Vincent G. Torpy jr

The case concerned a defendant's challenge to his convictions for attempted burglary of a dwelling and resisting an officer without violence after he was apprehended with certain items shortly following an incident in which a perpetrator entered a home through an open window but took nothing. The appellate court reversed the attempted burglary conviction, finding that the trial court had erred by admitting evidence of a duffle bag and its contents along with items found on the defendant, because no connection was shown between those items and the charged crime. It affirmed the resisting arrest conviction on the basis that the evidentiary error was harmless with respect to that charge. The court rejected the defendant's argument that a judgment of acquittal was required.

criminal lawprocedure

The case involved an uninsured/underinsured motorist insurance claim by Robin Curran against State Farm after she was injured in a traffic accident and settled with the underinsured driver. State Farm sought to schedule a compulsory medical examination under the policy terms but the parties exchanged letters with objections over the doctor, location, timing, and a requested waiver of future exams; Curran did not attend the scheduled exam and filed suit. The court held that Curran breached the policy by failing to attend the exam and suing before compliance, but this breach did not bar coverage because State Farm suffered no prejudice. The decision affirmed the $100,000 judgment for Curran based on the lack of prejudice to the insurer despite the contractual violation.

business & regulatoryprocedure

In Payne v. State, the appellant was convicted of first-degree murder and shooting into an occupied vehicle based on a 2004 drive-by shooting, with identification primarily from a witness whose prior statements had contradicted the trial testimony and other evidence that included potential bias from a state witness. After an initial denial of postconviction relief was reversed for an evidentiary hearing, the trial court again denied claims of ineffective assistance of counsel for failing to call certain witnesses and newly discovered evidence including a recantation by another participant. The appellate court reversed, holding that counsel's deficient performance in omitting available testimony was prejudicial and that the recanted testimony, when viewed in totality with the trial record and other evidence, was sufficiently reliable to warrant a new trial. The case was remanded for further proceedings.

criminal lawprocedure

This case involves an appeal from a collateral attack on a 2008 foreclosure judgment, where the appellants' counsel sought to withdraw their representation after over a year. The court considered motions from multiple attorneys, including a notice that failed to request permission or state reasons, and another citing vague "irreconcilable differences" without proper service. The court denied the motions to withdraw because they did not comply with Florida Rule of Appellate Procedure 9.440(b), the reasons were insufficient given the advanced stage of the appeal, and no further withdrawal requests would be entertained as a merits decision is imminent.

propertyprocedure

In Marshall v. State, the defendant was convicted of charges stemming from a drive-by shooting in which the victim identified him as the driver who shot at the victim. The defendant appealed after the trial court prevented him from impeaching the victim with a prior inconsistent statement made to the prosecutor, ruling that the prosecutor's testimony about the statement would be inadmissible hearsay. The appellate court reversed and remanded for a new trial, holding that a witness's prior inconsistent statement is admissible for impeachment purposes and is not hearsay because it is not offered for its truth. The court found the issue was preserved despite the lack of a formal proffer of the prosecutor's testimony and concluded the error was not harmless given that the case rested primarily on the victim's identification amid other inconsistencies in his account.

criminal lawprocedure

This case arose from an appeal challenging the trial court's dismissal of one count in a multi-count complaint, which the appellate court affirmed per curiam without opinion after determining the pleading defects could not be cured. In response, the appellant's counsel filed a motion for rehearing or certification to the supreme court that included emotional statements, lacked record citations, made unsupported factual assertions, and failed to identify overlooked facts, legal conflicts, or certifiable issues. The appellees moved for sanctions based on the motion's impropriety. The court denied the motions and entered an order directing the appellant's counsel to appear and show cause why sanctions should not be imposed under Florida Rule of Appellate Procedure 9.410 and section 57.105, Florida Statutes, for violating rules governing rehearing motions and professional conduct.

procedure

In RP v. Department of Children and Families, the appellant challenged a lower court order terminating their parental rights, arguing that the evidence was insufficient and that termination was not the least restrictive means of protecting the child. The appellate court affirmed the termination order, rejecting both contentions on the merits. It addressed the sufficiency argument despite potential preservation issues, aligning with the Fourth District's precedent in H.D. v. Department of Children & Families while noting an apparent conflict with the First District's decision in J.D. v. Department of Children & Families.

family law

The case concerned whether a defendant on community control violated its terms by driving with a suspended license, where the suspension resulted from failure to pay court-ordered restitution under a payment plan. The trial court found a violation after the state introduced the defendant's driving record showing that notice of suspension had been mailed to her correct address. The appellate court affirmed, holding that under section 322.251(2), Florida Statutes, the entry in the DHSMV records reflecting that notice was mailed constitutes sufficient proof that notice was given, creating a fact issue on the knowledge element that the trial court resolved against the defendant. The court rejected the argument that actual receipt must be proven, distinguishing or declining to follow contrary precedent from other districts that did not apply the statute.

criminal law

In Price v. State, the petitioner sought a belated appeal after his trial counsel allegedly gave incorrect advice that a successful appeal of his third-degree felony conviction could result in retrial on more serious charges, leading him to waive his appeal rights. The petitioner argued this constituted ineffective assistance of counsel and filed for relief in the appellate court. The State did not dispute the factual allegations or the erroneous nature of the advice. The court granted the petition, holding that the claim was properly raised in this proceeding rather than requiring a separate rule 3.850 motion, and directed that the opinion serve as the notice of appeal.

criminal lawprocedure

This case involved a dispute over mortgage priority on a property where the first-recorded mortgage contained a scrivener's error misidentifying the plat page number as page three instead of page eight, while correctly naming the owner, lots, subdivision, and plat book. The second mortgage holder claimed superior priority due to lack of constructive notice from the error, and the trial court granted summary judgment in her favor, subordinating the first mortgage in the foreclosure action. On appeal, the court reversed, holding that the mortgage provided sufficient constructive notice to establish the first mortgage's priority. It relied on prior precedents indicating that such a minor discrepancy does not defeat the recording's effectiveness.

property

This case involved Orange County and its servicing agent seeking to enforce a workers' compensation costs award of $2,594.97 against a former firefighter through a petition for rule nisi in circuit court under section 440.24(1), Florida Statutes, after prevailing before the Judge of Compensation Claims. The trial court denied the petition for lack of jurisdiction, and the appellate court affirmed. The core reasoning was that section 440.24(1) expressly provides the expedited enforcement remedy only upon default by an employer and is unambiguous in affording no reciprocal right to employers or carriers, despite a 2003 amendment allowing prevailing parties to recover costs; the court declined to rewrite the statute via in pari materia construction with section 440.34(3) or on constitutional grounds, noting that alternative enforcement remedies remain available in courts of appropriate jurisdiction.

labor & employmentprocedure

The case involved a dispute over entitlement to attorney's fees after the appellant prevailed in a breach of contract action arising from a residential lease agreement following the sale of a home. The trial court denied fees under both a contractual theory based on the sale agreement and a statutory theory under section 83.48, Florida Statutes, reasoning that the lease agreement's silence on fees precluded recovery. The appellate court affirmed the denial of contractual fees but reversed on the statutory claim, concluding that the statute provides an independent basis for awarding fees to the prevailing party that does not depend on a contractual provision. A dissent argued that the court lacked jurisdiction because the order was interlocutory, as statutory fees are treated as costs and review should await a final costs order.

procedureproperty

In Brown v. State, the appellant challenged his convictions for resisting an officer with and without violence, arguing that the trial court erred in denying a special jury instruction on the right to resist an unlawful detention and that double jeopardy barred both resisting convictions. The court affirmed the denial of the proposed special instruction, concluding it was not an abuse of discretion because the standard jury instructions properly required the state to prove the officer was engaged in the lawful execution of a legal duty and that the proposed language risked improperly directing the jury's verdict. The court reversed the conviction for resisting without violence, finding it violated double jeopardy. The core reasoning was that lawfulness of police conduct is an element for the jury to decide by applying facts to the law, but courts must give accurate legal guidance through standard instructions without usurping the jury's role or inviting nullification.

criminal lawprocedure

This case involved a dispute over a construction lien recorded against property owned by KA Properties, LLC, after USA Construction, Inc. performed work. The property owner petitioned to discharge the lien under section 713.21(4), Florida Statutes, after serving a summons requiring the lien claimant to show cause within 20 days why the lien should not be enforced or canceled. The court granted the petition and directed the trial court to discharge the lien. It reasoned that strict compliance with the statute is required, and the claimant failed to do so because its initial response did not address why enforcement should not proceed, and its counterclaim was filed late at 29 days after service.

propertyprocedure

The case concerned whether police had reasonable suspicion to stop a vehicle in which James Earl Jackson was a passenger, based on an anonymous tip and information from a bail bondsman that a wanted felon with outstanding arrest warrants might be inside. The trial court denied Jackson's motion to suppress evidence of a gun found during the stop, and the appellate court affirmed. The majority held that under the totality of the circumstances—including surveillance of a house linked to the suspect, the bondsman's report of a car leaving hurriedly, and the deputies' belief that the suspect was present—the stop was justified. The dissent argued that the information was too scant and unsubstantiated to support reasonable suspicion, distinguishing it from precedents like State v. Lopez.

criminal lawcivil rights

In this criminal case involving allegations that a man molested his girlfriend's eleven-year-old daughter at a lake house, the trial court ruled the now thirteen-year-old victim incompetent to testify after finding that law enforcement officers' improper and suggestive questioning had tainted her recollection. The appellate court granted the state's petition for review and quashed the order barring her testimony. The court explained that testimonial competency turns on a witness's intellectual capacity to recall and communicate facts and to understand the obligation to tell the truth, not on the reliability or credibility of what the witness might say. It held that any effect of suggestive questioning is a factor bearing on credibility that the jury should assess at trial rather than a basis for a pretrial finding of incompetence.

criminal lawprocedure

In Brown v. State, the appellant was convicted of four counts of felony petit theft after a police officer, during a traffic stop for outstanding warrants, searched his vehicle without a warrant and found wallets belonging to elderly women. The court upheld the trial court's denial of the motion to suppress the evidence from the search. It reasoned that the search was lawful under Arizona v. Gant as a search incident to arrest because the officer had reason to believe the vehicle contained evidence of the theft crimes for which the appellant was arrested, even though he was handcuffed and secured in a patrol car. Alternatively, the court held that the evidence would be admissible under the good faith exception because the officer relied on the then-prevailing rule from New York v. Belton.

criminal lawprocedure

The case involved a father challenging an order terminating his parental rights to his two children after he failed to appear in person at the final adjudicatory hearing on the Department of Children and Families' petition alleging abandonment. The trial court entered a default consent to termination based on his absence and proceeded without him or his attorney. The appellate court reversed the order and remanded for a hearing on the merits. It held that the trial court failed to comply with the statutory requirement under section 39.801(3)(d) to advise the parent at the status hearing of the consequences of nonappearance, and instead suggested that counsel could appear in his place. The court further reasoned that default was improper where the father had notified the court of his inability to travel due to health and financial issues, making reasonable efforts to participate.

family law

This case involved a payment dispute in which a mechanical subcontractor sued a construction contractor (a joint venture) and its surety after completing work on a project. The appellate court dismissed the portion of the appeal concerning the contractor because a related counterclaim remained pending, making the judgment non-final as to that party. It affirmed summary judgment in favor of the surety, holding that a sworn document executed by the subcontractor after its work was complete unambiguously acknowledged full payment for all contract work, including changes and extras, and released all related claims. The subcontractor offered no facts or legal theory that would prevent enforcement of the document's clear terms. The court also noted that a proposed amendment to the pleadings would have been futile.

business & regulatoryprocedure

This case involved disputes between State Farm and its policyholders over the timing of payments for subsurface sinkhole repairs under homeowners' insurance policies. State Farm argued it could withhold payment for such repairs until the homeowners entered into repair contracts, based on a Florida statute, while the policyholders contended that the policy required payment within 60 days of an appraisal award. The court ruled in favor of the policyholders, affirming that payment was due within 60 days. The reasoning was that the statute was permissive rather than mandatory, allowing the policy language to control without conflict.

business & regulatoryproperty