Abstract Appeal -- by Matt Conigliaro

Wednesday, August 31, 2005

Oh Me Oh My Oh...

In the two years I've been keeping this blog, I've think I've done a pretty good job of staying on point and not turning this site into a soapbox for thoughts on all sorts of random subjects.

I'll be honest: I'm having trouble focusing at the moment.

In 1992, I moved to New Orleans to attend Tulane Law School. I spent three incredible years there. I received an excellent legal education, made wonderful friends, met Debbie, and generally had a thoroughly enjoyable time appreciating the wonderment that is the Big Easy. We played sports and cooked out down at the levee behind Audubon Park. We did things up right for Mardi Gras. We made lots of late night trips to the French Quarter, where there's music for every mood, every night.

Students at Tulane and Loyola Law School occupy a great number of the western uptown homes. We were everywhere. It was like having our own corner of the city. We walked every place, or took the streetcar. We learned all of the local spots, not to mention the popular tourist spots. I externed for a federal judge downtown and used to ride the streetcar to work, rain or shine.

Considering that we were students living on graduate school loans, which left us penny poor, we made the most of what the city had to offer.

The notion of all we knew being gone -- gone -- is difficult to take. It's unthinkable.

The ironic thing is that folks in New Orleans regularly discussed the sort of cataclysmic destruction we are seeing now. It was well understood that a direct hit by a big storm could send Lake Ponchartrain into the city. The levees couldn't be expected to survive. Of course, folks had these discussions much in the same way I suspect those in San Francisco discuss "the big one" -- if it ever happens, it'll be so bad, so terrible, that it's just not worth worrying about.

Now everyone's worried. And ill. The pictures and video coming out of New Orleans and the Mississippi coast are almost too much to bear.

Godspeed to those going to help, to those still needing to get out, and to those who have lost perhaps everything.

...posted by ⊥ 12:22 PM ⊥ #

Tuesday, August 30, 2005

Katrina: Aid, And Legal Aid

A friend in New Orleans tells me that the city is still taking on water. He's asked me to post a link or two to some aid organizations.

The American Red Cross is mobilizing its largest natural disaster response ever:

Likewise, Catholic Charities USA is mobilizing to provide long-term recovery efforts throughout the affected region:

If anyone is aware of any legal aid initiatives, please let me know. This is a legal blog, and I think it would be helpful to mention legal service efforts in which attorneys might be able to participate.

...posted by ⊥ 10:45 AM ⊥ #

Katrina Tragedy

I'm speechless. Godspeed to those moving in to help.

...posted by ⊥ 8:03 AM ⊥ #

Fourth District: Florida Trial Court Motion Practice

Here is a case that I will keep handy for my out-of-state attorney friends who participate in Florida litigation from time to time.

In the context of a prisoner's effort to get a post-conviction motion heard, the Fourth District explained how, in Florida, trial courts generally do not act when a document is filed. In fact, trial courts rarely have any idea that the clerk's office has received a particular document. Florida trial courts act when a party calls a document to the judge's attention, usually by setting the matter for a hearing time before the judge.

...posted by ⊥ 7:54 AM ⊥ #

Third District: Class Action

The Third District wholly agreed with the trial court's decision in this case not to certify a class action against an auto manufacturer. The plaintiff claimed he paid too much for his sport utility vehicle because he was unaware of its rollover potential.

...posted by ⊥ 7:51 AM ⊥ #

Third District: Late Briefing

The district courts continue to emphasize that appeals into circuit court can only be dismissed for failure to file a timely initial brief under severely limited circumstances. This decision from the Third District is just the most recent decision quashing a circuit court's dismissal order.

...posted by ⊥ 7:48 AM ⊥ #

Third District: Rule 3.850

Just a reminder here from the Third District to trial judges. When an evidentiary hearing is held on a Rule 3.850 motion, the trial court should make findings and conclusions explaining its resolution of the motion.

...posted by ⊥ 7:47 AM ⊥ #

Monday, August 29, 2005

Back In Blog

And it's good to be back. Last week was rough for posting, as work had me going around the clock for several days.

I spent much of the weekend keeping track of how New Orleans would likely fare through Hurricane Katrina. In 1992, I was a 1L at Tulane Law School when Hurricane Andrew headed across South Florida and entered the Gulf headed straight for the Big Easy. I recall very well the atmosphere in the city as it prepared for a possible direct hit. Most of my classmates left town. I stayed, which made for a bit of an adventure. Fortunately, Andrew missed the city.

Right now, it looks like Katrina will not directly hit the city either. Whew.

I hope everyone in Katrina's path stays safe.

...posted by ⊥ 8:02 AM ⊥ #

Third District: Forum Selection Clauses

If you're interested in the enforceability of forum selection clauses, check out this decision from the Third District. The court rejected a plaintiff's argument that a clause requiring litigation in Spain should not be enforced.

In an effort to avoid the clause, the plaintiff relied on the likely length of litigation in the Spanish court system (estimated at 6-7 years) and difficulties in obtaining counsel willing to work on a contingency fee arrangement.

The court held that so long as the chosen forum is available, the clause should be followed.

...posted by ⊥ 7:52 AM ⊥ #

Third District: Guardians Ad Litem

Those interested in guardians ad litem will want to check out this decision from the Third District. The court affirmed a trial court's decision to compensate a court-appointed guardian ahead of counsel in a dissolution case. The trial court appointed the guardian to advise on parenting issues.

The district court's decision reflects some skepticism about the guardian's utility in the case, as well as the amount of the guardian's fees. Ultimately, the court held that counsel would be permitted to challenge the reasonableness of those fees.

...posted by ⊥ 7:50 AM ⊥ #

First District: Judicial Bypass

This decision from the First District offers a brief look at the expeditious judicial process used by minors who wish to terminate their pregnancies without notifying a parent.

...posted by ⊥ 7:47 AM ⊥ #

Second District: Credentialing Committees

If you're keeping track of recent case law on credentialing committee discovery, you may recall this decision released earlier this month by the Fifth District, where the court granted a certiorari petition and quashed a discovery order requiring a hospital to disclose the identities of persons on its credentialing committee.

Even more recently, this recent decision by the Second District denied a petition to quash an order requiring disclosure of a "Credentials Privilege List."

Are those decisions consistent? From the hospitals' point of view, probably not.

...posted by ⊥ 7:40 AM ⊥ #

Questions, questions: Juvenile Costs

In this case, the Second District certified the following to the Florida Supreme Court as a question of great public importance:

DOES A TRIAL JUDGE HAVE THE POWER AND AUTHORITY TO IMPOSE ON JUVENILES IN A JUVENILE DELINQUENCY PROCEEDING THE MANDATORY SURCHARGES SET FORTH IN SECTIONS 938.08 AND 930.085?

The Fifth District certified the same question several months ago in this case.

...posted by ⊥ 7:38 AM ⊥ #

First District: Nondelegable Duties

Do school districts in Florida have nondelegable duties to provide transportation services to students? No, said the First District in this case.

...posted by ⊥ 7:35 AM ⊥ #

Second District: Drug Evidence

A simple evidentiary pointer here from the Second District: a witness's drug use is admissible for impeachment purposes when it may have affected the witness's ability to perceive events.

...posted by ⊥ 7:33 AM ⊥ #

First District: Criminal Jury Instructions

Just a reminder here from the First District that instructing a jury on a criminal theory not charged in the operative indictment constitutes fundamental error.

...posted by ⊥ 7:30 AM ⊥ #

Friday, August 26, 2005

And Still...

Two of three projects needing to go out the door since yesterday are done and gone, but the third one has unexpectedly consumed me. I'll be back here as soon as I can -- there are many interesting cases to discuss.

...posted by ⊥ 8:12 AM ⊥ #

Thursday, August 25, 2005

Still Abstract, Still Pausing

I'm not really pausing... I'm editing, editing, editing. Posts to follow.

...posted by ⊥ 1:57 PM ⊥ #

Abstract Pause

Only slightly delayed posting this morning while I finish something up...

...posted by ⊥ 8:22 AM ⊥ #

Wednesday, August 24, 2005

Florida State Seminoles

That's what they are, and that's what they'll stay.

Yesterday, the NCAA announced that it was reversing its controversial decision to prohibit Florida State from using the Seminoles' name and indicia in post-season events. Apparently the paternal organization decided that the Seminole Tribe of Florida's viewpoint -- the tribe supports the school's practices -- means something. Actually, it seems the tribe's view now means everything, and so long as the tribe supports the school, the NCAA has no problem with Seminole Nation referring to more than the tribe's members.

Read about it all here in today's Tallahassee Democrat.

Great job, Mr. Wetherell.

...posted by ⊥ 7:22 AM ⊥ #

Eleventh Circuit: Eleventh Amendment

Are community colleges in Florida arms of the state? If so, then they share the state's Eleventh Amendment immunity and cannot be sued in federal court.

In this wonderfully terse case, the Eleventh Circuit gave us the answer.

...posted by ⊥ 7:15 AM ⊥ #

Eleventh Circuit: Title VII

Employment fans will appreciate this Title VII decision from the Eleventh Circuit. Examining the timely-filing requirement as it applied to an Alabama woman's disparate pay claim and the evidence she could rely upon to prove discriminatory conduct, the court treaded some new ground:

[A]t least in cases in which the employer has a system for periodically reviewing and re-establishing employee pay, an employee seeking to establish that his or her pay level was unlawfully depressed may look no further into the past than the last affirmative decision directly affecting the employee’s pay immediately preceding the start of the limitations period. Other, earlier decisions may be relevant, but only to the extent they shed light on the motivations of the persons who last reviewed the employee’s pay, at the time the review was conducted.

The court ultimately reversed the judgment against the employer.

...posted by ⊥ 7:13 AM ⊥ #

Eleventh Circuit: Immigration and Subject Matter Jurisdiction

Those interested in situations where Congress has eliminated the federal circuit courts' authority to hear certain appeals may wish to check out this decision from the Eleventh Circuit. The court dismissed an appeal from a Board of Immigration Appeals decision. The appellant had been convicted of a crime of moral turpitude, and Congress has precluded the circuit courts from hearing appeals in such situations.

...posted by ⊥ 7:05 AM ⊥ #

Tuesday, August 23, 2005

Constitutional Cafeteria: Words Count

Next year's election looks to be a gem for interesting stories on proposed citizens' initiatives. Initiative sponsors are circulating dozens of petitions around the state, each trying to find enough support to qualify their proposed constitutional amendments for the November 2006 ballot.

Unfortunately, mistakes happen. Take this story from today's St. Pete Times, which relates how this petition concerning redistricting has a ballot summary with 81 words. That's a problem because Florida law requires ballot summaries for citizens' initiatives to be 75 words or fewer.

Say goodbye to that petition. For now.

...posted by ⊥ 8:48 AM ⊥ #

Eleventh Circuit: Insurance

Insurance fans may be interested in this decision, where the Eleventh Circuit interpreted a general commercial liability policy's sexual misconduct exclusion under Florida law. Florida courts have not yet issued a decision interpreting that exclusion.

The decision is noteworthy for its analysis of the sexual misconduct exclusion under the tragic facts at issue, for affirming the district court's decision to hear the declaratory judgment case in the absence of Florida case law regarding the exclusion, and for its broad application of the term "occurrence" under the facts of the case.

...posted by ⊥ 8:16 AM ⊥ #

Eleventh Circuit: Products Liability and Experts

Products liability fans will be interested in this decision from the Eleventh Circuit, where the court reversed a judgment in favor of Toyota because the trial court's defective design instruction mentioned only the risk-utility test and omitted the consumer expectations test. The circuit court explained that, under Florida law, the consumer expectations test is proper as an independent basis for design defect liability "when the product in question is one about which an ordinary consumer could form expectations."

For those interested in expert witness decisions, the court also upheld the trial court's exclusion of an expert witness on grounds the testimony was cumulative.

...posted by ⊥ 8:07 AM ⊥ #

Eleventh Circuit: Employment

Can a "constructive transfer" by a public employer qualify as an adverse employment action for purposes of a qualified immunity analysis? The Eleventh Circuit considered that question in this case.

...posted by ⊥ 7:55 AM ⊥ #

Monday, August 22, 2005

Gay Marriage Proposal

You may know that there's a significant effort underway to include a gay marriage prohibition in the Florida Constitution. The St. Pete Times ran this story on the subject over the weekend. If the proposal gets enough signatures, the Florida Supreme Court will review it for compliance with the procedural requirements for proposed amendments, and Florida's voters will vote on the proposal in the November 2006 election.

You can read the proposal's text and ballot summary here.

Anyone out there recall my rather well-received November 2004 post on issue baiting? I'm still waiting for that term to catch on. It will.

...posted by ⊥ 7:28 AM ⊥ #

Blogger Employees

This story from Law.com discusses employer liability for employees' web logs, with a focus on media blogs.

Are media blogs really unedited?

...posted by ⊥ 7:06 AM ⊥ #

Friday, August 19, 2005

Friday Florida Law Trivia Answer

I was surprised to see so many folks email me with the correct answer to today's question.

Yes, the Honorable E.J. Salcines serves not only as a judge on Florida's Second District Court of Appeal but also as an honorary vice consul to Spain.

Someone might let Judge Salcines know that his friends in the Tampa area didn't find this question very difficult.

...posted by ⊥ 4:52 PM ⊥ #

Friday Florida Law Trivia!

After a bit of a hiatus, the weekly trivia is making a comeback. Here is this week's installment:

Which Florida appellate judge also serves as an honorary vice consul to Spain?

I'll post the answer around 4:45 EDT today.

...posted by ⊥ 9:04 AM ⊥ #

Abstract Pause

Lots of work has me a bit tied up this past day, but I'll get a Friday Florida Law Trivia question posted in a few moments.

...posted by ⊥ 9:00 AM ⊥ #

Wednesday, August 17, 2005

Privacy Committee -- Final Report

The Florida Supreme Court created the Committee on Privacy and Court Records to examine how Florida's judicial system should address the confluence of (1) modern, Internet-based technology to deliver, instantaneously and cheaply, copies of judicial records, (2) the fact that judicial records are increasingly being filed and maintained in electronic format, and soon all judicial records will be stored only electronically, (3) the private nature of facts and allegations contained in some court records, and (4) Florida's constitutional and statutory requirements of public access to public records.

That's a paraphrase, of course. So is this bottom line question for the Committee's work: whether and which judicial records should be available electronically over the Internet.

The Committee's work has generated some interesting media attention.

From what I've seen, the Florida media generally seem to favor complete or near-complete Internet-based access to court records and to discount physical, courthouse-based access as impractical and outside the spirit, if not the letter, of Florida's public records laws. In other words, in the age of the Internet, merely making public records available at the courthouse steps is not consistent with, and perhaps not compliant with, Florida's broad public records laws.

It has been well known that some on the Committee agree with that view, or at least agree that Internet access is generally desirable except for certain types of records, while others on the Committee would rather see public court records remain available to the public at courthouses in whatever format but not instantaneously available to all over the Internet.

Ultimately, the matter is one of balancing personal privacy and public access.

Yesterday, the Committee released its final report and recommendations on how the judiciary should proceed. The report is a bit long, and the Florida Supreme Court has posted it in parts. Here they are:

Cover and Contents
Part 1
Part 2
Part 3
Part 4
Part 5

I'll have some discussion on the Committee's final recommendations once I get a chance to digest the report.

In the meantime, check out the AP story on the report's release here in today's Tallahassee Democrat.

...posted by ⊥ 8:32 AM ⊥ #

First District: 57.105 Fees

In this case, the First District affirmed a judgment against a plaintiff and affirmed a section 57.105 (2002) attorney's fees award in favor of the defendants.

On the merits, the First District agreed with another district's decision that, under the circumstances, the plaintiff loses.

But when explaining why the attorney's fees award was affirmed, the court stated only that the trial court was bound by the other district court's decision, which was the only Florida case on point. "Therefore," the First District held, the trial court properly awarded the defendant attorney's fees under section 57.105.

That another district had the only case on point surely explains why the trial court ruled against the plaintiff. It was required to do so. But whether the plaintiff should be assessed 57.105 fees would seem to turn on whether a good faith argument, and one offering a reasonable expectation of success, had been made that the other district reached an incorrect result -- something not mentioned in the First District's decision. A negative finding on that issue is perhaps implicit. Then again, perhaps the plaintiff did not challenge the other district's decision as incorrect but instead unsuccessfully argued it to be off point. Either way, interesting.

...posted by ⊥ 8:26 AM ⊥ #

Eleventh Circuit: Liberty Interests

Here is a question for those who regularly represent plaintiffs: is there a constitutional liberty interest in one's relationship with an adult child, so that where an adult dies as a result of a state government actor's actions, the person's parents can bring a federal claim against the state government for deprivation of that liberty interest? The Eleventh Circuit examined that question in this rather interesting case, which, surprisingly, was one of first impression for the court. The Eleventh Circuit held that no such interest exists under the federal constitution.

...posted by ⊥ 8:23 AM ⊥ #

Eleventh Circuit: Dormant Commerce Clause

Commerce Clause fans may be interested in this decision from the Eleventh Circuit. The court rejected an argument that a municipality's decision to require an exclusive waste collection contractor to bill residents for waste hauling services violates the Commerce Clause by forcing residents into a business transaction that excludes all other waste haulers. The district court had found that arrangement unconstitutional.

...posted by ⊥ 8:20 AM ⊥ #

Eleventh Circuit: Diversity

For an unusual application of the total activities test used to determine a business's citizenship for diversity purposes, check out this decision from the Eleventh Circuit.

...posted by ⊥ 8:15 AM ⊥ #

Eleventh Circuit: Tax

Tax fans may be interested in this offer-in-compromise decision from the Eleventh Circuit.

...posted by ⊥ 8:10 AM ⊥ #

Eleventh Circuit: Injunctions

The appellant in this case stipulated to, and affirmatively waived the right to appeal from, the entry of various injunctions against him. Nonetheless, because the injunctions were still before the district court (the case was being remanded on other grounds), the Eleventh Circuit noted that it would be remiss if it did not inform the district court that the injunctions were unenforceable. The Eleventh Circuit has repeatedly held that "obey the law" injunctions are not enforceable.

...posted by ⊥ 8:07 AM ⊥ #

Eleventh Circuit: Arbitration

Under the Federal Arbitration Act, is an arbitrator's order binding among the parties prior to being confirmed by a court? Yes, said the Eleventh Circuit in this case.

...posted by ⊥ 8:05 AM ⊥ #

Tuesday, August 16, 2005

Appellate CLE Reminder

Just a reminder to appellate folks out there that the Appellate Practice Section of The Florida Bar will hold its monthly CLE teleconference today at 12:10. Call-in details are available on the section's web page.

Today's CLE regards a common topic on Abstract Appeal: "The Pitfalls of Settlement Proposals." It's a common topic because the cases on this subject seem to flow on a weekly or monthly basis.

The presenter for today's program is Sonya Hoener, and I'm looking forward to it.

...posted by ⊥ 8:14 AM ⊥ #

Eleventh Circuit: Appellate Fees Bonds

This decision from the Eleventh Circuit should interest my fellow appellate lawyers.

The decision concerns when the appellate costs bond provision in Rule 7 of the Federal Rules of Appellate Procedure authorizes a district court to require a plaintiff appellant to post a bond that includes attorney's fees among the anticipated costs.

Determining that the term "costs" should be defined with reference to any applicable fee-shifting statute, and recognizing that 42 U.S.C. § 1988 was applicable in this particular case, the court held that a civil rights plaintiff can be required to post a costs bond that includes anticipated appellate attorney's fees only if the district court finds that the appeal is likely to be frivolous, unreasonable, or without foundation. The court confidently observed that "district courts will be able to assess prospectively appeals from the denial of relief in a civil rights case under a scale heavily tilted in favor of the plaintiff who wants to appeal."

The decision also offers some related insights, such as how dictum that explicates a holding might differ from "oh-by-the-way dictum" and how Rule 38 is, in most cases, "a toothless tiger."

Those studying for future installments of the appellate board certification exam might wish to keep this case in mind.

...posted by ⊥ 7:45 AM ⊥ #

Eleventh Circuit: Cuban Spies' Change of Venue

The Eleventh Circuit issued this high-profile decision last week that reversed the convictions of a group of Cuban spies. The court concluded that the trial should not have taken place in Miami and that the prosecution made improper and highly prejudicial references throughout the case.

The decision is a hefty one. Ninety-three pages. Over 300 footnotes, though many of them merely give record citations.

If you are intrigued by Cuban-American relations, or if you followed the well-publicized trial, or if you want to see an extremely thorough effort to develop and preserve a change of venue request, check this decision out.

Reminiscent of the Schiavo case, the court was sensitive to the likely unpopularity of the decision to reverse the convictions for a new trial. The decision ends with this language:

The court is aware that, for many of the same reasons discussed above, the reversal of these convictions will be unpopular and even offensive to many citizens. However, the court is equally mindful that those same citizens cherish and support the freedoms they enjoy in this country that are unavailable to residents of Cuba. One of our most sacred freedoms is the right to be tried fairly in a noncoercive atmosphere. The court is cognizant that its judgment today will be received by those citizens with grave disappointment, but is equally confident of our shared commitment to scrupulously protect our freedoms. The Cuban-American community is a bastion of the traditional values that make America great. Included in those values are the rights of the accused criminal that insure a fair trial. Thus, in the final analysis, we trust that any disappointment with our judgment in this case will be tempered and balanced by the recognition that we are a nation of laws in which every defendant, no matter how unpopular, must be treated fairly. Our Constitution requires no less.

...posted by ⊥ 7:15 AM ⊥ #

Monday, August 15, 2005

Fee Cap Rules Proposal

Today's Tallahassee Democrat has this latest story on a controversial petition being considered by the Florida Supreme Court. The petition requests the high court to make the Florida Constitution's new medical malpractice contingency fee caps part of the Rules Regulating the Florida Bar.

...posted by ⊥ 9:07 AM ⊥ #

Fifth District: Vocabulary Building

It's always a bonus when reading a case expands your knowledge of not only the law but some other subject, or perhaps your vocabulary.

Take, for instance, this decision from the Fifth District, where Judge Sawaya wrote:

Reading the allegations made by the Department, one might get the impression that the mother is a termagant who regularly beats her children, especially C.M., and who, because of arthritic hands, has delegated that rather unpleasant task to her oldest son. The mother contends, however, that she is a college graduate, school teacher, and parent burdened with the unenviable responsibility of raising an ungovernable child.

What's a termagant? It may sound like an insect, but the American Heritage Dictionary defines a termagant as "a quarrelsome, scolding woman; a shrew." It's also a word used only once before in Florida's appellate jurisprudence. In 1923. Who knew?

...posted by ⊥ 8:10 AM ⊥ #

Fifth District: Premises Liability

Those interested in premises liability cases should check out this decision from the Fifth District. The plaintiff tripped over a mall parking lot bumper at night, in the rain. She sued, claiming the bumper was a dangerous condition and the premises were not reasonably safe. The trial court granted the mall owner summary judgment on the notion the condition was open and obvious, but the appellate court reversed.

The open and obvious element does not affect whether property is reasonably safe, and even the open and obvious nature of the condition was a question of fact under the circumstances of the case.

...posted by ⊥ 8:05 AM ⊥ #

Second District: Failure to Prosecute

The Second District made clear that it did not condone the plaintiff's unhurried practices in this case, but the court nonetheless reversed a dismissal based on failure to prosecute. Notice of serving interrogatories served within the one-year nonactivity period and filed shortly afterward constituted good cause to avoid dismissal. Good win, John.

...posted by ⊥ 8:02 AM ⊥ #

Fifth District: Battered Spouse Syndrome

If you would be interested in a discussion on battered spouse syndrome, check out this decision from the Fifth District.

...posted by ⊥ 7:58 AM ⊥ #

Fifth District: Credentialing Committees

Can a trial court order a hospital to disclose the names of persons on the hospital's credentialing committee, where the purpose of the disclosure is to allow a plaintiff to depose the committee members regarding their allegedly negligent decision to credential a doctor? No, said the Fifth District in this decision.

...posted by ⊥ 7:54 AM ⊥ #

Friday, August 12, 2005

Eleventh Circuit: Relation Back Doctrine

Here we have an interesting decision from the Eleventh Circuit involving famed attorney F. Lee Bailey.

The history of events is rather complicated, though it's somewhat well known in Florida legal circles. In the end, the federal government wound up suing Bailey on conversion and civil theft claims for having wrongly accepted, and then disbursed, $2 million from his former clients. The money had been unlawfully laundered and consequently was forfeited to the United States. The government sought the money's return and punitive damages against Bailey. A federal district court entered partial summary judgment in the government's favor and the case went to trial on punitive damages for conversion, which a jury awarded, and civil theft. When the damages were added up, they totalled $9 million.

Nonetheless, the district court ultimately entered judgment in Bailey's favor, on the theory that the federal government could not establish a possessory right to the laundered funds at the time of the conversion. At issue was the relation back doctrine, which holds that the government's interest in forfeited property relates back to the moment of the unlawful activity that gave rise to the forfeiture. The legal question was whether the relation back doctrine allows the government to demonstrate that it possessed the funds at the time Bailey converted them.

The district court said no, and, after a rather thorough analysis, the Eleventh Circuit agreed.

...posted by ⊥ 8:00 AM ⊥ #

Noles News

Florida State University intends to file its appeal today of last Friday's ruling banning post-season use of Seminole Indian indicia, the Tallahassee Democrat reports here. The story quotes the NCAA's President as saying the executive committee should "take seriously" how the university has the approval of Florida's Seminole Indians.

...posted by ⊥ 7:51 AM ⊥ #

Fourth District: Interlocutory Appeals

If a trial court rules that it will enjoin a party from contacting certain persons, but another hearing is required to determine which persons. Is that an appealable nonfinal order under Rule 9.130? No, said the Fourth District in this decision.

...posted by ⊥ 7:47 AM ⊥ #

Fourth District: Rule 1.525

In This case, it appears the Fourth District affirmed the denial of a motion for attorney's fees because the motion was filed more than 30 days after the trial court dismissed the operative claims and the plaintiff filed an amended complaint without those claims.

...posted by ⊥ 7:45 AM ⊥ #

Thursday, August 11, 2005

Wine Decision

You can read a copy of Judge Whittemore's decision (discussed a few posts back) here.

...posted by ⊥ 10:22 AM ⊥ #

Schiavo News

It's been a while, huh? Well, today's St. Pete Times has this story about Michael's investigation of a potential medical malpractice claim against some of Terri's care givers. Interesting.

...posted by ⊥ 8:54 AM ⊥ #

Chop Chop

Those interested in Florida State University's plans to challenge the NCAA's post-season ban on Seminole indicia should check out these stories in today's Tallahassee Democrat and St. Pete Times.

...posted by ⊥ 8:51 AM ⊥ #

Another Fine Time For Wine

I can't believe I didn't post this yesterday, but here we have a St. Pete Times story on Judge Whittemore's ruling this past Friday that Florida's ban on direct-to-consumer wine shipments from other states is unconstitutional.

Recall that, back in May, the U.S. Supreme Court released this decision holding that New York and Michigan laws prohibiting direct-to-consumer wine shipments violated federal constitutional principles because in-state shipments were permitted.

Florida law follows the same dynamic: prohibiting direct wine shipments from outside Florida but permitting such shipments from within the state. Er, make that "followed."

...posted by ⊥ 8:42 AM ⊥ #

Second District: What's In A Name?

I must have been tired when I read this case, since I found it amusing that "Romeo v. Romeo" involved a trial judge named Monaco, an attorney from Naples named Antonio, and an attorney from Marco Island.

...posted by ⊥ 8:30 AM ⊥ #

Third District: Offers of Judgment

Listen up, defense counsel. This decision from the Third District should be on your radar.

The case involved an event services and staffing provider for Pro Player Stadium that was sued when an escalator allegedly sped up and injured attendees at a football game. The defendant company gave the plaintiffs a $500 offer of judgment, which was rejected, and the case went to trial. The jury found in the company's favor, but the company's post-trial effort to seek attorney's fees based on the unaccepted offer of judgment failed. The trial judge found the offer was made in bad faith, and the appellate court found no abuse of discretion in that decision.

The rationale applied here was apparently that the plaintiffs had a case, albeit an ultimately unsuccessful one, and thus a nominal offer could not have been made in good faith. To quote the appellate court:

A reasonable basis for a nominal offer exists only where "the undisputed record strongly indicate[s] that [the defendant] had no exposure" in the case. Peoples Gas Sys., Inc. v. Acme Gas Corp., 689 So. 2d 292, 300 (Fla. 3d DCA 1997). Therefore, a nominal offer should be stricken unless the offeror had a reasonable basis to conclude that its exposure was nominal. Dep’t of Highway Safety and Motor Vehicles, Florida Highway Patrol, v. Weinstein, 747 So. 2d 1019 (Fla. 3d DCA 2000).

Some may question whether those two sentences are consistent.

...posted by ⊥ 8:24 AM ⊥ #

Second District: Appealable Orders

The Second District reminds us here that where a final judgment is entered as to some but not all parties in a case, orders relating to the parties remaining in the trial court are not, as such, appealable in an appeal from that final judgment.

...posted by ⊥ 8:20 AM ⊥ #

Second District: Duty

Duty fans will be interested in this decision from the Second District. The issue was whether a case manager at a community mental health center had a duty to warn persons at a psychiatric hospital about the potential dangerousness of a hospital admittee whom the manager had previously counseled. The court held no duty existed. Nice win, Scot.

...posted by ⊥ 8:20 AM ⊥ #

Third District: Administrative Power

Administrative and criminal law fans may be interested in this decision, where the Third District rejected the notion that the Department of Highway Safety and Motor Vehicles can require a convicted drunk driver to use an ignition interlock device absent a court-imposed sentence requiring such use.

...posted by ⊥ 8:16 AM ⊥ #

Second District: Limitations Periods

For statute of limitations purposes, is there a difference between a Florida law claim for specific acts of employment discrimination and a Florida law claim based on a hostile work environment? Yes, there is. The specific act claim must be based on specific acts occurring within the lookback period, while the hostile work environment can be based on events taking place outside that period if they culminated in other events taking place within the period. So said the Second District in this case.

...posted by ⊥ 8:06 AM ⊥ #

Second District: Insurance Conflict

A discussion of the "products-completed operation hazard" exception to the "your work" exclusion in a contractor's general liability policy may lead some insurance fans to check out this decision from the Second District.

More interesting, though, is that decision's holding that the contractor's surety was conditionally entitled to an appellate attorney's fees award against the contractor's primary and excess insurers. That result was based on the notions the surety stood in the contractor's shoes and that a contrary ruling would exalt form over substance, since the contractor's attorney (rather than the surety's attorney) could have carried the proverbial ball in the litigation. The court certified that its decision conflicted with a 1978 decision from the First District.

...posted by ⊥ 8:04 AM ⊥ #

First District: Attorney's Fees

Just a brief reminder here from the First District that orders awarding attorney's fees should contain details such as the rates allowed and the reasonable number of hours expended.

...posted by ⊥ 8:00 AM ⊥ #

Second District: Magnuson-Moss Act

If you're trying to follow the recent case law regarding how the federal Magnuson-Moss Warranty Act applies in the context of leased automobiles, be sure to check out this decision from the Second District. The court reversed a dismissal that held the act did not apply as a matter of law. Much like the same court did months ago in this decision, the court certified conflict with a decades-old First District case.

...posted by ⊥ 7:58 AM ⊥ #

Second District: Sentencing Conflict

If you work at a certain court in Tallahassee and enjoy sentencing issues, then you'll be glad to know that the Second District certified conflict in this case regarding how the district courts can review sexual predator designations entered more than 30 days after a defendant is sentenced.

...posted by ⊥ 7:55 AM ⊥ #

Questions, questions

In this case, the Second District certified the following to the Florida Supreme Court as a question of great public importance:

SHOULD THE PROCEDURE OF QUASHING THE ORDER OF THE TRIAL COURT DENYING A FACIALLY INSUFFICIENT CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL, WITH INSTRUCTIONS THAT THE TRIAL COURT GRANT THE APPELLANT LEAVE TO AMEND THE RULE 3.850 POSTCONVICTION MOTION, BE EXTENDED TO INCLUDE CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL THAT ARE INSUFFICIENT AS A RESULT OF A FAILURE TO ALLEGE ONE OR BOTH PRONGS OF THE STANDARD SET FORTH IN STRICKLAND V. WASHINGTON, 466 U.S. 668 (1984)?

...posted by ⊥ 7:53 AM ⊥ #

Recovery!

I've got the joy, joy, joy, joy...

When I returned from my late-July hiatus, I mentioned some events that occurred during my absence. Among them was the incredibly frustrating loss of my laptop's hard drive. I had used it to store research, case documents, article drafts, blog items, Schiavo documents, and hosts of other files -- many of which had never been backed up. Big mistake. One morning, not 45 minutes after I turned it off at home, I powered up the laptop at work and the hard drive went kerplunk. It made a dat-dat-dat noise that in other circumstances might have been interesting, but it wouldn't boot.

Unexpectedly, the Blogosphere came to the rescue. Actually, it was Steven Teppler, an attorney and Florida business owner. He sent me an email suggesting I give GetDataBack a try. I had never heard of the program, but I badly needed help.

Long story short: I purchased the software ($79) and a 40-gig USB hard drive ($110), spent a while understanding how to make a BartPE cd ($0) to boot a functioning Windows OS from a cd, and let the software work its magic. It recovered the entire drive's files and stored them in a folder on the USB drive. The bad hard drive has now been replaced, and I have a duplicate of my files.

I'm ecstatic. Overjoyed. And I'm now making sure everything I have is either on the network at work (where the firm backs it up a gillion times) or backed up to my own portable hard drive.

Thanks again, Steven. And thanks www.GetDataBack.com.

...posted by ⊥ 5:03 AM ⊥ #

Wednesday, August 10, 2005

First District: Cracked Front View, Vol. IV, Issue I

Is it unlawful to drive in Florida with a cracked windshield? What if the crack poses no safety threat to anyone?

Abstract Appeal readers may recall that I've dwelled a bit on these questions before. (Past dwellings can be seen here, here, here, and here.) My musings were even noted in this column, whose author seemed to agree with my observation that a newly cracked windshield can potentially affect any driver on any given day, and whether any crack or just a safety-hazard crack is unlawful should be clear. Instead, at the moment, it just depends on what county you're in.

The latest entrant in the cracked front view sweepstakes is the First District, which in this case held that a 14-inch "hairline crack" on the passenger side of a windshield violated Florida law and justified a traffic stop. The court agreed with this en banc decision from the Second District, which reached the same result concerning a 7-inch crack in the upper passenger-side corner of a windshield, and disagreed with this decision from the Fourth District, which held that a crack is only unlawful when it poses a safety hazard.

In this post, I noted that this decision from the Fifth District implies that a safety threat is necessary for a crack to be unlawful.

So where does all that leave things at the moment?

Let's say you're in Ft. Lauderdale and important business has you driving to Tallahassee. Along the way you'd like to stop and see your mother in Sarasota. So you hop on I-75, and while starting along the old Alligator Alley, the truck in front of you kicks up a rock that produces a 6-inch crack in the upper passenger-side corner of the windshield. Unlawful? Nope, you're in the Fourth District's territory, and that crack shouldn't pose a safety threat. But continuing along I-75, you'll soon cross into Collier County, which is in the Second District's territory. Now the law prohibits that crack. Watch out for troopers. You stop for your visit in Sarasota and continue heading north. Not far past Tampa, you cross into the Fifth District's territory -- Hernando, Sumter, and Marion Counties. Whether your cracked windshield is unlawful here isn't clear, but that court's case law seems to say it's not. Heading toward Gainesville and then I-10, which will take you to Tallahassee, you cross into Alachua County, and now you're in the First District's territory. Illegal again, all the way to the capital.

The state supreme court will eventually clear up the conflict here. In the meantime, perhaps our state legislators will decide to clarify the governing statutes and make the answer plain.

...posted by ⊥ 8:05 AM ⊥ #

Monday, August 08, 2005

Seminole Nations

This story from the St. Pete Times well summarizes the debacle over NCAA universities using American Indian mascots and nicknames, particularly with respect to the Florida State Seminoles.

Florida's Seminole tribe has expressly endorsed the school's use of the tribe's name and images, but apparently objections by Seminole tribes outside Florida led the NCAA to conclude that Florida State's use was unacceptable. Apparently, the name "Florida State Seminoles" does not sufficiently convey the notion that we're talking about the Seminoles of Florida.

T.K. Wetherell, the university's president, has already declared an intent to sue over the NCAA's actions. You can read about that intent here. The story doesn't suggest the intended basis for the suit. Anyone want to guess? One idea floating out there starts with an "A," ends with a "T," and might be pronounced "antirust" by Astro, the dog from the Jetsons. Talk about a war. In any case, the suit will sure be an interesting one.

...posted by ⊥ 6:58 AM ⊥ #

Fifth District: Actions At Issue

If you do not know the difference between when a case is at issue and when a case is actually ready for trial, then check out this decision from the Fifth District.

Appellate folks might note that a petition for writ of mandamus was used to obtain the appellate court's decision.

...posted by ⊥ 6:54 AM ⊥ #

Fifth District: Inverse Condemnation

Maybe it's too early to call, but land use fans may be willing to dub this decision with some sort of case-of-the-year moniker. A divided Fifth District affirmed a $1.4 million inverse condemnation award against Osceola County. Apparently, the County deprived the plaintiffs of their ability to close a landfill.

Judge Griffin dissented from the holding that the evidence supported such a result. This excerpt from her opinion should frame the context:

I have been doing this job for a while, and I think this is the largest verdict based on the least evidence I have ever seen. In fact, it may be the least evidence to support a verdict of any size that I have ever seen. Even for the most committed believer in the twin propositions that all government is evil and a man's landfill is his castle, this one is a hard sell. . . . Everyone agrees that the only way to properly close the landfill and to restore the land to other utility in accordance with DEP regulations was to cover it with two feet of dirt. What Mr. Huff's attorneys have succeeded in doing is convincing the people who matter that Osceola County, for no apparent reason, and against all logic, refused to let Mr. Huff do this. This is a feat of advocacy so adroit that I predict it will go down in Florida legal history as the eminent domain equivalent of "If the glove doesn't fit, you must acquit."

...posted by ⊥ 6:52 AM ⊥ #

Hey, Legislature!

Just in case anyone in Tallahassee is wondering which statutes might benefit from some tweaking this year, I'll note how, in this decision, the Fourth District observed "some incongruity" in the application of Florida's chemical castration statute. The statute requires eligibility exams to be conducted at the front end of a sentence but allows treatment to commence not later than one week prior to release. In the case of a lengthy sentence, the potential delay between testing and treatment may be a concern.

...posted by ⊥ 6:50 AM ⊥ #

Fifth District: Rebuke of Counsel

The next time you argue on appeal that the trial judge prejudicially rebuked your trial counsel in the jury's presence, this may be the case you cite. The Fifth District concluded that even though the trial judge "showered his wrath upon all participants" in the trial, the comments directed at the appellant's counsel and the state of the evidence were sufficiently problematic to give rise to a reversal.

...posted by ⊥ 6:49 AM ⊥ #

Fourth District: Final Judgments

Is an order enforcing a settlement agreement a final order? Maybe. It was not in this case, where the Fourth District found that judicial labor remained to be performed.

I'll note some tension appears between the penultimate paragraph of this decision and the First District's recent decision in this case concerning whether the expiration of a reservation period can make an order final.

...posted by ⊥ 6:48 AM ⊥ #

Fourth District: Construction Law

Construction fans may wish to check out this decision from the Fourth District. The court addressed the rare subject of Eichleay damages and, following the federal courts' lead, held that such damages are only available where all substantial work on a project is stopped and the contractor is placed on standby.

...posted by ⊥ 6:44 AM ⊥ #

Fourth District: Arbitration and Bankruptcy

Can a non-signatory to an arbitration agreement waive the right to litigate in court by participating in an arbitration? Sure. It happened in this decision from the Fourth District.

Note the interesting paragraph at the end of the decision regarding how parties other than the debtor cannot invoke the automatic stay triggered by a bankruptcy where the debtor chooses to ignore a stay violation.

...posted by ⊥ 6:42 AM ⊥ #

Fifth District: Arbitration Conflict

Arbitration decisions keep coming in waves. In this case, the Fifth District certified conflict with a 2003 decision from the Fourth District over whether statutes of limitations issues are for the court or the arbitrator to decide.

...posted by ⊥ 6:39 AM ⊥ #

Fourth District: Search and Seizure

Is there any chance a victim's claim of observing contraband in another's home four years ago will be considered stale as a basis for a search of the home? Not much, if we're talking about sexual abuse and the contraband is videotape evidence. Check out this decision from the Fourth District.

...posted by ⊥ 6:38 AM ⊥ #

Fifth District: Arbitration

A written contract entered by an unlicensed contractor is not enforceable under Florida law. Based on that principle, the Fifth District held in this case that the arbitration portion of a contract signed by an unlicensed contractor was not enforceable.

...posted by ⊥ 6:33 AM ⊥ #

Fourth District: Fundamental Error

Is it fundamental error to instruct a jury on a nonexistent crime where the jury ultimately finds that a higher degree of crime was committed and the evidence supports that finding? No, said the Fourth District in this decision.

...posted by ⊥ 6:32 AM ⊥ #

Fourth District: Blakely

Does a finding that a defendant's prior conviction occurred within a certain period of time from the present offense constitute a finding that must be made by a jury, not a judge, under Blakely v. Washington? No, according to the Fourth District's decision in this case.

...posted by ⊥ 6:30 AM ⊥ #

Fourth District: Arbitration

Construction fans may be particularly interested in this arbitration decision from the Fourth District. Not only did the court hold that an arbitration right had been waived, but the court also provided a citation for the time-honored notion "time is money." See note 1.

Update: the court subsequently issued an amended decision in this case, available here.

...posted by ⊥ 6:28 AM ⊥ #

Fifth District: Defamation

The Fifth District offers us an interesting defamation case here.

...posted by ⊥ 6:25 AM ⊥ #

Fourth District: Spoliation

In this case, the Fourth District reminds us that a cause of action for third-party spoliation does not accrue until the underlying litigation is concluded. Much like legal malpractice.

...posted by ⊥ 6:25 AM ⊥ #

Fourth District: Continuances

Trial judges who wonder whether they must grant continuances where not doing so would leave a party without counsel at trial may find an answer in this decision from the Fourth District.

...posted by ⊥ 6:20 AM ⊥ #

Fourth District: Sanctions

For an example of when a death knell sanction can be appropriate in a civil case, check out this decision from the Fourth District.

...posted by ⊥ 6:17 AM ⊥ #

Friday, August 05, 2005

Now CEO/Advocate

An FYI for those who know Gary Sasso.

Gary is an accomplished advocate of enormous skill and talent, as well as a great person. During my years as an associate with Carlton Fields, he served as my officially designated mentor -- perhaps the only blotch on his resume.

I'm glad to say that Carlton Fields has just selected Gary to be the firm's new CEO, effective next year with retirement of our current leader, Tom Snow. Congrats to him. You can send him wishes by clicking here.

...posted by ⊥ 10:33 AM ⊥ #

Carlie Brucia Case: Voluntary Intoxication

Law students typically learn in a first-year criminal law course that voluntary intoxication is not a defense to a criminal charge. If you intoxicate yourself with alcohol or other drugs, your acts remain your responsibility. That view changed somewhat in the last century or so, as courts began to distinguish between crimes requiring a specific intent to commit an offense and crimes requiring merely a general intent to commit the act at issue. That happened in Florida. Voluntary intoxication remained a nonissue for general intent crimes but could be raised as a defense to specific intent crimes.

In 1999, the Florida legislature adopted this statute, which precludes the use of voluntary intoxication as a defense to any crime, including specific intent crimes, unless the intoxication is from a lawfully prescribed medication.

I bring all of this up because of this story in today's Sarasota Herald-Tribune, which explains how the man accused of murdering Carlie Brucia is challenging the constitutionality of the 1999 statute. Murder is a specific intent crime. Prior to October 1999, voluntary intoxication was a defense to a murder charge. Not any more, if the statute is constitutional, and it looks like the defendant would like to use that defense.

The article suggests the defendant may be raising an equal protection challenge: the law unconstitutionally discriminates between people who take prescription drugs and those who take, well, nonprescribed drugs. The legal issue for the courts will be whether a rational basis exists for the legislature to distinguish betweeen those two groups of people.

I note that Sarasota is within the Second District's territory, and in this 2003 decision, the Second District rejected a constitutional due process challenge to this particular statute.

...posted by ⊥ 9:14 AM ⊥ #

Third District: Voluntary Dismissals

Let's say that an oral argument goes very badly for your client, the appellant in a case. Can you voluntarily dismiss the appeal before an affirmance is released? You can try. In this case, the Third District agreed to dismiss the case, but Judge Schwartz dissented.

...posted by ⊥ 9:10 AM ⊥ #

Third District: Products Liability

Products fans will be interested in this decision from the Third District.

The district court held that the trial court should have granted a component manufacturer a directed verdict in a lawnmower injury case. The danger presented by the component alone was obvious and became hidden only when the component was integrated in the final product by the lawnmower manufacturer. The court held that the component manufacturer's limited review of the lawnmower plans did not constitute the substantial participation necessary to trigger liability for the final product's unsafe design.

...posted by ⊥ 9:07 AM ⊥ #

Third District: Class Actions

The Third District has recently released two of the most concise class certification reversals I've read.

In this case, a class claim alleged that certain Jettas were designed too low to the ground and so suffered front-bumper damage when pulling over wheel stops in parking lots. The class was defined as drivers of the vehicles at issue who suffered bumper damage as a result of contact with a wheel stop or curb. The appellate court succinctly held that causation would be a significant individual issue, precluding certification.

In this case, excluding case citations, the court simply held:

Carnival Corporation appeals from an order certifying a class of Carnival cruise passengers who were allegedly injured while they were on a shore excursion aboard a Panama Canal Railway train involved in an accident in the Republic of Panama. We reverse the class certification on the grounds of lack of commonality and typicality.

That was not an introduction. It was the opinion.

...posted by ⊥ 9:06 AM ⊥ #

Third District: Preservation of Error

Not supplying the appellate court with a trial transcript doomed the appellants' arguments in this decision from the Third District.

...posted by ⊥ 9:04 AM ⊥ #

Third District: Blakely Conflict On Resentencing

Do the principles of Blakely v. Washington apply when a resentencing is undertaken for a conviction that was final prior to the release of Blakely and its predecessor, Apprendi v. New Jersey? In this case, the Third District held they do not, and the court certified conflict with the First District's decision in this case.

...posted by ⊥ 9:02 AM ⊥ #

Third District: Agency Deference

If an agency's decision can be characterized as one of simple contract interpretation, requiring no agency expertise, will a court give deference to that decision? The Third District did not in this case.

...posted by ⊥ 9:00 AM ⊥ #

Third District: Expert Testimony

Those who follow case law regarding expert witnesses may be interested in this divided decision from the Third District. The court reversed a judgment following a jury trial based on the trial court's improper exclusion of an expert.

...posted by ⊥ 8:58 AM ⊥ #

Third District: Dissolution

How often do you see a divorce judgment reversed entirely for a new trial on all issues? Not often. But it happened here in this Third District decision.

...posted by ⊥ 8:55 AM ⊥ #

Thursday, August 04, 2005

"Bird Road Rapist" Not In Prison After All

Among the more moving law-related stories you'll encounter are ones where persons were found guilty of heinous crimes they did not commit, often based on eyewitness testimony, and grotesquely long periods of time later the errors are confirmed and the wrongfully convicted walk out of prison.

That happened yesterday in Miami, as explained by this story in today's Sun-Sentinel.

Luiz Diaz, now 67, spent 26 years in prison as the "Bird Road Rapist," having been found guilty of four rapes, three attempted rapes, five kidnappings, and a series of robbery and firearm charges. Multiple victims testified he was the perpetrator, though two later recanted their testimony. DNA tests on evidence not previously examined confirmed that the eyewitnesses, the prosecution, and the jury got it wrong in at least two of the cases. The state is unwilling to stand on the other convictions.

Welcome back, Mr. Diaz. Someone get that man a blog.

...posted by ⊥ 7:39 AM ⊥ #

Sex Offender E-Mail Alerts

This story may be of interest to those following the civil consequences of being labeled a sexual offender or sexual predator. The Bradenton Herald reports that, under a new program, Sarasota County residents can sign up to receive emails from the county sheriff whenever a sex offender or predator moves into their neighborhood.

...posted by ⊥ 7:34 AM ⊥ #

Wednesday, August 03, 2005

New 5th DCA Judge

Word is out that the Governor has selected Circuit Judge C. Alan Lawson, of the Ninth Judicial Circuit in the Orlando area, for the vacant seat on the Fifth District. Congratulations.

...posted by ⊥ 8:34 AM ⊥ #

Second District: Corpus Delicti

Here is an interesting case. A person repeatedly described himself committing a crime. The state charged him with that crime, and the case went to trial, where he was found guilty. Other than his confession, there was no evidence a crime had ever been committed.

Traditionally, Florida has followed a rule of law (the corpus delicti rule) that requires the state to present evidence that the harm contemplated by a criminal charge has been suffered by a particular victim and that the harm was due to the criminal acts of another. As a result, a confession alone -- which may be the product of the confessor's derangement or mistake, or which may be the fabrication of a confessor's supposed witness -- is generally insufficient to convict a person of a crime.

That rule has been relaxed in some states, and in the federal justice system, in favor of a more flexible trustworthiness examination. In Florida, the relaxed rule applies by statute in the case of certain offenses, including sexual battery. The crimes confessed in the case linked above involved sexual battery by a nursing home assistant on Alzheimer's patients. (Does the nature of the confessed crime affect your view on whether or what sort of corroborative evidence should be required?)

Even under the trustworthiness test, though, there must be independent evidence establishing the trustworthiness of the confession or establishing that a crime occurred. The Second District determined that that the state failed to present such evidence. Judgment reversed, charge dismissed.

...posted by ⊥ 8:22 AM ⊥ #

First District: Appellate Jurisdiction

A quick quiz for appellate folk: is an order that declares it will become final upon the happening of an event final when the event occurs? The First District has the answer here.

I'll give you a hint: the decision ends with the word "dismissed."

...posted by ⊥ 8:20 AM ⊥ #

First District: Public Records

Hey, public records fans. What's the difference between a mass of unused paper election ballots and a case of blank paper held in a government official's office?

Nothing, said the First District in this case. The court affirmed the denial of a class action effort to obtain unused ballots from the 2000 presidential election.

...posted by ⊥ 8:15 AM ⊥ #

First District: Education Administration

Does the appeals process established within chapter 1009 for financial aid applications obviate the need for the Department of Education to follow the hearing process generally required by chapter 120? No, said the First District in this case. Interesting decision.

...posted by ⊥ 8:14 AM ⊥ #

First District: Land Use Class Action

Land use fans will be interested in this decision from the First District. The case involved a class action by property owners against the St. Joe Company for various pollution-related claims. The circuit court certified a plaintiff class, and St. Joe successfully appealed the certification ruling. The district court determined the putative representatives had failed to show that issues of contamination, stigma, and (when applicable) causation could be proven on a class-wide basis.

...posted by ⊥ 8:12 AM ⊥ #

Second District: Jury Instructions

As an appellate lawyer (i.e., someone hyperfocused on legal issues), I really enjoy the jury charge portion of a trial, and I'm always interested in appellate decisions that discuss jury instructions. Like this one. The Second District found fundamental error in the manner the trial judge abbreviated his reading of the instructions related to a criminal fraud charge and in the use of "and/or" in reciting the elements of a conspiracy charge.

The "and/or" issue also appears in this decision, where the Second District treated a post-term motion to withdraw mandate as a petition for habeas relief, allowing an appellant whose "and/or" fundamental error argument had been PCA'd to obtain relief consistent with that court's decisions in more recent cases, including a case involving the same underlying criminal enterprise. A refreshing decision.

...posted by ⊥ 8:08 AM ⊥ #

First District: Tax Exemptions

Tax fans will no doubt be interested in this decision from the First District. The court examined whether a gift shop operator at a federal naval base constituted a federal instrumentality for purposes of collecting state sales taxes.

...posted by ⊥ 8:05 AM ⊥ #

First District: Closed Trials

Locking the courtroom doors may raise fire code issues, as the First District noted in this decision, but a reasonable restriction on the time and manner of ingress to and egress from a courtroom is permissible.

The court's opinion also notes the similar theater house custom and, mentioning the Met in particular, asks rhetorically: "Is it more important not to disturb Berg’s 'Lulu' than to avoid disruption of a murder trial?"

...posted by ⊥ 8:03 AM ⊥ #

First District: Administrative Hearings

This decision from the First District examined whether a nursing home was entitled to an administrative hearing on its claim against AHCA for reputation injury. The court explained the "stigma plus" test.

...posted by ⊥ 8:00 AM ⊥ #

Tuesday, August 02, 2005

Bandwidth Theft

This story from yesterday's St. Pete Times caught my attention. The author describes a perceived predicament involving one man who left his wireless home network, with Internet access, unsecured, and another man with a laptop computer who parked outside the first man's home to use the available bandwidth in stealth fashion. Police arrested the interloper for violating Florida's law against unauthorized access to a computer network.

The story describes the public's varied reactions to this situation. What interested me is that, apparently, a good number of people believe that unsecured wireless networks are public commodities, available upon discovery. Sort of like how some viewed the New World.

Eh, no. I wish the author had been a bit more firm in describing the law on this point. Section 815.06 of the Florida Statutes states:

(1) Whoever willfully, knowingly, and without authorization: (a) Accesses or causes to be accessed any computer, computer system, or computer network;

(b) Disrupts or denies or causes the denial of computer system services to an authorized user of such computer system services, which, in whole or part, is owned by, under contract to, or operated for, on behalf of, or in conjunction with another;

(c) Destroys, takes, injures, or damages equipment or supplies used or intended to be used in a computer, computer system, or computer network;

(d) Destroys, injures, or damages any computer, computer system, or computer network; or

(e) Introduces any computer contaminant into any computer, computer system, or computer network,

commits an offense against computer users.

Generally, an offense against computer users is a third-degree felony. Third-degree felonies are typically punished by up to five years in prison and a fine of up to $5,000.

It's subsection (a) that matters here -- knowingly, willfully, and without authorization acessing a computer, computer system, or computer network.

Someone has apparently raised the notion that if a computer network owner leaves a wireless network unsecured, the owner has implicitly "authorized" the public to appear and use it. Maybe. Maybe if the network is accessible in a public park, or a shopping mall, and if it's named something like "Free Public Net" -- then ok, I can buy that. But it seems most unreasonable to suggest that a person driving down a residential street with a wireless-equipped laptop has authorization to use any open home network whose signal happens to reach the street at a given moment.

The law is simple. It doesn't distinguish between accessing the network to utilize an Internet connection and accessing the network to scan the contents of a home computer's hard drive. It bans access.

I acknowledge that something in the way of a public service message seems appropriate here. When crimes consisted largely (though not entirely) of prohibitions on physically harming people, it was probably rather simple for the average person to know, in advance, what conduct could land you in prison. The last few decades have seen a culture clash of sorts as criminal codes expanded to encompass some well known, supposedly "victimless" crimes, mostly involving possession of certain items.

Now we have computer access crimes, which lack the physical dimension found in the traditional "victimless" possessory crimes. I can take my laptop, click an icon that says "find available wireless networks," and click another icon to connect to any unsecured network available. Click, click, click from an infinite number of spots in cities and towns, and the next thing I know I could be trying to blog from jail. Facing a third-degree felony charge.

Authorization means more than access. The government and the media would do well to get the word out.

...posted by ⊥ 7:45 AM ⊥ #

DBPR

The new Secretary of the Department of Business and Professional Regulation is Simone Marstiller. Congrats, Simone.

...posted by ⊥ 7:10 AM ⊥ #

Judge Kaplan

Today's Sun-Sentinel has a very nice piece describing the career of Broward County Circuit Judge Stanton Kaplan.

...posted by ⊥ 7:03 AM ⊥ #

Roberts Nomination

On the national scene, today's St. Pete Times has this interesting story on the potential significance of John Roberts' view of the Commerce Clause.

...posted by ⊥ 7:00 AM ⊥ #

Voter Suit

For more on Hispanic and black activists' pro se federal law suit against the City of Kissimmee regarding how the city elects its commissioners, check out this story in today's Tallahassee Democrat.

...posted by ⊥ 6:58 AM ⊥ #

Monday, August 01, 2005

While I Was Out...

I've spent some time today surveying what's gone on in the last two weeks, and it's quite a bit. I'm catching up on my own, so I can catch up here. I have a bunch of email to answer.

Many thanks to those who wondered where I was and that all was well. All is, and was. Late July was expected to be a heavy work period for me, and around the 17th I received a sort of emergency request to jump into a two-week trial to provide appellate and legal-issue support. I did that, and met my other work commitments, but I knew at the start meaningful blogging would be nearly impossible.

Oh -- the trial was in Bartow, and I was commuting from St. Pete.

So how did the last two weeks go?

Well, we got a defense verdict in the trial, and my appellate friends out there will appreciate the likely consequence of that result: appellee!

We all learned the President's nominee for the current U.S. Supreme Court vacancy, and as it became fashionable to wonder who has what litmus test, I came to appreciate that, when I blog, I have no litmus test. Nope. If a Florida or Eleventh Circuit judge writes something interesting, I aim to talk about it. And maybe add a comment or two...

I squeezed a trip to D.C. into the mix. A nice celebratory tour of the IEEE-USA's "win" in the Grokster case.

I've increased my running mileage. The IT band troubles that plagued me last year are in check. My jiffy-cool GPS watch tells me I've knocked out 39 miles since the 17th. A good start.

I happened to return from a run one night to catch one of the more hysterical takes on the Roberts nomination -- the Daily Show's Rob Corddry's "Confirm or Deny?" piece. Rufus Pfukke? Oh my. If you haven't seen that clip, well, you're missing something funny. Not necessarily news, but something awfully funny.

Hunter announced that he's leaving my neck of the appellate woods and heading to a small shop in Manatee County. My neck's loss, for sure. I'll miss working with him.

Let's see, about 2 million new blogs were started.

My laptop's hard drive suffered a fatal, boot-sector based crash, and I lost a ton of data. Fumes emanating from my head are still visible from the right angle.

And last... The Florida Supreme Court was on its summer break when I disappeared. They're still on break. I'm back. For some reason, I don't feel so far behind.

...posted by ⊥ 11:22 PM ⊥ #

Back In Blog

Later today!

...posted by ⊥ 7:52 AM ⊥ #