Kerry I. Evander

The case involved Kellie Williams appealing her judgment and sentence for possession of clonazepam under Florida law. Williams argued that the trial court erred by failing to instruct the jury on her prescription defense, which she based on evidence that she was temporarily holding the medication for the prescription holder who had memory problems related to bipolar disorder. The appellate court agreed, citing prior rulings that extended the defense under section 893.13(6)(a) to individuals authorized by the prescription holder to possess the controlled substance on their behalf. Because the trial court had not instructed the jury on this defense, the judgment was reversed and the case remanded for a new trial.

criminal law

The case involves UCF student Paul Couchman appealing disciplinary sanctions imposed by the university, raising the question of whether UCF qualifies as an agency under Florida’s Administrative Procedure Act (APA) for purposes of direct appellate review in the district court. The court held that UCF is not subject to the APA when acting pursuant to rules adopted by its Board of Trustees under authority derived from the state constitution, and therefore transferred the case to circuit court for certiorari review. The reasoning centered on the 2002 amendment to Article IX of the Florida Constitution, which established the Board of Governors and local boards of trustees with constitutional powers over the state university system, distinguishing such actions from those taken solely under legislative statutory authority. As a result, the APA’s definition of “agency” and its judicial review provisions do not apply, leaving certiorari in the circuit court as the proper avenue for challenging the quasi-judicial disciplinary decision.

procedure

The case involved a mother appealing an order from a child dependency proceeding in which her minor child was adjudicated dependent, sole parental responsibility was awarded to the father, and the court's jurisdiction was terminated. The appellate court reversed the trial court's order on the grounds that the mother's due process rights were violated during the proceedings. After the mother entered a consent plea to the dependency petition based on a proposed case plan with a goal of reunification—as recited in the plea form and confirmed during the court's colloquy—the trial court instead awarded custody to the father following a positive drug test, without prior notice that this disposition was under consideration or an opportunity for the mother to withdraw her plea. The court reasoned that Florida Rule of Juvenile Procedure 8.325(c) requires a parent entering a consent plea to do so voluntarily and with full understanding of the possible consequences, which was not satisfied here given the mismatch between the plea understanding and the final disposition.

family lawprocedurecivil rights

In Louzon v. State, Anthony Louzon was convicted after a jury trial of robbery with a weapon based on testimony from the alleged victim, Mark Stallings, and two co-defendants who identified Louzon as the perpetrator. The appellate court reversed the conviction and remanded for a new trial, holding that the prosecutor made several improper comments during closing arguments. These comments suggested, without supporting evidence, that Stallings had been threatened by or on behalf of Louzon to recant his identification, which was deemed highly prejudicial as it implied separate crimes of witness tampering and suborning perjury. The court also briefly addressed but rejected Louzon's challenge to his eligibility for prison releasee reoffender sentencing, finding that legal custody by the Department of Corrections sufficed even without physical transfer to a facility.

criminal lawprocedure

Jeffrey Goldberg was convicted after a jury trial of grand theft from a person sixty-five years of age or older. The trial court sentenced him to three years in prison despite his scoresheet totaling less than twenty-three points, without making written findings that a non-state prison sanction could present a danger to the public. Florida statute section 775.082(10) requires a non-state prison sanction for such offenses with twenty-two or fewer points unless the court makes those specific written findings. Although Goldberg filed a motion to correct the sentencing error, the trial court again failed to include the required findings in its order. The appellate court reversed and remanded for resentencing to a non-state prison sanction.

criminal lawprocedure

The case involved the State of Florida appealing the dismissal of criminal charges against Annette Latona for possession of oxycodone and morphine. The charges stemmed from police finding prescription pill bottles belonging to her patient H.H. in her purse during a traffic stop, where Latona claimed she was authorized to hold them as his home health nurse and attorney-in-fact under a durable power of attorney. Latona moved to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4), asserting a prescription defense, and the trial court granted it after finding the State's traverse insufficient to raise a factual dispute. The appellate court affirmed, holding that the power of attorney expressly permitted Latona to hold H.H.'s property including medications, and absent any notice of revocation to her, H.H.'s later statement to police did not create a material factual issue precluding dismissal.

criminal lawprocedureproperty

In State v. Carry, the State appealed from a trial court order dismissing an information charging Lucson Carry with possession of more than twenty grams of cannabis under Florida Rule of Criminal Procedure 3.190(c)(4). The trial court granted the motion after finding that the undisputed facts failed to establish constructive possession, specifically that the odor of marijuana was insufficient to prove Carry's knowledge of the cannabis found in the trunk. The appellate court reversed, concluding that the State had presented sufficient evidence to establish a prima facie case. The court reasoned that Carry's status as driver, possession of the trunk key, and the strong odor of cannabis emanating from the vehicle permitted inferences of dominion and control as well as knowledge, and that knowledge is generally a factual issue not appropriate for resolution on a motion to dismiss.

criminal lawprocedure

The case concerned Major McCray's appeal of his conviction for conspiracy to traffic in cocaine, where he argued that the Office of the Statewide Prosecutor lacked authority to file the information because the offense was not connected to a criminal conspiracy affecting more than one judicial circuit, rendering the conviction void for lack of subject matter jurisdiction. The court affirmed the conviction. It relied on the Florida Supreme Court's decision in Carbajal v. State, which held that even if the statewide prosecutor lacked authority, such a defect does not divest the circuit court of jurisdiction over felony offenses. The court further noted that a conviction from an information signed by an unauthorized state officer is not void from the beginning but is only voidable if challenged in a timely manner. No timely challenge had been made in this case.

criminal lawprocedure

The case involved a breach of contract claim by Kimberly Grider-Garcia against State Farm Mutual Automobile Insurance Company for denying coverage after her Mazda Protege was stolen and destroyed. At trial, after Grider-Garcia presented her evidence without introducing the insurance policy, the trial court granted State Farm's motion for directed verdict on the ground that the contract itself had not been admitted into evidence. Grider-Garcia twice requested to reopen her case to introduce the policy, which had been attached to the complaint and whose existence and terms were not disputed, but the court denied the requests. The appellate court reversed, holding that the denial was an abuse of discretion because the request was timely, the evidence was undisputed, State Farm would suffer no prejudice, and counsel's mistaken belief that the attached policy was already in evidence was reasonable, and remanded for a new trial.

procedurebusiness & regulatory

Mark Lanzo was convicted by a jury of burglary of an occupied dwelling and petit theft after being found standing in an open garage touching a bicycle that belonged to the homeowner. He appealed the trial court's decision to give a jury instruction based on a statutory presumption that stealthy entry without consent is prima facie evidence of intent to commit a crime. The appellate court held that the evidence was insufficient to support the instruction because Lanzo approached and remained at the garage in daylight on a residential street in full view of passersby and did not act in a furtive or clandestine manner. The court therefore reversed the convictions and remanded the case for a new trial.

criminal lawprocedure

In Childree v. State, Thomas Childree appealed the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief, challenging the imposition of a Prison Releasee Reoffender (PRR) sentence on the ground that he did not qualify for it. The appellate court held that the trial court had erred in concluding the claim was not cognizable in a 3.850 proceeding, noting that an unauthorized PRR sentence constitutes an illegal sentence subject to such relief. The court therefore reversed in part and remanded the case, directing the trial court either to attach record portions conclusively refuting the claim or to conduct an evidentiary hearing.

criminal lawprocedure

The case involved a negligence lawsuit brought by Jose Benitez and his wife against Joseph Trucking, Inc., and Estela Hernandez after Benitez, an independent contractor, was injured in a tractor-trailer crash. The plaintiffs claimed that the defendants negligently maintained the trailer's wooden bed, causing it to break, shift the load, and overturn the vehicle. The jury found both parties negligent and apportioned 70% fault to the defendants, but the trial court granted a directed verdict for the defendants, finding insufficient evidence of causation. On appeal, the court reversed, holding that the evidence was sufficient for the jury to reasonably conclude that the poor condition of the trailer caused the crash and that expert testimony was not required on the issue.

torts & liabilityprocedure

The case was a mortgage foreclosure action in which Wells Fargo filed an unverified complaint alleging the Gicks defaulted on payments and later moved for summary judgment before they answered, supported by an affidavit that stated amounts due but did not reference the alleged default or any non-payment. The trial court granted the motion and entered final summary judgment. The appellate court reversed, holding that a plaintiff may move for summary judgment before an answer but bears a heavy burden to conclusively show the defendants cannot plead or raise any genuine issue of material fact, which was not met here due to the affidavit's deficiencies.

propertyprocedure

In Gartner v. State, Timothy Gartner appealed his conviction for robbery with a deadly weapon, arguing that the trial court improperly allowed the State to introduce evidence of two other robberies under the Williams Rule to prove identity. The appellate court reversed the conviction and remanded for a new trial, holding that the collateral crimes lacked the required identifiable points of similarity that were so unusual as to point to the defendant, as the robberies shared only general characteristics common to such offenses along with several dissimilar details. The court further concluded that the error was not harmless given the extensive testimony devoted to the uncharged offenses. The court affirmed the trial court's separate ruling that a photographic lineup was not impermissibly suggestive.

criminal lawprocedure

This case involved unit owners in a condominium operating as a hotel who sued the condominium association (MOCCA) and its managing agent (Tinimar) for failing to provide independently audited annual financial statements as required by their rental and management contracts. The trial court ordered Tinimar to provide the statements for certain years despite finding some claims barred by waiver, estoppel, or laches. On appeal, the court affirmed the order as to MOCCA but reversed as to Tinimar's obligation for 2004 and 2005, holding that the claim was an action for specific performance of affirmative contractual duties and thus subject to the one-year statute of limitations under section 95.11(5)(a), Florida Statutes, rather than the five-year period for equitable actions on a written contract. The decision turned on classifying the requested relief as enforcement of an affirmative obligation, distinguishing it from cases involving both affirmative and negative covenants.

propertyprocedurebusiness & regulatory

In Davis v. State, the defendant appealed his convictions for possession of drug paraphernalia, cannabis, and a concealed weapon by a felon after a trial court denied his motion to suppress evidence found during a police encounter. The court determined that what began as a consensual conversation transformed into an investigatory stop when the officer secured Davis's pocketknife without consent and performed a protective patdown. Under Florida and federal precedent, such a stop requires reasonable suspicion of criminal activity, which was absent here because the officer observed only the lawful possession of a visible pocketknife in a high-crime area with no furtive movements or threats. The court therefore reversed the judgment and remanded the case with directions to grant the motion to suppress.

criminal lawprocedure

The case involved Winter Park Imports, a car dealer, suing JM Family Enterprises and related companies under the Florida Motor Vehicle Dealer Act for alleged violations, seeking both monetary damages and injunctive relief to stop the defendants from operating certain Lexus dealerships. The defendants made offers of judgment under section 768.79, which the plaintiff rejected, and after prevailing on the claims, they moved for attorneys' fees based on the offers. The trial court denied the motions, and the appellate court affirmed, holding that section 768.79 does not apply where a plaintiff seeks both monetary damages and injunctive relief as part of the same claims because the statute is limited to civil actions for damages and requires a comparison of monetary amounts. The court reasoned that the claims arose from the same alleged violations permitting both forms of relief, even though they were divided into separate counts.

procedurebusiness & regulatory

Harrison was convicted after a jury trial of sale of cannabis and possession with intent to sell within 1,000 feet of a school, with the convictions affirmed on direct appeal. He petitioned for relief alleging ineffective assistance of appellate counsel for failing to challenge the trial court's pretrial ruling that barred cross-examination of the State's key juvenile witness about her probationary status as a juvenile offender. The court granted the petition, holding that the ruling violated the defendant's confrontation rights under the U.S. Supreme Court's decision in Davis v. Alaska because the interest in juvenile record confidentiality must yield to the right to impeach for bias or motive. It directed appointment of new appellate counsel to brief that issue in a new appeal.

criminal lawprocedurecivil rights

In Gordon v. Gordon, a husband and wife each appealed from the final judgment dissolving their twenty-year marriage, with the primary issues concerning the trial court's orders on the husband's obligations for permanent alimony, child support, health insurance for the wife, life insurance to secure support payments, and contributions to private school and extracurricular expenses. The appellate court affirmed the trial court's decisions on private school tuition and the overall equitable distribution of assets but reversed on the health insurance requirement for lacking any cost limitation or evidence of availability, the $1,000,000 life insurance mandate due to insufficient evidence of affordability or necessity, and the failure to allocate life insurance between alimony and child support. The core reasoning was that support orders must be based on competent evidence of costs, need, and ability to pay, with proper findings and allocations to ensure the obligations are reasonable and enforceable, while construing extracurricular expense provisions to require mutual agreement under shared parental responsibility. On remand, the trial court was directed to recalculate the husband's support obligations accordingly.

family law

In JL v. State, a juvenile was adjudicated guilty of burglary of a dwelling and petit theft after stealing a go-cart, four-wheeler, and skateboard from a victim's yard where the items were leaning against the house. The court addressed whether the yard constituted curtilage of the dwelling under Florida's burglary statute, which requires some form of enclosure around the residence. The appellate court reversed the burglary conviction, finding the state's evidence insufficient because the testimony only described partial fencing without details on connectivity or the relevant side of the house, and items merely touching but not attached to the house do not qualify as curtilage. It remanded for entry of judgment on the lesser included offense of trespass.

criminal lawproperty