Morris Silberman

In KW v. State, a juvenile defendant appealed an order withholding adjudication and placing her on probation after being charged with leaving the scene of a crash involving injury under Florida Statute 316.027. The case centered on whether the State presented sufficient evidence that K.W. knew or reasonably should have known that the crash caused personal injury, based on testimony from an investigating officer and the injured driver about a multi-vehicle accident on I-275. The District Court of Appeal of Florida, Second District, reversed the trial court's denial of the motion for judgment of dismissal, holding that the circumstantial evidence failed to establish K.W.'s involvement in the specific impact that caused the rollover and injuries or to rule out her reasonable hypothesis of innocence. The court reasoned that without details on how the vehicles collided or the nature of the damage to K.W.'s car relative to the injury-causing impact, the State could not meet the intent requirement from State v. Mancuso.

criminal lawprocedure

The case involved Sue Elizabeth Amason's appeal of the revocation of her probation and her resulting five-year prison sentence for the third-degree felony of obtaining food or lodging with intent to defraud. Amason had admitted to violating a condition of her probation by changing her residence without approval, but she argued that the trial court denied her due process by not allowing her or her counsel an adequate opportunity to address sentencing issues, including questioning of witnesses and presentation of mitigating evidence. The court reversed the revocation order and sentence, holding that while the trial judge did not improperly assume the prosecutor's role, the judge cut off defense counsel multiple times and failed to provide a chance to respond before imposing the statutory maximum sentence. It remanded for a new revocation hearing before a different judge. The topics are criminal law and procedure.

criminal lawprocedure

The case involved the Department of Revenue appealing on behalf of a mother from a trial court order that granted a father's petition to disestablish paternity of a child under Florida Statute section 742.18 after the mother did not produce the child for court-ordered DNA testing. The trial court had granted the petition solely based on the mother's non-appearance and denied rehearing on that basis, without addressing other statutory requirements. The appellate court reversed and remanded, holding that the statute requires a determination that the mother's failure to submit the child for testing was willful before relief can be granted against her, and that she must be given an opportunity to show good cause for the failure. The court noted that the trial court also had not made findings on all seven required factors under section 742.18(2).

family lawprocedure

In Gizaw v. State, Lidia Gizaw was convicted by a jury of trafficking in cannabis, possession of a conveyance for trafficking, and possession of drug paraphernalia after police found cannabis in a suitcase in the trunk of her car during a traffic stop. The appellate court reversed the convictions, holding that the state failed to prove Gizaw's constructive possession of the cannabis. The court reasoned that there was no evidence of Gizaw's knowledge of the drugs or her dominion and control over the suitcase, as the evidence instead supported the passenger's sole possession, including men's clothing in the suitcase and the passenger keeping the car keys during the trip.

criminal lawprocedure

In Solomon v. State, the defendant appealed the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief, in which he sought additional jail credit toward his Polk County sentence for time spent in custody in Calhoun County from March to August 2008 based on an alleged arrest on a Polk VOP warrant or a Polk detainer. The postconviction court denied the claim, attaching records showing the warrant was served on August 26, 2008, and concluding that Solomon was not entitled to credit before that date and that the sentencing court's oral pronouncement aligned with the written sentence. The appellate court reversed, determining that the attachments did not conclusively refute Solomon's claims that he was arrested on the Polk warrant in Calhoun County or would have been released but for the detainer, both of which could entitle him to credit, and remanded for attachment of further records or an evidentiary hearing while also directing reconsideration of the related sentencing pronouncement issue.

criminal lawprocedure

The case concerned Michael Enix's appeal of his convictions for attempted kidnapping, possession of cocaine, and possession of paraphernalia arising from a plan to kidnap a store manager's wife for ransom that was discussed with a confidential informant working with law enforcement. The appellate court reversed the attempted kidnapping conviction and sentence, holding that the trial court should have granted a judgment of acquittal because the evidence showed only preparatory acts such as obtaining a name and address and driving by a false location, without any overt act toward completing the kidnapping. The court affirmed the remaining convictions, applying Florida law requiring both specific intent and an overt act beyond mere preparation for an attempt crime.

criminal lawprocedure

The case involved Sean Thomas Green, who was convicted on multiple charges including dealing in stolen property, burglary, and grand theft after entering guilty pleas while reserving the right to appeal the denial of his motion to suppress his confession in four of five cases. The court reversed the convictions in those four cases, holding that the police violated Green's Miranda rights by continuing the interrogation after he made an unequivocal request for counsel. The opinion explained that once a suspect in custodial interrogation clearly invokes the right to an attorney, questioning must cease entirely, and officers may not make comments designed to persuade the suspect to speak without counsel. The detectives' statements about the inability to produce an attorney immediately and the amount of information they wanted to discuss undermined Green's request rather than honoring it. The court affirmed the judgment in the fifth case, where the motion to suppress was not dispositive.

criminal law

Frank Guzman appealed his convictions and sentences for lewd or lascivious molestation and lewd or lascivious exhibition, arguing that the trial court wrongly sustained an objection to a defense peremptory challenge of a female juror. The appellate court held that the trial court's finding of pretext in the challenge explanation was not clearly erroneous and therefore rejected the claim. The court accepted the State's concession that the written judgment required correction to specify the statute for one count. It affirmed the convictions and sentences but remanded solely for that clerical correction to the judgment, noting Guzman need not be present.

criminal lawprocedure

Ramona Keesling sued Residential Savings Mortgage, Inc., alleging fraud, negligence, and related claims arising from the company's telephone solicitation to refinance her home loan, which resulted in higher-than-expected payments and loss of equity. Residential moved to transfer venue from Pinellas County to Broward County, its only Florida office location. The appellate court reversed the trial court's denial of the motion and ordered the transfer, holding that venue was improper in Pinellas County under Florida Statute section 47.051. The causes of action accrued in Broward County where the loan closing occurred and funds were disbursed, rather than where Keesling was solicited or signed documents, and the suit sought only money damages with no real property in litigation.

proceduretorts & liability

The case involved Manuel Benitez-Saldana's appeal of his convictions for robbery and burglary with assault or battery after he entered a home, took money from a purse during a struggle, and fled. At trial, defense counsel conceded key facts from the victim's account, including a physical struggle over the purse and that a burglary may have occurred, while arguing only that the acts did not meet the legal thresholds for the charged offenses. Benitez-Saldana contended on appeal that these concessions amounted to ineffective assistance of counsel apparent on the face of the record. The court reversed the convictions and remanded for further proceedings, holding that counsel's admissions established the elements of the crimes with no conceivable strategic basis and caused clear prejudice, making the claim reviewable on direct appeal despite the general rule against it.

criminal lawprocedure

In Singletary v. Greever, Terry Singletary appealed a final judgment granting an injunction for protection against repeat violence filed by Kathryn Greever under section 784.046(2), Florida Statutes. The court reversed the injunction, holding that the evidence failed to establish two incidents of violence directed at Greever as required by the statute. The alleged incident at Greever's home involved no contact or threats by Singletary, while the statement at the credit union about a gun was made to a third party without any overt act showing imminent violence, and thus did not constitute an assault. Because neither incident met the statutory definition of violence or stalking, the court concluded there was no competent, substantial evidence to support the injunction and remanded for it to be vacated.

criminal lawprocedure

Scott Gosney, convicted of burglary and sentenced as a habitual felony offender and prison releasee reoffender, filed a motion and amended motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 alleging ineffective assistance of counsel. The postconviction court issued two separate orders: one dismissing some claims as successive or facially insufficient with leave to amend and denying others on the merits, and a second dismissing one new claim as facially insufficient and denying the rest on the merits, without addressing the prior claims left open for amendment. Gosney appealed these orders. The appellate court dismissed the appeal, holding that neither order was final or appealable because claims dismissed with leave to amend under Spera v. State had not received a final ruling and the two-year filing period had not expired, rendering the orders nonfinal and nonappealable. The court directed the lower court to set a specific time for amendment and noted an error in failing to allow amendment for one claim.

criminal lawprocedure

This case involves a father appealing a final judgment of paternity that awarded attorney's fees to the mother and set a visitation schedule. The court could not review the sufficiency of evidence for the fees entitlement or visitation because there was no trial transcript available. However, it reversed the attorney's fees award since the judgment lacked specific findings to justify the amount awarded. The court affirmed the other parts of the judgment and remanded the case.

family law

This case involved a minor, Jane Doe, who petitioned for a judicial waiver of the Florida statutory requirement that a parent or guardian receive notice before a minor's pregnancy is terminated. The trial court dismissed the petition after finding that the minor had not proven by clear and convincing evidence that she was sufficiently mature to decide on the procedure, based on her incomplete review of options and risks as well as her demeanor during the hearing. On appeal, the court affirmed the dismissal, concluding that competent and substantial evidence supported the trial court's factual findings and legal conclusions under the applicable statute.

abortionfamily law

The case involved a juvenile, A.B.S., who was taken into custody as a possible runaway under Florida statute and searched by an officer before being placed in a police cruiser, leading to the discovery of a controlled substance in a keychain container. A.B.S. admitted to the possession charge but appealed the denial of his motion to suppress the evidence, reserving the right to challenge the search. The District Court of Appeal of Florida, Second District, reversed the trial court's ruling and remanded the case. The court held that the search lacked a legal basis, as custody for a runaway is not a criminal matter and thus the search-incident-to-arrest exception did not apply, the officer had no suspicion of weapons or contraband, and the search was conducted solely due to departmental policy without a prior pat-down.

criminal lawprocedure

Jeffrey Lynn Cain appealed his judgments and sentences for drug charges, fleeing to elude a law enforcement officer, and resisting an officer without violence, along with the revocation of his probation based on those new offenses. The appellate court affirmed the convictions, sentences, and revocation order on the merits. However, it remanded for correction of a scrivener’s error in the written revocation order, which had incorrectly stated that Cain admitted to violating multiple probation conditions when the trial court had only found violations of two conditions tied to the new law violations.

criminal lawprocedure

William Bishop, a person committed under Florida's Involuntary Civil Commitment of Sexually Violent Predators Act (Jimmy Ryce Act), filed a habeas corpus petition seeking release on the ground that the circuit court lacked jurisdiction because he was not in lawful custody when commitment proceedings were initiated. After his original prison sentence was corrected on postconviction review and imposed nunc pro tunc, Bishop contended his term had already expired before the State filed its commitment petition. Relying on the Florida Supreme Court's decision in Larimore v. State, the appellate court held that factual disputes over the expiration date of the corrected sentence, including the effect of gain time, prevented it from resolving the jurisdictional issue. The court therefore transferred the petition to the circuit court for an evidentiary hearing to determine Bishop's custodial status at the time proceedings began.

criminal lawprocedure

The case involved David Shierling appealing the denial of his motion to modify a permanent injunction for protection against repeat violence, which barred him from coming within 500 feet of his next-door neighbor Willie Hall's residence or 100 feet of Hall's car. Shierling sought changes that would allow him to return to his own home while maintaining no contact with Hall. The appellate court affirmed the trial court's order, holding that Shierling had not presented evidence or arguments demonstrating an abuse of discretion. The decision noted that Shierling could file a future motion to modify if he could provide supporting evidence.

criminal lawprocedureproperty

In this case arising from a 2007 motor vehicle accident, McWilliams sued Belniak for wrongful death and personal injury while criminal charges for DUI manslaughter and related offenses were pending against Belniak. During a deposition, Belniak refused to answer questions about his alcohol use, healthcare providers, mental health treatment, insurance claims, and other topics, asserting his Fifth Amendment privilege against self-incrimination. The trial court issued an order compelling answers to specified categories of questions without addressing each one individually. On certiorari review, the appellate court quashed the order as overbroad because it required responses that could create a reasonable danger of incrimination and remanded for the trial court to evaluate the privilege claim on a question-by-question basis under applicable standards.

criminal lawproceduretorts & liability

Lee County sought certiorari review of a circuit court order that had quashed the county manager’s decision upholding the termination of employee Corey Sellers following an investigation into alleged racial discrimination and a hostile work environment. The employees had pursued a grievance process that included a hearing before a committee, which recommended upholding the termination, and the county manager then made a final decision to terminate Sellers. The circuit court had found jurisdiction to review the matter, concluding that Sellers was denied procedural due process and that the termination lacked competent substantial evidence. The appellate court held that the county manager’s decision was an executive action rather than a quasi-judicial one because the manager was not required to hold a hearing and had sole discretion to accept or reject the committee’s recommendation. Accordingly, the court granted the petition and quashed the circuit court’s order on the ground that certiorari review is unavailable for executive decisions.

labor & employmentprocedure