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|Any Remark Found On Abstract Appeal Should Be Attributed Solely To Its Author|
The pupil of impulse, it forc'd him along,The Georgia Supreme Court quoted that poem in an 1879 decision, and the Florida Supreme Court quoted from the Georgia decision in a 1963 decision. But it was not until 1984 when Judge Joe Cowart, Jr. of the Fifth District Court of Appeal quoted the poem in a dissent and referred to the right-for-the-wrong-reason concept as the "tipsy coachman" rule that the term began to take off in Florida. Since then, it has been used many dozens of times by Florida's appellate judges. Today's decision is simply the most recent.
His conduct still right, with his argument wrong;
Still aiming at honour, yet fearing to roam,
The coachman was tipsy, the chariot drove home....
WHETHER, UNDER THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION, A TRAINED NARCOTICS DETECTION DOG ALERT OF A VEHICLE PROVIDES PROBABLE CAUSE TO SEARCH THE VEHICLE'S DRIVER WHO IS ALSO THE SOLE OCCUPANT OF THE VEHICLE?The court answered the question in the negative.
Two-inch fish nets, or not two-inch fish nets? That is the question.But the decision did not.
Two fish, or not two fish? That is the question.And a serious question, too.
In so ruling, we note that we are not unsympathetic to the challenge that trial courts face when confronted with what appear to be unlimited discovery disputes, each requiring an inordinate amount of judicial time and effort to resolve. For this reason, we remind Respondent's counsel of his ethical obligation to refrain from making frivolous discovery requests. See Rule 4-3.4 (d), Rules of Professional Conduct. Some of the requests propounded in this case are so patently overbroad that they are clearly frivolous. We similarly remind Petitioners' counsel of her professional obligation, set forth in the same rule of professional conduct, to comply with all legally proper discovery requests. Id. The parties should fulfill their respective ethical obligations by meeting and working together to reasonably narrow the disputed issues before bringing future discovery matters to the trial court for resolution. This should be the practice of all counsel, in all cases.Unfortunately, the standard set forth in that paragraph does not describe the practice of all counsel in all cases -- not even close, with the problems coming from both sides of the bar. The situation will likely improve, however, to the extent the judiciary continues to demonstrate a willingness to step in and publicly address these matters.
DOES THE "TESTIMONIAL HEARSAY" RULE SET FORTH IN CRAWFORD V. WASHINGTON, 541 U.S. 36 (2004), APPLY IN COMMUNITY CONTROL AND/OR PROBATION REVOCATION PROCEEDINGS?The district court answered this question in the negative.
UNDER THE CRIMINAL RULES OF DISCOVERY AND THE HOLDING IN STATE V. MULDOWNY, [871 So. 2d 911 (Fla. 5th DCA 2004)],CAN THE STATE OF FLORIDA BE REQUIRED TO PRODUCE THE SOURCE CODE FOR THE SERIES 5000 INTOXILYZER?The district court answered the question in the negative.
DOES FUNDAMENTAL ERROR OCCUR WHEN AN ERRONEOUS JURY INSTRUCTION RELATES ONLY TO AN AFFIRMATIVE DEFENSE AND NOT TO AN ESSENTIAL ELEMENT OF THE CRIME?The court again answered the question in the affirmative.
[J]udges and lawyers [have lost] . . . sight of a truth they [formerly] accepted almost universally: viz., that there is an economic relationship to almost every legal service in the marketplace. The value of any professional service is almost always a function of its relationship to something else -- i.e., some property or other right . . . . Trial judges and lawyers used to accept a priori the idea that, no matter how much time was spent or how good the advocate, the fair price of some legal victories simply could not exceed--or, conversely, should not be less than--some relevant sum not determined alone by hours or rates. Since Rowe, that all seems lamentably forgotten.In a footnote, the court indicated that it was troubled by the lodestar fee amount in the case, particularly the $400 hourly rate, but the court said it would "leave that issue for another case when the scope of our review is broader."
This case demonstrates why a multiplier should not be given automatically. If the plaintiff's attorney spent only ten hours, and his or her normal hourly rate is $200, yielding a lodestar of $2,000, a multiplier might be appropriate. On the other hand, a lodestar of $77,500 based on 193 hours at $400 per hour is a gracious plenty. Any attorney who would not be pleased with $400 per hour and a collectible fee of $77,500 is most unusual.
I do not suggest for a minute that the plaintiff's attorney is unprofessional. He had every right to ask for the multiplier. The error was by the judges who gave it to him. In this case, $193,000 is not a reasonable fee; it is a penalty. In my view, the multiplier should not be used as a penalty. In the words of Judge Orfinger, it amounts to a "manifest injustice."
DOES A TRIAL COURT ABUSE ITS DISCRETION IN FINDING A DEFENDANT, WHO IS DISCHARGED FROM A COURT-ORDERED DRUG TREATMENT PROGRAM FOR NONATTENDANCE, IN WILLFUL VIOLATION OF PROBATION WHEN THE SENTENCING COURT DID NOT SPECIFY THE NUMBER OF ATTEMPTS THE DEFENDANT WOULD HAVE TO SUCCESSFULLY COMPLETE THE PROGRAM AND IMPOSE A TIME PERIOD FOR COMPLIANCE?The court answered this question in the negative and certified conflict with a series of cases from the Second District.
1. ARE CHARTER SCHOOLS, WHICH ARE DEEMED BY STATUTE TO BE PUBLIC SCHOOLS, EXEMPT FROM SPECIAL ASSESSMENTS?In the original opinion, the court answered the first question in the negative and the second question in the affirmative.
2. IF NOT, CAN MANDAMUS BE USED TO COMPEL A PRIVATE CORPORATION OPERATING A CHARTER SCHOOL TO USE PUBLIC SCHOOL BOARD FUNDS TO SATISFY SPECIAL ASSESSMENTS?
1. IN LIGHT OF THE RULING IN GLOVER v. STATE, 863 So. 2d 236 (Fla. 2003), IS THE AGE OF THE OFFENDER AN ELEMENT OF THE OFFENSE OF LEWD OR LASCIVIOUS OFFENSES UNDER SECTION 800.04, FLORIDA STATUTES?The district courts of appeal are in conflict regarding the first question. The Fifth District answered yes to both questions.
2. IF SO, DOES WILLIAMS v. STATE, 791 So. 2d 1088 (Fla. 2001), REQUIRE DISMISSAL OF AN AMENDED DELINQUENCY PETITION, FILED AFTER EXPIRATION OF THE SPEEDY TRIAL PERIOD, WHICH CHANGED THE AGE OF THE OFFENDER?
WHETHER A DEFENDANT IS ENTITLED TO VACATE HIS 1981 PLEA ON ACCOUNT OF A LACK OF AWARENESS OF DEPORTATION CONSEQUENCES, WHERE AT THE TIME OF HIS PLEA THE CONVICTION HAD NO DEPORTATION CONSEQUENCES BUT, AS A RESULT OF CHANGES IN FEDERAL LAW IN 1996, THE 1981 CONVICTION WAS MADE A MANDATORY BASIS FOR DEPORTATION.The court answered the question in the negative.
[T]he record in the present case shows at least some negligence on the part of the defendant, even though a jury could find that Izquierdo was negligent herself. The jury's verdict finding no negligence on the defendant's part is contrary to the manifest weight of the evidence, and the trial court abused its discretion in denying the motion for new trial.The court's discussion focused extensively on the defendant's conduct, which from the court's explanation seems plainly to have been negligent. But could the jury have reached its verdict by finding the plaintiff failed to prove the defendant's negligence caused the fall? The court's discussion on causation was as follows:
Although the defendant argued in closing that Izquierdo did not know how she fell, the circumstantial evidence included her testimony that she slipped, went down on a wet floor, and found napkins on her shoes. The inference that the wet napkins on the floor caused her fall clearly was the only reasonable inference which could be drawn from the facts presented. The defendant offered no contrary interpretation consistent with the facts proved.Very interesting. The court's decision is available here.
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