Robert L. Shevin

This case involved a workplace injury lawsuit by Martin Bakerman, an assistant store manager for The Bombay Company, who fell from a defective, too-short ladder while retrieving merchandise and fractured his heel. Bakerman sued his employer alleging that its repeated refusal to replace the known dangerous ladder despite employee complaints constituted an intentional tort, allowing him to bypass workers' compensation immunity. The jury found for Bakerman, but the Florida Third District Court of Appeal reversed on rehearing, directing entry of judgment for Bombay. The court held that the evidence was legally insufficient under the intentional tort exception to workers' compensation immunity, as interpreted in Turner v. PCR, Inc., because there was no deliberate intent to injure and no concealment of the obvious danger from the employee. The decision emphasized that such exceptions must be narrowly construed per the Florida Supreme Court's Taylor v. School Board of Brevard County ruling.

labor & employmenttorts & liability

In Vega v. Vega, a husband appealed a final judgment of dissolution of marriage, arguing that the alimony awarded to his wife was excessive. The court reversed the permanent and rehabilitative alimony awards, finding them excessive because they amounted to 64 to 80 percent of the husband's net monthly income, which prior decisions have held exceeds a payor's ability to pay. The court reasoned that alimony must be set based on net income and be fair to both parties, taking into account the wife's ability to earn income after completing her nursing studies. On remand, the trial court was directed to establish reasonable alimony amounts the husband can afford.

family law

This case involved a worker's claim against his employer for retaliatory discharge under Florida's workers' compensation statute, section 440.205, after he was injured on the job and subsequently fired. The trial court had entered summary judgment for the employer, struck the claim for lost wages, struck the demand for a jury trial, and struck the request for attorney's fees. On appeal, the Third District Court of Appeal reversed the summary judgment on the retaliatory discharge claim because the record showed disputed issues of material fact about whether the employer knew of the injury and fired the worker in retaliation, and it also reversed the orders striking the lost wages claim and the jury trial demand. The court affirmed the order striking the attorney's fees claim, holding that the statute does not authorize such fees in retaliatory discharge actions. The decision turned on the standard for summary judgment, which prohibits credibility determinations and requires viewing evidence in the light most favorable to the non-moving party, as well as precedent recognizing a jury trial right in these statutory damages actions.

labor & employmentprocedure

In Meade v. State, the defendant appealed his conviction for possession of a firearm by a convicted felon. During jury selection, a prospective juror described being the victim of a violent home invasion robbery by a convicted felon and drew a parallel to the defendant; the trial court denied the defense's challenge for cause, forcing the use of a peremptory strike. The appellate court reversed the conviction and remanded for a new trial, concluding that the juror's responses raised reasonable doubt as to her impartiality, she was not properly rehabilitated, and the defendant had preserved the issue by exhausting peremptory challenges and identifying objectionable jurors who remained.

criminal lawprocedure

The case involved Anthony Santiago's appeal of his conviction for burglary of a conveyance in Florida state court. Santiago argued that the trial court should have granted a mistrial after a detective's testimony referenced taking a DNA sample at the jail, which the defense claimed prejudiced the jury by implying pretrial detention. The appellate court affirmed the conviction, holding that the trial judge acted within its discretion by sustaining the objection and providing a curative instruction to disregard the reference, as it was an isolated comment in a lengthy trial and did not necessitate a mistrial. The court also declined to address a sentencing classification issue because it was not properly preserved in the lower court.

criminal lawprocedure

In Sims v. State, the defendant was convicted of cocaine possession after officers testified that he dropped a baggie of the drug during questioning, though one officer lacked knowledge of the event and the other relied on an arrest report without independent recall. The defense had subpoenaed a witness expected to testify that the defendant was not in possession of drugs, but the witness failed to appear for trial despite the subpoena. The trial court denied repeated requests to issue a writ of bodily attachment to compel the witness's presence, and the defendant proceeded to trial without the witness after stating a desire to do so against counsel's advice. The appellate court reversed the conviction, holding that the defendant had a constitutional right to compulsory process for witnesses under subpoena and that the trial court lacked discretion to refuse enforcement, with no valid waiver or harmless error given the weak evidence against the defendant. The case was remanded for a new trial.

criminal lawprocedure

In MacHin v. State, the defendant appealed the denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 after his conviction for sexual battery, claiming that his trial counsel was ineffective for failing to present alibi witnesses. After an evidentiary hearing, the trial court denied the motion, finding that one proposed witness was not credible, that another could not account for the defendant's whereabouts at the time of the offense, and that the defendant's proposed timeline was physically impossible given traffic and weather conditions. The court further concluded that presenting the alibi evidence would likely have strengthened the prosecution's case by placing the defendant near the crime scene. The appellate court affirmed, holding that the trial court's credibility and factual findings were supported by competent substantial evidence and that the defendant failed to meet the Strickland standard for ineffective assistance of counsel.

criminal lawprocedure

The case concerns Eddie L. Cowart's appeal from a trial court order denying his motion for postconviction relief after he was convicted and sentenced as a habitual offender. Cowart claimed that his trial counsel incorrectly advised him he did not qualify as a habitual offender, leading him to reject a 24-month plea offer from the state and later receive a 20-year sentence. The appellate court remanded the case for an evidentiary hearing or attachment of record excerpts on that specific claim, as the existing record did not conclusively refute it. The court affirmed the denial of Cowart's remaining claims without addressing the merits of the remanded issue.

criminal lawprocedure

The case involved a dispute between J.T.A. Factors, a factoring company providing accounts receivable financing, and Philcon Services, a steel erector subcontractor, arising from J.T.A.'s factoring agreement with a payroll services provider used by Philcon. Philcon sued J.T.A. after it misapplied designated project payments, filed liens on three construction projects claiming unpaid labor despite knowing no such labor had been provided, and maintained the liens for weeks despite protests, leading to claims for fraudulent liens, tortious interference with business relationships, and conversion. The jury found for Philcon on the tortious interference and conversion counts (but for J.T.A. on fraudulent liens), and the trial court denied J.T.A.'s post-trial motions for JNOV and new trial. On appeal, the court affirmed the judgment, concluding that several challenges were unpreserved, the evidence was sufficient to support the verdicts on the interference and conversion claims, and the trial court did not abuse its discretion regarding jury instructions or the verdict form.

business & regulatorypropertytorts & liability

In Tatum v. State, the defendant sought additional credit for time served on a Monroe County charge, claiming it should begin from the date a detainer was lodged against him while he was already in Dade County jail awaiting transfer on a separate matter. The Third District Court of Appeal granted one extra day of credit due to a conceded arithmetic error but otherwise affirmed the trial court's denial of the requested credit. The court followed the Fourth District's decision in Gethers v. State and certified conflict with contrary holdings from the First and Second Districts. It reasoned that filing a detainer document has no effect on time served when it is not causally related to the defendant's actual confinement for another reason in another county.

criminal lawprocedure

The case involved a law firm appealing an order from the circuit court imposing appellate attorney's fees as sanctions under Section 57.105 against it and its insurer client in a personal injury protection (PIP) benefits dispute stemming from an auto accident claim by a minor. The sanctions were based on findings that the firm's appeal from county court was untimely, failed to provide a hearing transcript, and improperly sought to revisit a prior appellate ruling. The District Court of Appeal treated the matter as a petition for certiorari, granted it, and quashed the sanctions, concluding that the circuit court's assumptions were legally erroneous and the appeal did not meet the standard of being frivolous.

proceduretorts & liability

In this case, John Geraci appealed the denial of his motion to set aside a default and default final judgment entered against him in a circuit court action brought by Preferred Capital Markets for alleged non-payment of rent and a promissory note. The defaults were entered without notice after Geraci, acting pro se, served a paper on plaintiff's counsel denying key allegations and attaching proof of payments, though the paper referenced the wrong case number from a related county court eviction action. The appellate court reversed and remanded, concluding that under Florida Rule of Civil Procedure 1.500 any paper served in the action requires notice of a default application and that the substance of Geraci's filing put counsel on notice of his intent to defend.

procedure

In this case, Kristian Stensby sued Effjohn Oy Ab and its subsidiary for breach of an oral 1994 agreement under which he was to help raise $14.5 million through public and private securities offerings in Norway to finance the purchase of two cruise ships, in exchange for 15% of the shares in the operating corporation. A jury found that the agreement existed and had been breached, awarding Stensby $6 million in damages, but the trial court granted the defendants a new trial. On cross-appeal, the District Court of Appeal of Florida, Third District, reversed and directed entry of judgment for the defendants. The court held that Stensby presented no evidence that the risky venture would have been consummated without the breach, as no investment funds were shown to be available, and that his claim for lost profits over ten years was too speculative given industry conditions and the vessels' financial history. The decision rested on established contract principles requiring proof that the breach was a substantial factor causing actual damages.

business & regulatory

The case involved Rafael Varas's conviction for trafficking in cocaine after DEA agents stopped him with a bag containing over a kilogram of the drug, which he claimed he believed held a power drill as a favor for an acquaintance. The main issue on appeal was whether the trial court erred by barring cross-examination of the lead DEA agent about his omission of details regarding Varas's nervous demeanor from prior sworn statements and reports. The Third District Court of Appeal reversed the conviction for a new trial, holding that the proposed cross-examination was proper impeachment of critical testimony used to prove the defendant's knowledge of the bag's contents, not merely non-critical negative impeachment. The court reasoned that the agent's demeanor observations were central to the state's case and to the denial of the motion for judgment of acquittal.

criminal lawprocedure

In Collier v. State, the appellant challenged the denial of his motion for postconviction relief under Rule 3.850, seeking to set aside his 1990 plea to armed robbery after that conviction was used to enhance his sentence in a 1996 criminal case. He claimed his trial counsel misadvised him that the plea would not be used against him in the future because he was a juvenile and that he would have gone to trial otherwise. The District Court of Appeal of Florida, Third District, affirmed the trial court's denial of the motion. The court held that neither counsel nor the sentencing court is required to anticipate a defendant's future recidivism or advise on the consequences of potential future crimes, viewing any such advice as addressing civil effects rather than future criminal penalties.

criminal lawprocedure

In Amador v. Amador, the former husband appealed the denial of his motion for attorney's fees after successfully moving to recover property from his former wife in a divorce case. The trial court had granted a directed verdict against him for failing to prove his fee agreement, and denied his request to reopen the evidence to introduce that agreement. The appellate court reversed, holding that the trial court abused its discretion by not allowing the case to be reopened, as doing so would not prejudice the former wife and would serve the interests of justice by presenting the complete facts.

family lawprocedure

The case involved Phillip Marshall, who after a successful appeal leading to a new trial, pleaded guilty and was resentenced to seven and one-half years in prison following an initial life sentence. He sought additional credit for unforfeited incentive gain time accumulated during his prior incarceration under a life sentence, which the Department of Corrections tracks but had not applied. The court remanded the case for clarification on whether the existing 1190 days of credit already accounted for gain time to prevent double crediting, noting that the defendant must first seek relief from the Department of Corrections for gain time calculations, with judicial review available only after exhausting administrative remedies.

criminal lawprocedure

This case involves multiple appeals by Eileen M. Brake from orders awarding attorney's fees in the probate proceedings for the estate of Eileen Ellis Murphy. The Florida Third District Court of Appeal dismissed several appeals as premature, because the orders had not yet determined who would pay the fees, or as untimely. It affirmed the remaining fee awards, holding that expert testimony is not required by statute for fees to counsel for the personal representative, that other objections were not preserved, and that required findings existed for sanctions under section 57.105. The court also offered guidance on procedures for addressing judicial disqualification motions based on timesheet notations that might suggest ex parte communications. On clarification, it noted that fee awards linked to a reversed surcharge judgment must be revisited after further proceedings.

procedure

The case involved a mother appealing a final judgment terminating her parental rights after a bench trial in which her appointed counsel participated but she did not appear. The mother argued that the trial court abused its discretion by denying an oral motion for continuance made the morning of trial because counsel could not reach her by phone. The appellate court affirmed the judgment, holding that the mother had been instructed at calendar call to remain available on two hours' notice during the trial week and bore the responsibility to stay in contact with counsel. The court further noted that the six-week gap between the hearing and entry of the written judgment provided ample opportunity for the mother to seek reopening of the record or rehearing, which she did not pursue.

family lawprocedure

The case involved a defendant who entered a boot camp agreement providing for a 21-36 month prison sentence if its terms were violated. After breaching the agreement by committing an aggravated battery, the trial court imposed probation based on recommendations from the probation officer and boot camp supervisor. The state appealed, contending the agreement must be enforced as written and that the sentence fell improperly below guidelines. The appellate court affirmed, ruling that the state may not interfere with the trial court's sentencing discretion not to enforce the agreement and that the court could depart further downward since the prosecution itself had offered a below-guidelines sentence in the plea deal.

criminal law