Abstract Appeal -- by Matt Conigliaro

Thursday, August 06, 2009

Fifth District Appointment

Congratulations 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.

...posted by ⊥ 8:45 AM ⊥ #

Fifth District: Grandparental Custody

Can 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.

...posted by ⊥ 8:40 AM ⊥ #

Fifth District: Great Way To Lose, Treating Physician Discovery

I 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 respondents' counsel in other cases.

The district court denied the petition, but in doing so it described the order as curious and held an adequate remedy would be available on appeal. Any time an appellate court denies certiorari relief on grounds a full remedy will be available on appeal while suggesting there might be a problem with the underlying order, you have a pretty good loss on your hands. The trial court just might reconsider the order before the case ends and proceeds to a full appeal.

Judge Torpy went a step further. In a special concurrence, he explained his view that obtaining this sort of bias discovery from treating physicians should be controlled just as trial courts control the pursuit of similar discovery from other experts. Judge Torpy wrote:

Under most circumstances, it would seem that the correct balance is the same balance contained in the rule for all other experts because there is no logical distinction between treating physicians and retained experts for purposes of uncovering this type of information. The information is similarly relevant, and the burdens of producing the information are the same for all of these professionals.

...posted by ⊥ 8:35 AM ⊥ #

Fifth District: Entrapment

If 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 particular person claiming he or she was entrapped.

Florida's statutory law generally requires that entrapment be proved by the subjective test, but as the court explained, the objective test applies where the defendant invokes the constitutional guarantees of due process and claims the government engaged in egregious conduct.

...posted by ⊥ 8:32 AM ⊥ #

Back In Blog

Whew. 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.

...posted by ⊥ 8:28 AM ⊥ #