFRED, as Personal Representative of the Estate of URSULINE ALFRED, deceased and URSULINE ALFRED, individually and on behalf of all the survivors of URSULINE ALFRED, Appellees. 4th District.

Criminal law -- Aggravated battery -- Resisting officer with violence -- Jury instructions -- Justifiable use of non-deadly force -- Charges arising from incident in which defendant struck officer where officer claimed defendant struck him with baton upon his attempt to place handcuffs on defendant, and defendant claimed that he punched officer after officer used his baton to strike him while his hands were in the air -- Failure to instruct jury on justifiable use of non-deadly force constituted reversible error because defendant's version of incident, however improbable, was not demonstrably false and was sufficient to support such an instruction
RICO GLENN, Appellant, v. STATE OF FLORIDA, Appellee. 5th District.

Criminal law -- Appeals -- Order denying motion to reduce or modify sentence is not appealable
MARK A. REYES, Appellant, vs. THE STATE OF FLORIDA, Appellee. 3rd District.

Criminal law -- Attempted burglary -- Evidence -- Where perpetrator gained entry to dwelling through open window and no property was taken, it was error to admit “tools” found on defendant's person when he was apprehended as there was no evidence linking these items to the crime, either as instruments or fruits of the crime
JERRY STEPHENS, Appellant, v. STATE OF FLORIDA, Appellee. 5th District.

Criminal law -- Attorney's fees -- Attorney appointed to represent indigent defendant in criminal case -- Where case had been determined to be extraordinary and unusual, court departed from essential requirements of law by limiting fee to double the flat fee without considering the number of hours expended in determining whether the fee award was confiscatory

Criminal law -- Burglary of a dwelling -- Attached porch -- Bicycle stolen from concrete pad connecting to front walkway -- Area from which defendant stole bicycle was not an “attached porch” within the definition of a “dwelling,” as provided in section 810.011(2), where the area was located in the front of the home and maintained neither posts nor sufficient enclosure to visually indicate it was an extension of, rather than just near, the home -- Moreover, there was no personal property within the area suggesting it was a logical extension of the dwelling and, unlike a carport, the area was open to unknown, uninvited people
HARLEY LLOYD COLBERT, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Criminal law -- Costs -- It was error to assess costs in written order of sentence which were not orally announced -- Error to assess public defender fee without giving defendant opportunity to contest fee
ANTRAVEIUS T. BAKER, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Criminal law -- Dismissal -- Absence of motion -- Trial court abused its discretion by sua sponte dismissing charges against defendant -- Florida case law clearly provides that, in the absence of statute or motion to dismiss, the decision whether to prosecute or dismiss charges is a determination to be made solely by the state
STATE OF FLORIDA, Appellant, vs. PAUL BROSKY, Appellee. 3rd District.

Criminal law -- Double jeopardy -- Felony merger doctrine -- Separate convictions for attempted felony murder and attempted premeditated murder arising from same criminal episode did not amount to double jeopardy violation under standard analysis -- However, dual convictions based on attempted killing of one victim are precluded by felony merger doctrine -- Attempted felony murder conviction reversed
JOSEPH BERNARD WILLIAMS, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Criminal law -- Drug trafficking -- Obtaining controlled substance by withholding information -- Search and seizure -- Trial court did not err in denying motion to suppress defendants' pharmacy records -- Trial court erred in denying motion to suppress statements made by defendants' doctors to law enforcement
KAREN PLEVYAK HAY, a/k/a KAREN L. HAY, and ROBERT RONALD HAY, Appellants, v. STATE OF FLORIDA, Appellee. 2nd District.

Criminal law -- Evidence -- Hearsay -- Tape recording -- Trial court did not err in allowing surreptitiously recorded conversation between defendant and co-defendant in the back of a patrol car to be played at trial where defendant's side of conversation was admissible as a party admission and co-defendant's side of conversation was admissible to place defendant's statements into context -- Further, conversation between the two was not instigated by law enforcement or any other person with primary purpose of collecting evidence for criminal prosecution
TRAHN BOWENS, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Criminal law -- Evidence -- Search and seizure -- Interception and disclosure of wire, oral, or electronic communications -- Outgoing calls by 911 dispatcher -- Error to deny defendant's motion to suppress outgoing phone call recorded by 911 dispatcher where original call to 911 reporting a disturbance was made from the house next door -- Plain language of section 934.03(2)(g)2 does not allow outgoing calls by 911 dispatcher to be recorded without consent of person being called, even if outgoing call is in reference or relates to incoming 911 call, where the outgoing call was not to the number from which the incoming call was placed for purpose of obtaining information required for emergency assistance -- State's contention that statute should be read broadly is rejected in light of statute's plain language and legislative history -- Argument that recording was lawful because communication on recording was oral communication between defendant and victims in which defendant had no expectation of privacy is rejected -- Recording subject to the motion to suppress included only communications that were picked up over telephone which clearly met definition of “wire communication” in section 934.02(1), and there is no basis in limited record of suppression hearing to conclude defendant had no expectation of privacy
ROBERT JASON PERDUE, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Criminal law -- Grand theft -- Jurisdiction -- Theft occurring on commercial airplane -- Order denying defendant's motion to dismiss is reversed where theft was not committed wholly or partly within Florida under section 910.005(1)(a) because theft was fully executed before plane reached Florida's territory -- Further, because the crime was completed the moment defendant obtained victim's money with intent to permanently deprive, defendant's actions could not constitute an attempt to commit an offense within Florida under section 910.005(1)(b)
STACY SANDERS, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Criminal law -- Habeas corpus -- Ineffective assistance of appellate counsel -- Appellate counsel was ineffective for failing to file supplemental brief raising issue of whether attempted voluntary manslaughter jury instruction, given in trial for attempted first-degree murder with firearm, amounted to fundamental error -- Where, before initial brief was filed in petitioner's direct appeal, sister district court of appeal issued decision holding that use of standard jury instruction on manslaughter requiring state to prove intent to kill victim constituted fundamental error, and, while petitioner's direct appeal was pending, the same court subsequently issued decision holding that its reasoning applied to standard instruction on attempted manslaughter, appellate counsel had duty to ask for supplemental briefing on the jury instruction issue -- Standard jury instruction on attempted manslaughter possessed same fatal flaw as standard instruction on manslaughter -- Conflict certified
TYRONE DILL, Petitioner, v. STATE OF FLORIDA, Respondent. 5th District.

Criminal law -- Habeas corpus -- Manslaughter -- Jury instructions -- Justifiable and excusable homicide -- Ineffective assistance of appellate counsel -- Appellate counsel was ineffective for failing to raise as fundamental error trial court's failure to instruct jury on justifiable and excusable homicide in connection with manslaughter instruction
BASIL BURFORD, Petitioner, v. STATE OF FLORIDA, Respondent. 4th District.

Medical Malpractice (Legislation): FLORIDA LAWMAKERS WANT MED-MAL CLAIMS OUT OF THE COURTS, 19 No. 9 Westlaw Journal Health Law 7, Westlaw Journal Health Law January 26, 2012 Two Republican lawmakers in Florida have proposed landmark legislation that would replace the state's medical malpractice litigation system with an administrative process. Senate Bill 1588, introduced Jan. 6 by state Sen. Alan Hays calls for the creation of a "patient compensation system" that would be as the exclusive remedy for personal injury and wrongful-death claims related to medical malpractice.

 Medical Devices: WRIGHT MEDICAL HID DANGERS OF PROFEMUR HIP SYSTEM, SUIT SAYS, Dees v. Wright Med. Tech., 19 No. 9 Westlaw Journal Health Law 8, Westlaw Journal Health Law January 26, 2012 Wright Medical Technology Inc. concealed the dangers of premature wear of its Profemur-Z total hip system, according a man suing the company in a Georgia federal court, claiming the device required replacement in less than three years. Jace Dees says Georgia-based Wright and parent Wright Medical Group Inc. knew of durability problems with the prosthetic hip and had received hundreds of related complaints before his was implanted in September 2008, yet fraudulently continued to market. 

 Nursing Homes: $100 MILLION SUIT ALLEGES ABUSE, COVER-UP AT NEW YORK GROUP HOME, Romeo v. Aid to the Developmentally Disabled, 19 No. 9 Westlaw Journal Health Law 9, Westlaw Journal Health Law January 26, 2012 The sister of a deceased mentally retarded man has alleged in a $100 million federal court lawsuit that his group home operator conspired with New York disability advocates to cover up the negligent and abusive treatment he received. Jean Romeo claims that Aid to the Developmentally Disabled Inc. and the Individual Group Home Living program worked together to "stonewall" her family from receiving information about her brother's injuries and death.

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