tag:blogger.com,1999:blog-55562572009-07-06T09:24:23.336-04:00The First Web Log Devoted To Florida Law and the Eleventh Circuit Court of AppealsMatt Conigliaronoreply@blogger.comBlogger4756125tag:blogger.com,1999:blog-5556257.post-23673589128630256312009-07-06T09:24:00.001-04:002009-07-06T09:24:23.344-04:00

... later today.

Matt Conigliaronoreply@blogger.comtag:blogger.com,1999:blog-5556257.post-66924576345765208642009-07-02T11:11:00.002-04:002009-07-02T11:44:11.698-04:00

Today, 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. The

Matt Conigliaronoreply@blogger.comtag:blogger.com,1999:blog-5556257.post-78546275481349511182009-06-04T07:25:00.001-04:002009-06-04T07:30:08.577-04:00

Florida'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

Matt Conigliaronoreply@blogger.comtag:blogger.com,1999:blog-5556257.post-49344429583560690662009-06-04T07:10:00.000-04:002009-06-04T07:21:56.393-04:00

In 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 and

Matt Conigliaronoreply@blogger.comtag:blogger.com,1999:blog-5556257.post-10413548126643895122009-06-04T07:02:00.000-04:002009-06-04T07:11:03.629-04:00

In 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.

Matt Conigliaronoreply@blogger.comtag:blogger.com,1999:blog-5556257.post-45912495853473353652009-06-01T07:30:00.001-04:002009-06-01T07:45:51.059-04:00

When should a trial court order a new trial on liability -- not just damages -- after a party adversely affected by a potential additur objects to increasing the jury's verdict? In this decision, the Fifth District explains that the answer is when liability was "hotly contested." Perhaps one might consider this recognized view to be rather peculiar. After all, additurs and remittiturs are

Matt Conigliaronoreply@blogger.comtag:blogger.com,1999:blog-5556257.post-6476501749322495192009-06-01T07:28:00.000-04:002009-06-01T07:43:50.442-04:00

Now that the supreme court has dealt with complex case management, the Fourth District would apparently like the high court and the criminal rules committee to turn their rulemaking attention to something that is supposed to be less complicated: post-conviction relief. Rule 3.851 imposes a 75-page limitation on post-conviction motions in death penalty cases. This decision from the Fourth

Matt Conigliaronoreply@blogger.comtag:blogger.com,1999:blog-5556257.post-21212817580860097642009-06-01T07:20:00.000-04:002009-06-01T07:37:19.545-04:00

In this decision, the Florida Supreme Court accepted, with modifications, the recommendations of a complex litigation task force and adopted a new rule of civil procedure to address complex civil case management. The court did so over the unanimous objection of all members of the civil rules committee. New rule 1.201 will provide structure for complex litigation cases other than family law cases

Matt Conigliaronoreply@blogger.comtag:blogger.com,1999:blog-5556257.post-368917496704591472009-06-01T07:14:00.001-04:002009-06-01T13:55:49.320-04:00

In 2005, Florida adopted this law, which codified and expanded the common law's castle doctrine to include homes and vehicles and eliminated the duty to retreat from places where a person has a right to be. Some may recall the claims, including those made by major media such as the Washington Post, that Florida was wrongly codifying the ways of the Wild West and making more work for morticians.

Matt Conigliaronoreply@blogger.comtag:blogger.com,1999:blog-5556257.post-76351217996278632372009-06-01T07:12:00.000-04:002009-06-01T07:17:10.992-04:00

This decision from the Fourth District shows that where a client testifies against the client's attorney at a deposition in a malpractice action, that testimony is not protected by the attorney-client privilege. The court denied a certiorari petition seeking to prevent discovery of such a deposition.

Matt Conigliaronoreply@blogger.comtag:blogger.com,1999:blog-5556257.post-85344888378345547282009-06-01T07:10:00.002-04:002009-06-01T07:16:18.498-04:00

In a provision with a lengthy history, the Orange County charter authorizes a local board to review citizen complaints against the county sheriff's deputies and employees. In this thoughtful decision, the Fifth District examined that provision, its place in the county's charter-based government, and the conflicts between the charter's provisions and state statutes governing complaints regarding

Matt Conigliaronoreply@blogger.comtag:blogger.com,1999:blog-5556257.post-78149449800559630962009-06-01T07:10:00.000-04:002009-06-01T07:12:36.452-04:00

The Fifth District would appreciate more communication between counties that have charges pending against a single defendant. In this case, the court concluded a speedy trial violation occurred, requiring charges to be dismissed, after Indian River County would not transfer the defendant to Orange County for trial.

Matt Conigliaronoreply@blogger.comtag:blogger.com,1999:blog-5556257.post-69666045931304510732009-06-01T07:06:00.000-04:002009-06-01T07:11:36.230-04:00

Just a reminder here from the Fourth District that a notice of appeal does not permit an appellate court to review acts committed by the lower court after the appellant filed the notice.

Matt Conigliaronoreply@blogger.comtag:blogger.com,1999:blog-5556257.post-78117131925805380862009-06-01T07:03:00.000-04:002009-06-01T07:09:27.657-04:00

The saga of article X, section 25, continues. In this decision, the Fifth District held that the constitutional provision still known by its 2004 ballot number supersedes the work product privilege with respect to fact work product, though not opinion work product.

Matt Conigliaronoreply@blogger.comtag:blogger.com,1999:blog-5556257.post-68132244225143295572009-06-01T07:01:00.000-04:002009-06-01T07:10:28.692-04:00

A few things kept me away from here over the past two weeks. I completed three briefs, worked on several more, had an oral argument in Miami, took a quick trip to Baltimore, spoke at this function in Orlando, and, by reading this book, waded into a tremendously interesting area that will probably occupy me for some time to come. Of course, I read a good number of opinions, too. It is now time to

Matt Conigliaronoreply@blogger.comtag:blogger.com,1999:blog-5556257.post-83343496232099000182009-05-14T07:12:00.001-04:002009-05-14T09:25:53.431-04:00

Civil practitioners, add this decision from the Second District to the growing pile of modern appellate cases that utilize certiorari to review and quash a trial court order denying discovery. Certiorari in the discovery context has long centered on "cat out of the bag" orders that require discovery to be exchanged. Once out, the proverbial cat is simply not going back into the bag, and any harm

Matt Conigliaronoreply@blogger.comtag:blogger.com,1999:blog-5556257.post-8519411696754898572009-05-14T07:05:00.000-04:002009-05-14T07:14:35.383-04:00

Government employment can lead to some legal peculiarities, such as how employees may receive immunity from the use of statements made under threat of adverse employment action for the failure to answer questions, thus leading to an employee's obligation to answer without Fifth Amendment protection. Such lofty notions were at issue in this decision, but the Second District avoided entangling

Matt Conigliaronoreply@blogger.comtag:blogger.com,1999:blog-5556257.post-6684909796518990792009-05-14T07:01:00.000-04:002009-05-14T07:13:16.077-04:00

Sentencing fans -- you're out there, I know -- can have much fun with this decision from the Second District. The court spends some time on a subject it knows much about (whether a sentence is an illegal one under rule 3.800(a)), a subject it newly encounters (whether an illegal but fully served state sentence's effect on a federal sentence can be corrected by a state court habeas corpus

Matt Conigliaronoreply@blogger.comtag:blogger.com,1999:blog-5556257.post-68097514320644479052009-05-08T08:45:00.001-04:002009-05-08T09:51:34.664-04:00

This week proved to be a briefwriting bonanza for me, and the fun kept me away from here and discussing this week's big news out of Florida -- the U.S. Supreme Court's order granting review of the First District's decisions in Graham v. State and Sullivan v. State. Of course, now that the nation and even the world are interested in these cases, we can stop referring to "State" and start

Matt Conigliaronoreply@blogger.comtag:blogger.com,1999:blog-5556257.post-47356310466945397912009-05-01T09:40:00.003-04:002009-05-01T18:58:44.320-04:00

Today is Law Day. To help promote it, I had the good fortune to speak last week to two history classes at a local high school. I always enjoy speaking with students about the law -- they pay attention and always have terrifically interesting questions about how the law can impact their lives. I do my best to answer, but sometimes the questions are awkward and make you wonder how youthful these

Matt Conigliaronoreply@blogger.comtag:blogger.com,1999:blog-5556257.post-91068160557165202632009-05-01T09:06:00.003-04:002009-05-04T11:43:46.046-04:00

If you follow national legal news, you probably learned from items like this one about Mark Levy's apparent suicide yesterday morning. Mark headed up the appellate group at Kilpatrick Stockton in Washington D.C. I did not know Mark well but I was part of the planning committee that created the first two installments of the Eleventh Circuit Appellate Practice Institute, and Mark joined us for the

Matt Conigliaronoreply@blogger.comtag:blogger.com,1999:blog-5556257.post-10032341072030323002009-04-30T08:29:00.001-04:002009-04-30T08:31:56.046-04:00

Observing that it goes without saying that one cannot serve an oral motion for summary judgment, and of course saying it, the Third District quashed a circuit court's appellate decision affirming an order granting such a motion. You can read the second-tier certiorari decision here.

Matt Conigliaronoreply@blogger.comtag:blogger.com,1999:blog-5556257.post-52757911065047020772009-04-30T08:25:00.004-04:002009-04-30T08:33:15.630-04:00

The federal sentencing guidelines include a sentence enhancement where a defendant's offense involves sexual contact. In this case, the offense involved a self-stimulating act conducted in front of an Internet camera being viewed by an undercover police officer whom the defendant believed to be a minor. Was that sexual contact? Yes, explained the Eleventh Circuit, because that term is defined in

Matt Conigliaronoreply@blogger.comtag:blogger.com,1999:blog-5556257.post-9403877733944584242009-04-28T08:05:00.003-04:002009-04-28T08:11:16.312-04:00

Prosecutors, take note: "harmless" misconduct may still get you named in the Southern Reporter. The Third District's opinion and Judge Ramirez's concurring opinion in this case reflect serious concerns with the prosecutor's closing arguments in the trial below. The court affirmed the defendant's conviction based on harmless error, but the court quoted Judge Blue's wise words from a 1994

Matt Conigliaronoreply@blogger.comtag:blogger.com,1999:blog-5556257.post-77604255280246277462009-04-28T08:03:00.000-04:002009-04-28T08:08:45.977-04:00

The Third Distict would like to make a point about sealing records: if you wish to file something under seal, your motion should utilize the standards set forth in Barron v. Florida Freedom Newspapers, Inc. The court made this point publicly by publishing this order, which denied without prejudice an appellant's motion for leave to file an appendix under seal. The court noted that it must

Matt Conigliaronoreply@blogger.com