Saturday, March 23, 2013

Fundamental error in standard jury instructions, dismissal of complaints for failure to state claims for relief, and espresso-and-peppercorn-rubbed Bison with fingerling potatoes and sauteed sage

Criminal law -- Attempted second degree murder -- Jury instructions -- Trial court committed fundamental error by giving standard jury instruction on attempted voluntary manslaughter as lesser included offense of attempted second degree murder
JEROME J. FERRIER, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Criminal law -- Battery on law enforcement officer -- Trespass -- Evidence -- Argument -- Trial court erred in denying motion in limine to preclude prosecutor from highlighting defendant's alleged use of racial slurs against law enforcement officer where defendant's use of derogatory terms did not tend to prove any element of offenses charged -- State cannot show that error was harmless where derogatory terms were highlighted in opening statements, during witness testimony, and in closing argument -- Although defendant was acquitted on charge of battery on law enforcement officer, state cannot prove beyond reasonable doubt that inflammatory references and prosecutorial argument centered on racial slurs did not improperly influence jury on trespass charge
JULIANN GUERRERO, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Health care fraud -- Sentencing -- Federal guidelines -- Reasonableness of sentence -- Non-custodial sentence to probation for “time served” while on pre-trial release awaiting sentence for five-year $3 million health care fraud scheme, based on defendant's full restitution payment, his performance of community service, and rising costs of incarceration, was substantively unreasonable where sentence carried guidelines range of 57 to 71 months and sentence does not reflect seriousness and extent of crime, promote respect for law, provide just punishment, or adequately deter other similarly inclined health care providers -- Sentence fails to achieve the important goal of general deterrence when sentencing in a white-collar crime prosecution -- One of primary objectives of the sentence in a health care fraud prosecution is to send a message to other health care providers that billing fraud is a serious crime that carries with it a correspondingly serious punishment, and defendant's sentence sends the opposite message -- Sentencing Guidelines authorize no special sentencing discounts on account of economic or social status -- Sentence was procedurally reasonable where advisory guidelines range was calculated accurately and district court cited several Section 3553(a) factors as basis for variance below Guidelines range
UNITED STATES OF AMERICA, Plaintiff - Appellant, v. RICK A. KUHLMAN, Defendant - Appellee. 11th Circuit.

Torts -- Maritime law -- Dismissal of complaint -- Consideration of matters outside four corners of complaint -- Where defendant/employer filed motion to dismiss plaintiff/employee's complaint alleging Jones Act negligence, unseaworthiness, failure to provide maintenance and cure, and failure to treat on ground that employment contract contained forum selection clause requiring plaintiff to file action in federal court, trial court erred in denying motion to dismiss on ground that it could not look to copy of employment contract attached to motion to dismiss in ruling on motion -- Although, as a general rule, trial court is limited to allegations within four corners of complaint when considering motion to dismiss, there are exceptions to this general rule -- Court could properly consider copy of employment contract although it was not attached to complaint
STEINER TRANSOCEAN LIMITED, Appellant, vs. MILENA EFREMOVA, Appellee. 3rd District.

Torts -- Premises liability -- Trip and fall on allegedly unsafe walkway -- Error to enter default judgment against defendant that was not the owner of the property on date when plaintiff's injury occurred -- Default judgment may not be entered against defendant on a complaint which wholly fails to state a cause of action against the defendant -- Because complaint failed to state a claim against defendant, trial court erred in failing to grant defendant's motion to vacate judgment as void
MAUNA LOA INVESTMENTS, LLC, Appellant, v. ANAMARIA SANTIAGO, Appellee. 3rd District.

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