Archive for December, 2010

Third District: Interest on Tax Deed Purchases

If a person purchases a tax deed and the sale is later canceled based on the owner’s lack of notice, is it a due process violation to require the owner to pay the purchaser the statutory interest rate (which happens to be 12 percent) on the amount paid to purchase the tax deed?

No, said the Third District in this case.

It remains to be seen whether the owner has any claim to recoup the interest paid from the clerk of court for failing to serve the owner with proper notice of the tax deed sale in the first instance.

Third District: Certiorari, Vouching Limits

Under rule 2.515(a), an attorney may be required to supply a client’s address and vouch for the attorney’s authority to represent the party. Does that rule permit a trial court to order an attorney to disclose the names of a corporate defendant’s shareholders or beneficial owners? No, said the Third District in this decision, which quashed such an order with a writ of certiorari.

Certified Conflict, Question: Termination of Parental Rights

Death is different, or so the saying goes. It bears out in this termination of parental rights decision, where the Second District certified conflict with another district and certified the following to the state supreme court as a question of great public importance:

WHERE THE STATE PROVES BY CLEAR AND CONVINCING EVIDENCE THAT A PARENT HAS COMMITTED ANY OF THE ACTS SET FORTH IN SECTION 39.806(1)(H), FLORIDA STATUTES (2008), MUST THE STATE ALSO PROVE THAT THE PARENT POSES A SUBSTANTIAL RISK OF SIGNIFICANT HARM TO THE OTHER CHILDREN WHO ARE THE SUBJECT OF A PETITION FOR TERMINATION OF PARENTAL RIGHTS?

The case involved two parents, one whom the trial court found to have caused a child’s death, and the other whom the trial court found to have helped protect the father. The Second District held that, to terminate a parent’s rights to one child where a parent has murdered another child, the state need not prove a substantial risk of significant harm to the present child or that the parent would not benefit from court-ordered services.

Immediate Certification re Jimmy Ryce — Help

Pass-through certifications by the district courts of appeal are rare. Pass-through certifications on the district court’s own motion are rarer still, and yet we appear to have just such a certification here, from the Second District.

The case involves an appeal from a DeSoto County circuit court’s denial of Ronald Morel’s emergency petition for habeas corpus relief. The state initiated a proceeding against Morel in Broward County in 2002 under Florida’s Jimmy Ryce Act. That act permits the state to confine those who present a threat of committing violent sexual offenses. Morel was moved to Arcadia, in DeSoto County, where the state detains all persons awaiting Jimmy Ryce trials.

Eight years have passed, and Morel has not received his trial or any treatment under the act. The state apparently takes the position that it has no duty to treat detainees awaiting trial and has no duty to speed the circuit court’s resolution of the pending petition. Making the situation even more difficult, and giving rise to the certification, is uncertainty over how a detainee such as Morel can obtain relief. Habeas corpus petitions are filed in the circuit court where a person is detained, and orders on such petitions are reviewed by the district court overseeing that local circuit court. Here, however, the commitment proceeding persists in Broward County, and it is unclear that the DeSoto County circuit court could order any relief that would result in his case being advanced in Broward. Making matters worse, Jimmy Ryce detainees from cases outside DeSoto County often have appointed counsel in the Jimmy Ryce proceeding but no representation in DeSoto. Morel is pro se.

The district court noted that Jimmy Ryce proceedings involve a 30-day speedy trial right, but that once that right is waived, the cases seem to take years. Here, eight years.

The district court appears concerned not only that Morel has apparently gone eight years without treatment or trial but that the jurisdictional authority of any court to provide any relief is unclear. Accordingly, the district court certified the case to the state supreme court for immediate resolution.

I would expect a few positive things to come from the Second District’s order. It may draw the media’s attention toward situations like Morel’s, where those accused of being likely future sexual offenders are incarcerated for incredible periods of time without being found to fit that bill. It may draw the legislature’s attention, and some statutory fixes to the present system are arguably in order. Finally, and of course, it should draw a response from the state supreme court, which can indirectly encourage the media’s and the legislature’s attention and can lend some jurisdictional certainty to how these matters should be handled.

Second District: Child Abuse

A father was convicted of criminal child abuse under section 827.03(1). The child, who was 9, testified that his father had his hand on the boy’s hair, pressed his knee against the boy’s back while holding him, and at one point shook him. Other evidence suggested that the father may have twisted the boy’s arm, but without any bruising or otherwise visible injury. These events occurred during a domestic quarrel involving the boy’s mother.

The question arises: do those acts constitute criminal child abuse under the statute?

In this case, the Second District said no. Because chapter 827 does not define many key concepts, the district court looked to chapter 39 — a chapter relating to children — for guidance. The court concluded that, for purposes of section 827.03(1), a physical injury requires something more than mild or passing discomfort, and a mental injury requires an impairment of a child’s ability to function within the normal range of performance and behavior. Neither occurred here, and so the district court ordered the father discharged for that offense.

Perhaps sensing issues down the road, Judge Altenbernd authored a concurrence pointing out that the appellate courts should not always be expected to use chapter 39 to lend meaning to chapter 827’s proscriptions.

Second District: Alimony

Family law fans may be interested in this decision, where the Second District questioned a trial court’s award of permanent periodic alimony as perhaps containing an illegitimate savings component. The award accounted for one spouse’s possible future purchase of what could be considered an investment home.

Certified Question: Jimmy Ryce

In this decision, the Second District certified the following to the state supreme court as a question of great public importance:

DOES THE STATE HAVE JURISDICTION TO INITIATE CIVIL COMMITMENT PROCEEDINGS UNDER THE INVOLUNTARY CIVIL COMMITMENT OF SEXUALLY VIOLENT PREDATORS ACT AGAINST AN INMATE WHO IS ENTITLED TO IMMEDIATE RELEASE BASED ON A CORRECTED AWARD OF GAIN TIME?

A majority answered this question in the negative. Judge Altenbernd authored a partial dissent.

First District: Engle Progeny Affirmance

This new opinion is being widely circulated. In the first Florida appellate court decision to consider how jury findings from the original Engle class action proceedings can be used in later, so-called progeny cases, the First District affirmed a trial court’s decision allowing the plaintiff in a tobacco-related wrongful death case to utilize the earlier findings. In so holding, the court disagreed with portions of the Eleventh Circuit’s decision in this case, which took a more limited view of how the earlier findings could be used.

The decision also rejected excessiveness challenges to the $25 million punitive damages award entered in the case.

Second District: Certiorari, Confession of Error Rejected

If anyone tells you that a confession of error is dispositive in an appellate court, point them to this case. The Department of Children and Families sought certiorari review of an order vacating a mother’s consent to her children’s dependency. The mother never appeared and the children’s guardian ad litem confessed error, but the Second District nonetheless dismissed the petition, holding that it failed to demonstrate the irreparable harm necessary for certiorari relief.

It might be worth a little emphasis that the confession of error did not come from the mother.

Second District: Mistaken Satisfaction

If the holder of a note executes a satisfaction but does so by mistake, does the debt become uncollectable? Not necessarily, as the Second District’s decision in this case shows. The satisfaction can be rescinded or reformed.

Second District: Hearsay, Vehicular Style

Evidence fans: Assume a law enforcement officer testifies that he ran a vehicle’s identification number through his in-car computer link to the state’s vehicle database and that the system’s database indicated the vehicle “wasn’t properly registered.” The defendant objects on hearsay grounds. Is the testimony inadmissible hearsay?

It was in this decision from the Second District.

Here’s another, from the same case. To support a charge of unlawful use of a temporary tag, the same officer testifies to the expiration date shown on the temporary tag on the defendant’s car. Inadmissible hearsay?

Yes again, said the district court.

Second District: Let Him Plead

Those familiar with the post-conviction process know that prisoners often file long, unclear, and messily handwritten motions for relief. This decision from the Second District dismissed a post-conviction appeal as premature but paused to observe that the circuit court’s dismissal without prejudice appeared neither efficient nor effective. The motion was lengthy, but it was typed, contained record excerpts, and was based on the standard form.

















































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