Constitutional law, habeas corpus, insurance coverage, health care reform, and fresh summer squash sauteed in rosemary-sage butter

Attorney's fees -- Prevailing party -- Award of fees is reversed where final judgment entered in favor of the prevailing parties was reversed
BLACK DIAMOND PROPERTIES, INC., BLACK DIAMOND REALTY, INC., AND STANLEY C. OLSEN, Appellants, v. CHARLES S. HAINES, KATHY HAINES, RICHARD O. CONBOY, JACKSON RANDOLPH, LARRY LAUKKA, ANGELO MASUT, BRENDA MASUT AND TOM HOWELL, Appellees. 5th District.

Bankruptcy -- Chapter 11 -- Confirmation of plan -- Debtors may not obtain confirmation of Chapter 11 cramdown plan that provides for sale of collateral free and clear of creditor's lien but does not permit creditor to “credit-bid” at the sale
RADLAX GATEWAY HOTEL, LLC, et al., Petitioners v. AMALGAMATED BANK. U.S. Supreme Court.

Dissolution of marriage -- It was error to require both parties to obtain life insurance to secure child support where such relief was not requested, and where court made no findings that special circumstances justified requirement and no findings regarding insurability, cost of insurance, or ability to afford insurance -- Court erred in finding that child could not be home schooled where child would not reach kindergarten age until twenty months after date of final judgment -- It is improper to determine best interest of child prospectively
STEVEN EDWARD EISELE, Appellant/Cross-Appellee, v. HEIDI MARIE EISELE, Appellee/Cross-Appellant. 2nd District.

Iranian Investments: CALIFORNIA MEASURE SEEKS TO BAN INSURERS' INVESTMENTS IN IRAN, 8 No. 2 Westlaw Journal Insurance Bad Faith 9, Westlaw Journal Insurance Bad Faith May 29, 2012 The California Insurance Commission has passed an initiative over opposition from insurance companies and associations, that seeks to restrict insurers from investing state residents' premiums in entities involved with building Iran's nuclear sector or developing the country's petroleum or natural gas. Although State Farm Insurance Co. and insurance industry trade organizations registered their opposition to Assembly Bill 2160, the measure passed after a committee hearing May 2.

Health Care Reform: NOTRE DAME, CATHOLIC GROUPS SUE TO BLOCK CONTRACEPTION MANDATE, Univ. of Notre Dame v. Sebelius, 22 No. 34 Westlaw Journal Insurance Coverage 3, Westlaw Journal Insurance Coverage June 1, 2012 May 21 (Reuters) - The University of Notre Dame and dozens of other Catholic institutions have sued the Obama administration to block a government regulation that requires employers to provide health insurance coverage for contraceptives to employees. The regulation, which is part of the president's health care reform law, has sparked a nasty fight between the administration and the Roman Catholic Church, which opposes artificial contraception. Some 43 Catholic groups have sued.

Professional Services Exclusion: PROPERTY MANAGER GETS NO COVERAGE FOR FATAL APARTMENT FIRE, Golden Eagle Ins. Corp. v. Lemoore Real Estate & Prop. Mgmt., 22 No. 34 Westlaw Journal Insurance Coverage 4, Westlaw Journal Insurance Coverage June 1, 2012 A property manager will get no coverage for a $29 million judgment in wrongful-death suits stemming from an apartment complex fire that killed five people, a California appeals court has ruled. The 5th District Court of Appeal held that the professional services exclusion in Lemoore Real Estate & Property Management Inc.'s business liability policy with Golden Eagle Insurance Corp. precluded coverage for the judgment.

  Duty to Defend: HOMEBUILDER HAD RIGHT TO CONTROL ITS DEFENSE IN DEFECT SUITS, Travelers Prop. Cas. Co. v. Centex Homes, 22 No. 34 Westlaw Journal Insurance Coverage 9, Westlaw Journal Insurance Coverage June 1, 2012 Homebuilding giant Centex Homes claimed the right to control its legal defense when its insurer, Travelers Property Casualty Company of America, stalled in defending it in a pair of construction defect lawsuits, a California federal judge has ruled. "As the duty to defend arises immediately upon tender, Travelers' delay in providing Centex with a defense divested it the insurer of the right to control that defense," U.S. District Judge Samuel Conti of the Northern District of California said. 

Criminal law -- Sentencing -- Holding of United States Supreme Court in Graham v. Florida that the Eighth Amendment prohibits life sentences without the possibility of parole for juveniles convicted of nonhomicide crimes does not prohibit imposition of seventy-year sentence on fourteen-year-old juvenile defendant convicted of attempted first-degree murder -- Question certified
SHIMEEK GRIDINE, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Criminal law -- Trafficking in cocaine -- Habeas corpus -- Claim that section 893.13, as amended by section 893.101, is facially unconstitutional because it eliminates all mens rea from drug statute should have been raised on direct appeal or in post conviction proceedings, rather than in habeas petition -- Assuming trial court deemed habeas petition a rule 3.850 motion, trial court correctly determined it would be time-barred and declined to transfer it to sentencing court where relief was sought four years after judgment and sentence became final
MALCOLM D. DELANCY, JR., Appellant, v. KENNETH S. TUCKER, Secretary, Department of Corrections, Appellee. 1st District.

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Ineffective assistance of counsel, grand theft, and chocolate biscotti with almonds and sambuca

Criminal law -- Grand theft -- Limitation of actions -- Trial court properly dismissed grand theft charge where capias was issued within limitations period but was not executed until almost eight years after state filed information -- Section 812.035(10) provides five-year limitations period for theft, and that period could be extended for no more than one year based on defendant's continuous absence from state -- Specific statute setting forth statute of limitations for theft controls over provisions of general statute of limitations for third-degree felonies

STATE OF FLORIDA, Appellant, v. MARGARITA PEREZ, Appellee. 2nd District.

Criminal law -- Probation revocation -- Discrepancy between oral pronouncement and written sentence -- Remanded with directions to correct written order to conform to oral pronouncement

JEFFREY W. SIMPSON, Appellant, v. STATE OF FLORIDA, Appellee. 2nd District.

Criminal law -- Post conviction relief -- Trial court abused its discretion in summarily denying defendant's claim of ineffective assistance of counsel because it was facially insufficient without providing defendant at least one opportunity to amend

DANIEL BRIAN EMMERT, Appellant, v. STATE OF FLORIDA, Appellee. 2nd District.

Criminal law -- Restitution -- Error to hold restitution hearing in absence of defendant without showing that defendant knowingly, intelligently, and voluntarily waived right to be present

KEITH KNESPLER, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Criminal law -- Delivery of cocaine -- Speedy trial -- Error to find that speedy trial period for charges of delivery of cocaine commenced on date defendant was taken into custody for acts of using a false name and riding his bicycle without a light -- Trial court misapplied “criminal episode” standard of speedy trial rule by placing great emphasis on ongoing investigation of police officers, rather than actions of defendant

STATE OF FLORIDA, Appellant, v. TILFORD BAYNHAM, Appellee. 4th District.

Criminal law -- Habeas corpus -- Ineffective assistance of appellate counsel -- Petition claiming ineffective assistance of appellate counsel during appeal from resentencing proceeding was untimely, successive, and frivolous -- Further pro se filings barred

ALFRED WILCHER, Petitioner, v. STATE OF FLORIDA, Respondent. 4th District.

Criminal law -- Juveniles -- Habeas corpus -- Court did not exceed its authority in placing juvenile on home detention with electronic monitoring and imposing 8 p.m. curfew pending placement in moderate risk residential program -- Statute does not place specific limit on home detention pending placement in moderate-risk residential program -- Provision that child who is awaiting placement in a moderate-risk residential program must be removed from detention within five days refers to secure detention

V.P., a child, Petitioner, v. STATE OF FLORIDA and DEPARTMENT OF JUVENILE JUSTICE, Respondents. 4th District.

Criminal law -- Second degree murder -- Evidence -- Sufficiency -- Defendant convicted of second degree murder for the shooting deaths of two victims after the victims and several others had surrounded defendant, defendant and victim began cursing at one another, and one victim struck defendant after being encouraged by second victim -- Evidence warranted conviction for manslaughter but was insufficient to sustain convictions of second degree murder because defendant's shooting of the victims was an impulsive overreaction to the victim's attack rather than an act out of ill will, hatred, spite, or evil intent where defendant was backed up against his vehicle when he was confronted by multiple men, victims had both been drinking, and defendant was struck by victim causing him to fall back against the vehicle -- State's argument that defendant's demeanor before the confrontation was sufficient to prove that he acted with a depraved mind is rejected -- Defendant's use of deadly force occurred after he was attacked, and state pointed to no evidence that defendant had a previous grudge or ongoing dispute with the victims -- Jury instructions -- Stand Your Ground law -- Trial court erred in instructing jury as to the Stand Your Ground law over defendant's objection and in rejecting defendant's requested special instruction where there was evidence that defendant was engaged in unlawful activity at the time of the shooting and defendant's special instruction adequately addressed the scope of the duty to retreat in such cases, was a correct statement of the law, and was not misleading or confusing -- New trial is warranted, rather than remand with instructions to reduce murder convictions to manslaughter convictions, given error in jury instruction on self-defense

JOHN THOMAS DORSEY, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Criminal law -- Plea -- Withdrawal -- Counsel -- Adversarial relationship -- Trial court erred in summarily denying pro se motion to withdraw plea alleging that counsel did not handle the case properly, that defendant was lied to, pressured and frightened into taking the plea deal, and that defendant was unaware of his option to dismiss counsel -- Remanded for evidentiary hearing to determine the nature of defendant's attorney-client relationship and whether conflict-free counsel should be appointed before the issue of withdrawing defendant's plea is considered

DELBERT G. HALL, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Criminal law -- Providing a false name to a law enforcement officer -- Conviction reversed where defendant was charged with providing a false name to a particular officer, but state presented only evidence that he provided a false name to a second officer -- It is fundamental error to convict a person of an uncharged crime -- Error was not harmless because defendant could, in theory, yet be convicted of providing a false name to the second officer -- Grand theft -- Burglary of a structure -- Evidence -- Taped interview -- Where pro se defendant, while cross-examining investigator, informed the court he wanted to impeach investigator's testimony using recording of interview with investigator, and prosecutor and standby counsel informed the court that the recording would need to be redacted to remove references to defendant's criminal history, trial court erred in finding, out of concern over making the jury wait, that there was insufficient time to redact the recording, giving defendant the option of playing the recording in its entirety or not at all, with the defendant choosing the latter -- This ruling prevented the defendant from exercising his constitutional right to impeach witnesses against him and was not harmless error as the jury's verdict could have been affected by impeachment of investigator's testimony with the recording

JUSTIN WESCOTT, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Criminal law -- Trafficking in cannabis -- Search and seizure -- Warrant -- Where warrant authorized officers to enter and search the premises and curtilage, including any vehicles and/or temporary structures within the curtilage and all persons found on the premises, for certain items, including “titles, receipts and any other documents and records evidencing illegal activity, or that would lead to the identification of persons responsible for the unlawful possession or distribution of controlled substances,” officers were authorized to search truck and mailbox -- Officers could properly seize utility bills for property located at a different address as documents that would lead to identification of persons responsible for the unlawful possession of controlled substances, particularly when defendant's wallet contained receipt for payment of electric bill for that second property -- Error to grant motion to suppress evidence seized from mailbox and truck at first property and all evidence found at second property, which was searched pursuant to a warrant based upon affidavit the crux of which was the utility bills found at the first property

THE STATE OF FLORIDA, Appellant, vs. GUILLERMO MARTINEZ, Appellee. 3rd District.

Criminal law -- Juveniles -- Battery -- Closing argument -- No abuse of discretion in trial court's not allowing defense to argue self-defense in closing argument, a defense not previously raised, where defense could not reasonably have been inferred from any evidence at trial

M.S., A JUVENILE, Appellant, vs. THE STATE OF FLORIDA, Appellee. 3rd District.

Criminal law -- Sexual offenders -- Violation of registration and reporting requirements -- Trial court correctly concluded that the rule of criminal procedure which extends a deadline where the deadline falls on a weekend or holiday is not applicable to reporting requirements for sexual offenders, which are not based on a computation of time

ALVIN WILLIAMS, Appellant, vs. THE STATE OF FLORIDA, Appellee. 3rd District.

Criminal law -- Discovery -- State's failure to comply -- Trial court erred in failing to conduct Richardson hearing when state failed to disclose relevant evidence until second day of trial, in denying defendant's request to recall witnesses to question them about this new evidence, and in questioning jury about whether defendant's booking sheet, which was located in the jury room without being admitted into evidence, influenced its verdict

JAMEL RA SHAUD WESCOTT, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Criminal law -- Appeals -- Order denying motion for appointed counsel for post conviction purposes is not among class of orders appealable pursuant to rule 9.140(b)(1) -- Appeal dismissed without prejudice to right to file petition for writ of mandamus seeking to compel ruling by circuit court on pending motion(s) requesting that defendant be granted relief from his conviction

DELMART E.J.M. VREELAND, II, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Criminal law -- Double jeopardy -- Retrial after reversal by appellate court -- Where petitioner was prosecuted for first-degree murder based on alternative theories of premeditation and felony murder, jury returned guilty verdict without specifying the theory on which it relied, and state court reversed and remanded for retrial after finding that conviction for underlying felony was based upon legally insufficient theory and could not stand, retrial of defendant for premeditated murder did not violate Double Jeopardy Clause -- Petitioner failed to establish that state court's denial of relief was contrary to, or involved unreasonable application of, clearly established federal law

JESUS DELGADO, Petitioner-Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent-Appellee. 11th Circuit.

Aliens -- Removal -- Conviction of crime involving moral turpitude -- Board of Immigration Appeals and Immigration Judge erred by considering extraneous evidence outside record of alien's false imprisonment conviction to determine that his false imprisonment conviction qualified as conviction of a crime involving moral turpitude -- Congress unambiguously intended adjudicators to use categorical and modified categorical approach to determine whether a person was convicted of crime involving moral turpitude

CAMILO ERNESTO SANCHEZ FAJARDO, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent. 11th Circuit.

Criminal law -- Indictment -- Failure to state an offense -- Counts of indictment alleging state correctional officers knowingly falsified records with intent to impede, obstruct, and influence the investigation and proper administration of matter within jurisdiction of United States are insufficient as matter of law where indictment fails to identify “department or agency of the United States” conducting an investigation or for which administration would be impeded by defendants' alleged falsification of records -- Counts for falsification of records must be dismissed, because indictment neither tracks statutory language nor contains essential facts constituting the offenses charged -- Count alleging state correctional officer knowingly tampered with fellow correctional officer with intent to hinder, delay and prevent communication to federal law enforcement officer of information relating to commission of federal offense was insufficient and must be dismissed, where indictment fails to provide factual basis for charged offense

UNITED STATES OF AMERICA, Plaintiff, v. ALEXANDER MCQUEEN, et al., Defendants. U.S. District Court, Southern District of Florida, Miami Division.

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Chew on some interesting criminal law cases, last week of January 2009:

Criminal law -- Manslaughter -- Evidence -- Error to exclude evidence of victim's blood-alcohol level at time of affray in which defendant struck victim one time and victim fell where theory of defense was that victim was acting in an aggressive, threatening manner, under the influence of alcohol, and that defendant was only defending himself when he punched the victim a single time -- New trial required
Reported at 34 Fla. L. Weekly D223c

Criminal law -- Incest -- Defendant who had sexual intercourse with his 18-year-old adopted daughter and niece by his marriage to her biological mother's sister was erroneously convicted of incest because adopted daughter was not related to defendant by consanguinity -- Legal definition of incest is limited to persons who are related either by lineal consanguinity or collateral consanguinity -- It does not extend to persons who are related by affinity or adoption, but not biologically by blood
Reported at 34 Fla. L. Weekly D217a

Criminal law -- Murder -- Circumstantial evidence -- Trial court did not err in denying defendant's motion for judgment of acquittal where circumstantial evidence was sufficient for jury to exclude every reasonable hypothesis except for that of guilt -- No merit to defendant's claim that court's finding in penalty phase of trial that state failed to prove heinous, atrocious, or cruel aggravator applied to issue of whether evidence was sufficient to rebut defendant's hypothesis of innocence that someone else killed victim -- Penalty phase proceedings are distinct from guilt phase of murder trial, and court's findings regarding aggravators in penalty phase are not intended to override jury's verdict in guilt phase
Reported at 34 Fla. L. Weekly D213a

Criminal law -- Possession of cocaine, marijuana, and paraphernalia -- Search and seizure -- Vehicle stop -- Error to stop vehicle on ground that trailer hitch partially blocked tag and officers could not read letters on tag from distance of thirty to fifty feet -- Properly attached trailer hitch is not “other obscuring matter” for purposes of statute requiring that identifying information on plate be clear and distinct and free from defacement, mutilation, grease, and “other obscuring matter”
Reported at 34 Fla. L. Weekly D220a

Criminal law -- Habeas corpus -- State court reasonably applied Supreme Court precedent to facts of case in rejecting claim that certain jury instructions on accomplice liability used at petitioner's trial on murder and related charges were ambiguous and were likely misinterpreted by jury to relieve state of burden of proving every element of crime beyond a reasonable doubt -- Circuit court erred in granting habeas relief where state-court decision did not result in “unreasonable application of . . . clearly established Federal law”
Reported at 21 Fla. L. Weekly Fed. S602a

Criminal law -- Conspiracy to distribute cocaine base and powder cocaine -- Sentencing -- Federal guidelines -- Offense level -- Quantity of drugs -- Circuit court of appeals' order requiring petitioners' resentencing based on the district courts' categorical rejection of the 100:1 crack-to-powder cocaine ratio and substitution of its own 20:1 ratio conflicts with Kimbrough v. United States, which recognized district courts' authority to vary from the crack guidelines based solely on a policy disagreement, and not simply on individualized determination that guidelines yield excessive sentence in a particular case
Reported at 21 Fla. L. Weekly Fed. S596a

Civil rights -- Search and seizure -- Qualified immunity -- Under two-step procedure for resolving government officials' qualified immunity claims mandated by Court in Saucier v. Katz, court must decide whether facts alleged or shown by plaintiff make out violation of constitutional right and, if so, whether that right was “clearly established” at time of defendant's alleged misconduct -- Saucier procedure, although often beneficial, it should no longer be regarded as mandatory in all cases -- Law enforcement officers in this case, who conducted warrantless search of plaintiff's house incident to arrest for sale of methamphetamine to an undercover informant whom he had voluntarily admitted to the premises, were entitled to qualified immunity on ground that it was not clearly established at the time of the search that their conduct was unconstitutional -- Officers relied on “consent-once-removed” doctrine, which permitted warrantless police entry into home when consent to enter had already been granted to undercover officer who observed contraband in plain view -- At time of entry, “consent-once-removed” doctrine had gained acceptance in lower courts and had been approved in some cases involving consensual entry by private citizens acting as informants, and officers were entitled to rely on those cases without facing personal liability for their actions even though their own federal circuit had not yet ruled on “consent-once-removed” entries
Reported at 21 Fla. L. Weekly Fed. S588a

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