tag:blogger.com,1999:blog-5556257Sat, 08 Aug 2009 08:09:13 +0000The First Web Log Devoted To Florida Law and the Eleventh Circuit Court of Appealshttp://abstractappeal.com/noreply@blogger.com (Matt Conigliaro)Blogger4776125tag:blogger.com,1999:blog-5556257.post-3760959243705397100Thu, 06 Aug 2009 12:45:00 +00002009-08-06T08:47:21.414-04:00Congratulations to Indialantic's Judge Bruce Jacobus. Yesterday, Governor Crist appointed Judge Jacobus to the Fifth District. Judge Jacobus spent the last 14 years as a judge with the 18th Judicial Circuit. He takes the seat vacated when Judge Pleus retired. You can read the Governor's press release announcing the appointment here.http://abstractappeal.com/2009_08_01_abstractappeal_archive.html#3760959243705397100noreply@blogger.com (Matt Conigliaro)tag:blogger.com,1999:blog-5556257.post-6874458056438835926Thu, 06 Aug 2009 12:40:00 +00002009-08-06T08:46:08.415-04:00Can grandparents obtain primary residential responsibility over their grandchildren, better known as custody, without adopting them? Yes, explained the Fifth District in this decision, which involved a mother who consented to the placement and a father whose identity was allegedly unknown.http://abstractappeal.com/2009_08_01_abstractappeal_archive.html#6874458056438835926noreply@blogger.com (Matt Conigliaro)tag:blogger.com,1999:blog-5556257.post-2963478918622330884Thu, 06 Aug 2009 12:35:00 +00002009-08-06T08:44:36.205-04:00I recently posted on a Fifth District decision that seemed a bad way to win. Well, here we have a decision from the same court that seems like a great way to lose. The case involved a certiorari petition seeking relief from a trial court's order denying discovery. The order refused to permit the petitioner to obtain bias discovery regarding the respondent's treating physicians' involvement with http://abstractappeal.com/2009_08_01_abstractappeal_archive.html#2963478918622330884noreply@blogger.com (Matt Conigliaro)tag:blogger.com,1999:blog-5556257.post-2113958778546387217Thu, 06 Aug 2009 12:32:00 +00002009-08-06T08:38:59.473-04:00If you are interested in entrapment, take a look at this decision from the Fifth District. It is rather short but gives a good overview of the distinction between the objective entrapment test, which focuses on how the government official's conduct would affect a reasonable person, and the subjective entrapment test, which focuses on how the government official's conduct actually affected the http://abstractappeal.com/2009_08_01_abstractappeal_archive.html#2113958778546387217noreply@blogger.com (Matt Conigliaro)tag:blogger.com,1999:blog-5556257.post-8471531611086651050Thu, 06 Aug 2009 12:28:00 +00002009-08-06T08:38:17.997-04:00Whew. A couple of hard weeks of work just flew by. Thanks to the many who sent me comments on that last post. They were both entertaining and insightful.http://abstractappeal.com/2009_08_01_abstractappeal_archive.html#8471531611086651050noreply@blogger.com (Matt Conigliaro)tag:blogger.com,1999:blog-5556257.post-1317663474392368979Wed, 22 Jul 2009 13:50:00 +00002009-07-22T11:03:42.477-04:00My local paper, the St. Petersburg Times, has a notable story today on the front page of the local section. Using bullet points, it describes what a jury will not be told in a local trial that started yesterday. The story, which you can read online here, concerns a murder trial. More specifically, it concerns a murder retrial. The story points out that the jury will not be told of an earlier http://abstractappeal.com/2009_07_01_abstractappeal_archive.html#1317663474392368979noreply@blogger.com (Matt Conigliaro)tag:blogger.com,1999:blog-5556257.post-2957191993330967353Wed, 22 Jul 2009 13:19:00 +00002009-07-22T09:26:02.933-04:00Insurance fans may be very interested in this decision. The Fourth District reversed an order enforcing a settlement, holding that an insurer's response to a settlement demand constituted a counteroffer, not an acceptance, because the response contained a release that included objectionable, not "usual," terms. The court initially paraphrased the not "usual" terms as (1) a release of other http://abstractappeal.com/2009_07_01_abstractappeal_archive.html#2957191993330967353noreply@blogger.com (Matt Conigliaro)tag:blogger.com,1999:blog-5556257.post-5919249800487969916Wed, 22 Jul 2009 13:13:00 +00002009-07-22T09:19:49.653-04:00Under this decision from the Fourth District, you can add certificates of non-licensure from the Construction Industry Licensing Board to the list of non-testimonial hearsay items that can be admitted against a criminal defendant consistent with Crawford v. Washington.http://abstractappeal.com/2009_07_01_abstractappeal_archive.html#5919249800487969916noreply@blogger.com (Matt Conigliaro)tag:blogger.com,1999:blog-5556257.post-3807761716341177851Wed, 22 Jul 2009 13:10:00 +00002009-07-22T09:19:09.716-04:00To impose a habitual offender sentence, Florida law requires a pre-sentence investigation. That requirement is said to amount to a right to a PSI before being sentenced as a habitual offender. Can counsel waive that right, or is it the sort of right only the individual should be able to waive? In this decision, the Fourth District explained that counsel can waive the right to a PSI. In a http://abstractappeal.com/2009_07_01_abstractappeal_archive.html#3807761716341177851noreply@blogger.com (Matt Conigliaro)tag:blogger.com,1999:blog-5556257.post-8919772825406348046Fri, 17 Jul 2009 15:31:00 +00002009-07-17T11:36:55.055-04:00Appellate friends, is there such a thing as a bad win? If there is, then this decision released earlier today by the Fifth District might be an example. A criminal defendant appealed his convictions for tampering with physical evidence and resisting arrest without violence. The district court never reached the issues raised on appeal because the court determined the police illegally obtained thehttp://abstractappeal.com/2009_07_01_abstractappeal_archive.html#8919772825406348046noreply@blogger.com (Matt Conigliaro)tag:blogger.com,1999:blog-5556257.post-1382189867138142523Fri, 17 Jul 2009 15:28:00 +00002009-07-17T11:34:59.953-04:00A contract includes this language: "The parties consent to the exclusive jurisdiction of the courts located in New York City, USA." Is that forum selection provision permissive or mandatory? Mandatory, as Fifth District explained in this decision.http://abstractappeal.com/2009_07_01_abstractappeal_archive.html#1382189867138142523noreply@blogger.com (Matt Conigliaro)tag:blogger.com,1999:blog-5556257.post-2886824188298578776Fri, 17 Jul 2009 15:23:00 +00002009-07-17T11:34:34.844-04:00Construction fans should be interested in this decision. The Fifth District explained that while providing a final payment affidavit is a condition precedent to a statutory lien foreclosure claim, that condition can be waived where the defendant does not raise its failure with particularity in the answer.http://abstractappeal.com/2009_07_01_abstractappeal_archive.html#2886824188298578776noreply@blogger.com (Matt Conigliaro)tag:blogger.com,1999:blog-5556257.post-232417137144727910Fri, 17 Jul 2009 15:19:00 +00002009-07-17T11:34:04.143-04:00Does a police officer executing a search warrant for a home owe a duty of care to an occupant of the residence? Considering that a police officer's actions create a duty of care where the officer's conduct creates a foreseeable zone of risk to an individual or group, the question could be put in these terms: does a police officer create a foreseeable zone of risk to the occupants of a home by http://abstractappeal.com/2009_07_01_abstractappeal_archive.html#232417137144727910noreply@blogger.com (Matt Conigliaro)tag:blogger.com,1999:blog-5556257.post-6489319873812688031Fri, 17 Jul 2009 15:17:00 +00002009-07-17T11:31:51.964-04:00This decision from the Fifth District shows that a petition for writ of mandamus can be used to compel the reassignment of trial judges where the 30-day period to rule on a disqualification motion has expired without a ruling.http://abstractappeal.com/2009_07_01_abstractappeal_archive.html#6489319873812688031noreply@blogger.com (Matt Conigliaro)tag:blogger.com,1999:blog-5556257.post-7540542759547753271Fri, 17 Jul 2009 15:15:00 +00002009-07-17T11:31:11.680-04:00Concerned that a lesser standard could cross lines drawn by the First Amendment's free speech clause, the Fifth District in this case reversed a juvenile's disorderly conduct conviction because the juvenile's loud, profane words did not incite others to breach the peace or present an imminent danger to others.http://abstractappeal.com/2009_07_01_abstractappeal_archive.html#7540542759547753271noreply@blogger.com (Matt Conigliaro)tag:blogger.com,1999:blog-5556257.post-3196443825748074077Fri, 17 Jul 2009 15:10:00 +00002009-07-17T11:28:31.767-04:00When is exhibitionist behavior considered sexual violence? When applying Florida's Jimmy Ryce Act to keep sexually violent persons involuntarily committed, as the Fifth District explained in this decision.http://abstractappeal.com/2009_07_01_abstractappeal_archive.html#3196443825748074077noreply@blogger.com (Matt Conigliaro)tag:blogger.com,1999:blog-5556257.post-468126966504496002Fri, 17 Jul 2009 15:05:00 +00002009-07-17T11:27:58.695-04:00Family law practitioners may be interested in this reminder from the Fifth District that rule 12.490(f) requires courts to hold hearings on timely filed exceptions to magistrate reports.http://abstractappeal.com/2009_07_01_abstractappeal_archive.html#468126966504496002noreply@blogger.com (Matt Conigliaro)tag:blogger.com,1999:blog-5556257.post-260153415871959069Tue, 14 Jul 2009 12:55:00 +00002009-07-14T09:10:57.937-04:00This decision really caught my eye. The Fifth District denied an attorney's fees motion made by an insured in a certiorari proceeding. The insured lost the proceeding on grounds any error would be remediable on plenary appeal. In that context, the denial of fees was not remarkable -- a few years ago, the state supreme court confirmed that insureds must prevail on appeal to recover appellate http://abstractappeal.com/2009_07_01_abstractappeal_archive.html#260153415871959069noreply@blogger.com (Matt Conigliaro)tag:blogger.com,1999:blog-5556257.post-4606018639810726346Tue, 14 Jul 2009 12:50:00 +00002009-07-14T09:01:09.711-04:00Part of me constantly fears overlooked deadlines. That same part is always relieved to see decisions setting aside default judgments. This decision from the Fifth District does so, and it points out that reasonable misunderstandings originating from clerical errors can establish excusable neglect. The decision suggests that the appellee used some sharp tactics to obtain a default judgment and http://abstractappeal.com/2009_07_01_abstractappeal_archive.html#4606018639810726346noreply@blogger.com (Matt Conigliaro)tag:blogger.com,1999:blog-5556257.post-7584630962044247982Tue, 14 Jul 2009 12:39:00 +00002009-07-14T08:59:33.550-04:00Family law practitioners may be interested in this opinion. The Fifth District determined that the trial court improperly delegated its decisionmaking authority regarding visitation to one party's expert. The appellate court seemed more than a bit concerned that, without findings to support the decision, the final judgment forbid the former husband's current wife from being in the children's http://abstractappeal.com/2009_07_01_abstractappeal_archive.html#7584630962044247982noreply@blogger.com (Matt Conigliaro)tag:blogger.com,1999:blog-5556257.post-8681421258416365274Tue, 07 Jul 2009 11:01:00 +00002009-07-07T08:09:36.312-04:00Before delving into other recent decisions, I would like to return to last Thursday's mandamus decision by the Florida Supreme Court. The court faced a petition for a writ of mandamus filed by retired Judge Robert Pleus, formerly of the Fifth District. The petition asked the court to order Governor Crist to appoint Judge Pleus's successor from a list of nominees first certified to the Governor inhttp://abstractappeal.com/2009_07_01_abstractappeal_archive.html#8681421258416365274noreply@blogger.com (Matt Conigliaro)tag:blogger.com,1999:blog-5556257.post-6692457634576520864Thu, 02 Jul 2009 15:11:00 +00002009-07-02T11:44:11.698-04:00Today, the Florida Supreme Court issued this decision, which holds that Governor Crist must select district court of appeal judges within 60 days of receiving a list of nominees from the Judicial Nominating Commission. The court granted a petition by Senior Judge Robert Pleus to require the Governor to select a Fifth District judge from a list originally submitted to him on November 6, 2008. Thehttp://abstractappeal.com/2009_07_01_abstractappeal_archive.html#6692457634576520864noreply@blogger.com (Matt Conigliaro)tag:blogger.com,1999:blog-5556257.post-7854627548134951118Thu, 04 Jun 2009 11:25:00 +00002009-06-04T07:30:08.577-04:00Florida's appellate courts can and should raise the issue of subject matter jurisdiction when the parties ignore or overlook it. Recently, the Fifth District has issued two decisions that, sua sponte, delve into that area. One is rather simple. The other is simply significant. This decision shows that the inquiry can extend to where the jurisdictional flaw lies at the case's inception in the http://abstractappeal.com/2009_06_01_abstractappeal_archive.html#7854627548134951118noreply@blogger.com (Matt Conigliaro)tag:blogger.com,1999:blog-5556257.post-4934442958356069066Thu, 04 Jun 2009 11:10:00 +00002009-06-04T07:21:56.393-04:00In the second of two arbitration decisions that the Fourth District released last week, available here, a divided court affirmed a waiver determination. The majority opinion is just over four pages long and includes three footnotes that were nearly as long as the opinion's text. The court ultimately affirmed the trial court's waiver decision based on a view combining the defendant's pre-suit andhttp://abstractappeal.com/2009_06_01_abstractappeal_archive.html#4934442958356069066noreply@blogger.com (Matt Conigliaro)tag:blogger.com,1999:blog-5556257.post-1041354812664389512Thu, 04 Jun 2009 11:02:00 +00002009-06-04T07:11:03.629-04:00In the first of two arbitration decisions released last week by the Fourth District, the court held that a "mere attempt to settle a dispute outside the courtroom" does not establish a waiver of the right to arbitrate. The decision is available here.http://abstractappeal.com/2009_06_01_abstractappeal_archive.html#1041354812664389512noreply@blogger.com (Matt Conigliaro)