Gerald Kogan

The case concerned whether a Florida criminal defendant facing first-degree murder charges could obtain investigative records from a sheriff's office under the state's Public Records Act without triggering reciprocal discovery obligations under Florida Rule of Criminal Procedure 3.220. The defendant had declined to participate in formal discovery but submitted a public records request for reports related to the victim's death and the arrests; the State sought a protective order to prevent disclosure. The Florida Supreme Court answered the certified question in the affirmative, holding that section 119.07(8), Florida Statutes (Supp. 1996), limits a defendant's pretrial access to nonexempt public records regarding a pending prosecution to the parameters of rule 3.220. The Court reasoned that the statute's plain language states its provisions are not intended to expand or limit discovery rights in criminal cases, thereby preventing use of the Public Records Act as an end-run around the reciprocity requirements of the criminal procedure rules.

criminal lawprocedure

The case concerned whether the Florida Constitution bars the prosecution from impeaching a testifying defendant's account at trial by highlighting his silence after arrest but before Miranda warnings were given. The Florida Supreme Court rephrased and answered the certified question in the affirmative, holding that such impeachment is prohibited and approving the district court's reversal of the conviction. The court reasoned that Article I, Section 9 protects a defendant's right to remain silent at the time of arrest regardless of whether warnings have been administered, and that using pre-Miranda silence for impeachment would undermine this state constitutional protection.

criminal lawprocedure

This case involved an inmate seeking a writ of habeas corpus to challenge the Florida Parole Commission's calculation of his conditional release date under section 947.1405, arguing that a non-qualifying offense was improperly used to extend supervision and revoke gain time across concurrent sentences. Relying on its recent decision in Parole Commission v. Cooper, the Florida Supreme Court granted the petition in part and directed the respondents to limit conditional release supervision and any gain time forfeiture solely to the qualifying sentence. The court reasoned that the commission cannot transfer supervision from an expired conditional release-eligible sentence to the end of an overall sentence based on non-eligible concurrent offenses, and that this rule applies regardless of any gain time accrued on the eligible sentence. On rehearing, the court denied the commission's motion and confirmed that the case is controlled by Cooper.

criminal law

The case involved Kevin Walter Pender and Clarence Pender, who were convicted of sexual battery on a child under twelve years of age. They appealed on the ground that the trial court failed to hold a Richardson hearing after the prosecution did not produce a colposcope photograph taken by the examining physician despite a defense subpoena. The Florida Supreme Court reviewed the Fifth District Court of Appeal's affirmance and found that, although the district court had misapplied the harmless-error standard from State v. Schopp, a correct application of that standard showed the discovery violation and lack of a Richardson hearing did not procedurally prejudice the defense. The Court concluded there was no reasonable possibility that the defense's trial preparation or strategy would have been materially different had the photograph been disclosed, rendering any error harmless, and therefore approved the convictions.

criminal lawprocedure

This case involved a former spouse's efforts to enforce a marital settlement agreement incorporated into a 1992 Florida divorce judgment, under which she was to receive 25% of her ex-husband's military retirement pay as part of the property division. After the husband elected to receive Voluntary Separation Incentive payments and later waived portions of those benefits to obtain tax-exempt veterans' disability benefits, reducing the amount available under the original formula, the trial court ordered him to pay the equivalent share from his total benefits received, and the district court affirmed. The Florida Supreme Court held that federal law under the Uniformed Services Former Spouses' Protection Act and the U.S. Supreme Court's decision in Mansell v. Mansell bars direct division or assignment of veterans' disability benefits via agreement, but does not prevent enforcement of the judgment's indemnification clause that requires the husband to make alternative payments to ensure the wife receives the bargained-for monthly amount. The court therefore approved the result requiring payment of 25% of the husband's total retirement benefits but clarified the legal basis for doing so.

family lawfederal powerproperty

This case involved charges against a law firm, its attorneys, employees, and a doctor for racketeering, insurance fraud, grand theft, and related offenses stemming from their handling of third-party insurance claims, including allegations of submitting false medical reports, soliciting unnecessary tests, and filing incomplete demand letters to inflate settlement values. The Florida Supreme Court reviewed a certified question from the district court on whether section 817.234(1), Florida Statutes (1987), which prohibits presenting false, fraudulent, or incomplete insurance claims, is unconstitutionally vague as applied to attorneys representing clients. The court held that the statute is unconstitutionally vague because the term "incomplete" fails to provide attorneys with adequate notice of the prohibited conduct during pre-suit settlement negotiations and is susceptible to arbitrary enforcement. Accordingly, the court affirmed the trial court's dismissal of the counts based on alleged violations of the statute in connection with third-party claims.

criminal lawprocedure

The case Young v. State involved a defendant who, after violating the community control portion of his split sentence for armed robbery and aggravated assault, was resentenced to prison terms that, when combined with prior time served, exceeded the statutory maximum for one of the offenses. The Florida Supreme Court addressed whether the defendant was entitled to credit for time spent on community control against the new incarceration sentence. The court decided in the negative, holding that the defendant was not entitled to such credit. The core reasoning was that under section 948.06, Florida Statutes, no part of the time spent on probation or community control may be credited toward a sentence of incarceration, consistent with prior precedent like State v. Holmes.

criminal lawprocedure

This case concerned whether obstetricians and hospitals participating in Florida's Birth-Related Neurological Injury Compensation Plan (NICA) must provide pre-delivery notice to patients of their participation in the plan as a prerequisite to limiting injured patients to the plan's administrative remedies rather than allowing civil suits. The plaintiffs sued for alleged negligence causing their child's neurological injury, but the defendants moved to dismiss on NICA exclusivity grounds. The Florida Supreme Court held that section 766.316 requires providers to give obstetrical patients notice of NICA participation a reasonable time before delivery when practicable, making such notice a condition precedent to invoking the plan as the exclusive remedy. The court reasoned that the statutory text mandates notice including an explanation of patients' rights and limitations under the plan, consistent with interpretations by multiple district courts of appeal, to ensure patients are informed before their remedies are restricted.

healthcaretorts & liabilityprocedure

The case concerned whether a prior Georgia conviction for robbery by sudden snatching could serve as a predicate offense to sentence the defendant as a habitual felony offender under Florida law. The Florida Supreme Court held that the Georgia offense was not a qualified offense because its elements were not substantially similar to those of Florida robbery. Florida's robbery statute requires the taking of property by force, violence, assault, or putting in fear, whereas Georgia's robbery by sudden snatching can occur with only the minimal force needed to remove property from a non-resisting victim. The court therefore reversed the use of the Georgia conviction for habitual offender sentencing purposes.

criminal law

This case involved a patron who was injured when a vehicle jumped a curb and struck him outside a Hardee's restaurant; he sued the franchisee and franchisor for negligence, alleging they failed to install barriers such as vertical bumper posts or wheel stops in head-in parking spaces directly in front of the entrance. The trial court granted summary judgment to the defendants on the ground that the accident was unforeseeable as a matter of law due to the absence of prior similar incidents. The Florida Supreme Court approved the district court's reversal of that judgment, holding that the lack of prior incidents at the location was not dispositive on foreseeability as it relates to proximate cause or breach of duty. The Court reasoned that other evidence, including expert affidavits on defective design and the use of bumper posts at other local businesses, created material factual issues for a jury on whether the defendants knew or should have known of the risk. It also disapproved a conflicting district court decision that had treated the absence of prior accidents and the presence of a curb as sufficient to establish non-liability as a matter of law.

torts & liabilityprocedure

This case involved a civil RICO forfeiture action under section 895.05, Florida Statutes, in which the Department of Legal Affairs sought forfeiture of real property located in Charlotte and Sarasota Counties from defendant Stephen Ruth after filing the complaint in Polk County where Ruth was incarcerated. The Florida Supreme Court addressed certified questions on whether a circuit court with in personam jurisdiction over the defendant but without in rem jurisdiction over the property could determine ownership rights between the parties or enter a final forfeiture judgment. The court held that personal jurisdiction allows a determination of rights as between the state and the defendant but is insufficient for a forfeiture order that transfers title or binds the world at large, requiring instead that the action be transferred to the court with territorial jurisdiction over the land. The reasoning emphasized the distinction between in personam and in rem jurisdiction, the local action rule for real property disputes, and compliance with statutory forfeiture procedures.

criminal lawpropertyprocedure

The case involved a property developer seeking sewer services from the City of Clearwater for unincorporated land adjacent to the city but within a service area designated under interlocal agreements and a federal 201 wastewater plan. Clearwater conditioned provision of the services on the developer's consent to annexation of the property, which the developer refused, leading to a lawsuit for declaratory relief. The trial court ruled in favor of the developer, finding an obligation to provide service without the annexation condition, but the district court reversed, and the Florida Supreme Court affirmed that decision. The court held that municipalities have no general duty to supply services outside their boundaries, and neither the 201 Plan nor the interlocal agreement affirmatively obligated Clearwater to provide unconditional sewer service to the area.

environmentbusiness & regulatoryproperty

The case involved plaintiff Morris McGhee, who was arrested and allegedly assaulted by Volusia County Deputy George Hernlen during booking while McGhee was handcuffed, after McGhee made a comment about deputies no longer being welcome at his father's business; McGhee sued both Hernlen and the county. The trial court dismissed the claims against the county, and the Fifth District affirmed on the ground that Hernlen's actions were beyond the scope of his duties. The Florida Supreme Court held that section 768.28's waiver of sovereign immunity incorporates the common-law distinction under which sheriffs may be liable for deputies' acts by virtue of office that abuse power (but not for usurpations of power), and that whether Hernlen's conduct fell into the former category presented a jury question rather than grounds for summary dismissal.

civil rightscriminal lawtorts & liability

The case concerned whether Florida's 'rule of consistency' exception to inconsistent jury verdicts remains valid after federal courts overruled the precedent on which it was based. Cynthia Powell and Michael Cross were jointly tried on conspiracy to commit murder charges; the jury acquitted Cross but convicted Powell, and Powell moved to arrest judgment under the rule that an acquittal of all but one jointly tried conspirators requires acquittal of the remaining defendant. The Florida Supreme Court held that such verdicts do not require acquittal of the remaining conspirator, quashing the lower court's decision. It reasoned that inconsistent verdicts are generally permitted in Florida as they may stem from jury lenity, that the rule of consistency is not a 'true' inconsistency involving interlocking charges against one defendant, and that the exception rested on overruled federal authority.

criminal lawprocedure

The case involved a lawsuit by Kathleen Hutt against Union Park Memorial Chapel for injuries sustained in a car accident while she was participating in a funeral procession allegedly organized and led by the chapel. The trial court had dismissed the complaint for failure to state a claim, relying on precedent that found no duty under the traffic statute, but the Florida Supreme Court reversed and held that a funeral director who voluntarily undertakes to organize and lead a funeral procession owes a duty of reasonable care to its participants. The court reasoned that the statute neither imposes nor relieves such a duty but that, under established common law, one who undertakes an action assumes an obligation to perform it with reasonable care to avoid foreseeable harm.

torts & liability

In Kelson v. Kelson, a divorced wife sought to enforce a marital settlement agreement that entitled her to a share of her ex-husband's military retired or retainer pay after he elected to receive Voluntary Separation Incentive (VSI) benefits instead of retirement pay upon leaving the Marines early. The Florida Supreme Court held that VSI benefits are sufficiently similar to retired pay under the parties' agreement, allowing enforcement of the wife's interest, even though the federal Uniformed Services Former Spouses' Protection Act does not expressly cover VSI payments. The court reasoned that the VSI program functions as an early separation incentive comparable to retirement benefits and that federal law does not preempt state courts from enforcing private property settlement agreements encompassing such benefits.

family lawpropertyfederal power

The case involved a DUI arrestee who requested an independent blood alcohol test after a breathalyzer but was not provided affirmative assistance by police, leading to a motion to suppress the breathalyzer results under section 316.1932(1)(f)3, Florida Statutes. The trial court denied suppression and convicted the defendant, but an intermediate appellate court reversed, holding that police had an affirmative duty to transport the arrestee for testing due to the conflict with the mandatory holding period statute. The Florida Supreme Court quashed that decision in part, answering the certified question by ruling that law enforcement must provide reasonable assistance to obtain an independent test, which may range from phone access to transportation depending on the circumstances, but is not limited to a blanket no-duty rule or a mandatory transport requirement. The core reasoning drew from the statutory right to an independent test, distinctions from cases involving active interference, and comparisons to laws in other states that balance the right against detention requirements without imposing an absolute duty on the state.

criminal lawprocedure

This case involved a dispute between Diane Hassen and her insurer State Farm over underinsured motorist coverage after a 1990 car accident caused by an at-fault driver insured by UniSun. The Hassens accepted UniSun's $100,000 policy-limits settlement and released the tortfeasors without State Farm's approval, then sought additional benefits under their State Farm policy, which had been issued before October 1, 1992. The Florida Supreme Court held that the 1992 amendment to section 627.727(6), which permits insureds to settle and release tortfeasors after giving notice if the UM carrier does not timely tender the offer amount, does not apply retroactively to claims under pre-1992 policies. The court reasoned that the amendment is a substantive change in the law governing subrogation rights rather than a remedial or procedural one, so the presumption against retroactive application controls and the statute could not be used to decide the pending claim.

business & regulatorytorts & liability

The case involved a dispute between Continental Insurance Company, a New Hampshire corporation with operations in New Jersey, and Kinney System, Inc., a Delaware corporation headquartered in New York, over workers' compensation insurance premiums for a contract negotiated in the New York area covering employees in multiple states including Florida. Continental, which was registered to do business in Florida and had a claims office there, sued Kinney in Florida circuit court despite Kinney's regional office and parking garages in Dade County; the trial court dismissed the action on forum non conveniens grounds, but the Fourth District reversed based on prior precedent barring such dismissals when a corporate party was licensed to do business in Florida. The Florida Supreme Court resolved a conflict among district courts by holding that forum non conveniens dismissal is not precluded merely because a foreign corporation is doing business, registered, or has a principal place of business in Florida, adopting a more rigorous standard akin to federal law to curb forum shopping in private international disputes, and promulgating a new procedural rule to govern such motions while requiring an adequate alternative forum.

procedurebusiness & regulatory

The case involved whether evidence from a traffic stop for a cracked windshield and stuck wiper, leading to a drug arrest after the driver could not produce a license, should be suppressed as the product of an impermissible pretextual stop under the Fourth Amendment. The Florida Supreme Court answered the certified question by holding that Kehoe v. State requires suppression when the state fails to affirmatively show that a reasonable officer would have made the stop for the observed minor violation, even without proof the stop was actually pretextual. The court rejected both a purely subjective test and a broad objective test, instead adopting the reasonable officer test as the standard for evaluating such stops. It reasoned that this approach aligns with U.S. Supreme Court policy statements favoring objective assessments while preventing abuse through unusually selective enforcement.

criminal lawprocedure