David L. Levy

This case involved a former husband's appeal of a final judgment in a divorce proceeding that awarded permanent and retroactive alimony to the former wife. The Florida appellate court affirmed the alimony awards but remanded the case to modify the judgment. The court reasoned that the written judgment incorrectly stated the period for mortgage payment credits (until the order date instead of the sale date) and improperly awarded the wife one-third of her attorney's fees, contrary to the trial court's oral pronouncement and the parties' stipulations. It relied on the record and precedents requiring conformity between oral rulings and written judgments.

family law

The case involved claims by Nisaratana Russell and her husband against her former employer for hostile work environment sexual harassment, retaliatory discharge after she reported the harassment and filed a workers' compensation claim, negligent retention of the alleged harasser, and loss of consortium. A jury returned a verdict for the plaintiffs, but the trial court granted judgment notwithstanding the verdict on the retaliation counts, ordered a new trial on those counts, and reduced the damages award. The appellate court reversed, concluding that the evidence supported the jury's findings on retaliation, that the trial court provided no adequate basis for a new trial or remittitur, and that any objection to verdict inconsistency had been waived, so the full jury verdict must be reinstated.

labor & employmentcivil rightstorts & liability

This case involved landowners in Monroe County, Florida, who owned parcels platted and recorded between 1924 and 1971 and sought declaratory relief that Section 380.05(18) gave them vested rights to build single-family homes, unaffected by the county's 1979 designation as an area of critical state concern or by later regulations such as the 1986 land development regulations, the Rate of Growth Ordinance, and the 2010 Comprehensive Plan. The trial court granted summary judgment to the landowners, ruling that recordation alone created vested rights that preempted subsequent state and local restrictions and that no showing of reliance or change in position was required. The District Court of Appeal reversed, holding that the statute preserves rights only to the extent they qualify under common-law vesting standards (good-faith reliance on government action plus substantial change in position or extensive obligations) and that mere recordation is insufficient, then remanded for further proceedings.

propertyenvironmentbusiness & regulatory

The case involved residential property owners on Big Pine Key in Monroe County who applied for and received approvals under the county's Rate of Growth Ordinance but were denied building permits due to inadequate traffic levels of service on U.S. Highway 1 under concurrency requirements in the Land Development Regulations. The owners petitioned for a writ of mandamus to compel issuance of the permits, along with declaratory relief and damages for alleged temporary and permanent takings of their property. The court affirmed the denial of mandamus relief because the county later granted a beneficial use determination authorizing the permits subject to conditions, including coordination with the U.S. Fish and Wildlife Service where required, rendering that claim moot. It also rejected the takings claims because the owners failed to exhaust available administrative remedies under Florida statutes, such as seeking de minimis impact exceptions or other concurrency relief procedures. The court further held that the planning director's actions did not involve unlawful delegation of authority and that no new ordinances were needed for the concurrency enforcement.

propertyenvironmentprocedurefederal power

Jerry Ducksworth appealed his conviction and sentence for robbery with a weapon, challenging the trial court's imposition of a life sentence as a Habitual Violent Felony Offender along with concurrent 30-year minimum mandatory sentences as a Prison Release Reoffender and as a three-time violent felony offender. The appellate court affirmed the conviction and life sentence but reversed in part, striking the 30-year mandatory minimum sentence imposed as a three-time violent felony offender. The court reasoned that under Florida Supreme Court precedent in Grant v. State, the Prison Release Reoffender Act only authorizes a greater sentence than provided by the Act itself and does not permit an equal concurrent sentence under another habitual offender provision.

criminal lawprocedure

The case involved Arthur Willis Foley, who filed a petition for a belated appeal of his criminal sentence in Florida state court. The District Court of Appeal of Florida, Third District, granted the petition for belated appeal, permitting review of the sentence despite the timing issue. On the merits of the appeal, the court affirmed the sentence under review without further elaboration in the opinion.

criminal lawprocedure

This case involved a mortgage foreclosure action by Chase Manhattan Bank against Paul De Vico, where the bank obtained a default judgment and sold the property after using constructive service. De Vico challenged the sale and judgment, arguing that the bank's service attempts were inadequate. The Florida Third District Court of Appeal reversed the trial court's denial of relief, holding that the bank failed to make a sufficient honest and conscientious effort to personally serve De Vico before resorting to constructive service, as shown by only two attempts at his New York address. The court directed that the default, final judgment, and third-party sale be vacated.

propertyprocedure

In Zamora v. State, the defendant was sentenced under a cooperation agreement he had violated and later moved to reduce the sentence on the basis that he had substantially assisted police, though not to the extent required. The trial court denied the motion without an evidentiary hearing. On appeal, the Florida Third District Court of Appeal dismissed the case, determining that the order was an unappealable denial of a motion to reduce sentence under Florida Rule of Criminal Procedure 3.800(c), equivalent to former motions to mitigate under Rule 3.800(b). The court relied on precedents such as Clewis v. State and Oser v. State, while allowing for possible post-conviction relief applications.

criminal lawprocedure

This case concerned whether Lincoln Insurance Company had a duty under its general liability policy to defend and indemnify Home Emergency Services for a spoliation of evidence claim brought by employee Albert Milian after a ladder accident. Milian had sued the ladder manufacturer and distributor for his injuries and alleged that HES negligently or intentionally lost the ladder, impairing his ability to prove the products liability case. The trial court granted summary judgment in favor of HES, finding coverage, but the appellate court reversed, holding that the policy provided no coverage. The court reasoned that spoliation damages compensate for the loss of an intangible interest in evidence preservation and the resulting inability to recover in the underlying action, not for "bodily injury" or "property damage" as defined in the policy.

torts & liabilityprocedure

The case involved Humberto Hernandez's conviction as an accessory after the fact to voter fraud, stemming from his assistance to three individuals with false residency documents during his 1997 campaign for Miami City Commissioner. Hernandez appealed on the ground that the trial court erred by denying his request for a special jury instruction requiring unanimous agreement on which specific person or persons he had aided. The appellate court affirmed the conviction, ruling that Hernandez had waived any challenge to the information's format by failing to move for dismissal under Florida Rule of Criminal Procedure 3.190 before or at arraignment. The court further held there was no fundamental error, as the single count properly charged assistance to any or all of the named individuals and the standard jury instructions adequately addressed the elements of the offense.

criminal lawelectionsprocedure

The case involved a bank suing the maker of two promissory notes and the individual guarantors to recover a deficiency after default, repossession via writ of replevin, and liquidation of the collateral securing the loans. The trial court granted summary judgment to the bank, finding no issues of fact regarding default and rejecting the defendants' affirmative defenses and counterclaim alleging commercially unreasonable disposition of the collateral. The appellate court reversed, holding that under Florida's UCC the debtor could not waive the requirement of commercially reasonable disposition of collateral and that a genuine issue of material fact existed on that issue as to the maker; it further analyzed whether the guarantors' pre-default waivers of UCC rights were enforceable.

business & regulatoryprocedure

The case involved current and former City of Miami Beach employees who had voluntarily switched from the city's mandatory general employees retirement plan to a new unclassified plan in 1988 that initially offered higher benefits. After the switch, the city reduced the maximum benefit under the unclassified plan from 90% to 80% of average final compensation, which the employees argued left them worse off than if they had remained in the original plan. The trial court granted summary judgment for the city, and the appellate court affirmed, holding that the city was permitted by substantive law to make prospective reductions to benefits in these mandatory plans and was not equitably estopped from doing so. The decision relied on precedents allowing modifications to public pension plans on a forward-looking basis and cases declining to apply estoppel against the government in this context. A dissent would have reversed for a trial on the estoppel claim.

labor & employment

The case involved a challenge to the admission of horizontal gaze nystagmus (HGN) test evidence in a driving under the influence (DUI) trial, where the test was administered by a highway patrol trooper rather than a certified Drug Recognition Evaluator (DRE). The court denied the petition for certiorari, upholding the conviction. It reasoned that the trooper had received appropriate training and had substantial experience with the test, making his testimony admissible, especially since a confirmatory breath test result exceeding the legal limit was also presented. The court clarified that its prior ruling did not require a DRE for HGN testimony in all cases.

criminal lawprocedure

The case involves Lloyd M. Jones appealing the denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, following his conviction for burglary of an unoccupied conveyance. Jones claimed ineffective assistance of trial counsel for failing to investigate and call two witnesses who could provide exculpatory evidence, including an alibi. The District Court of Appeal of Florida, Third District, affirmed the trial court's summary denial without an evidentiary hearing, reasoning that the record conclusively established no entitlement to relief, particularly in light of Jones's own post-arrest admissions offering to return the stolen toolbox.

criminal lawprocedure

In Hayes v. State, the defendant was convicted after a jury trial of armed robbery, armed burglary of a structure, and grand theft of a motor vehicle based on an incident in which he and accomplices entered a home, stole property including van keys, and then took the van outside. He appealed both the convictions and the denial of his motion to correct sentencing errors under Florida Rule of Criminal Procedure 3.800(a). The Third District Court of Appeal affirmed the convictions, finding no double jeopardy violation because the theft of the van was a sufficiently separate act from the taking of items inside the home, no error in redirect examination of a witness, and no preserved error regarding jury instructions. However, the court remanded for resentencing after identifying multiple scoresheet errors, including improper inclusion of victim injury points for emotional trauma, miscalculation of points for unscorable federal convictions, and incorrect scoring of analogous Florida offenses for federal crimes. The State conceded the need for a new sentencing hearing.

criminal lawprocedure

This case involved two banks seeking to enforce judgment liens against the sale proceeds of a homestead property owned by the Papadopolous family. The homeowners had obtained a second mortgage on the property to pay personal debts and planned to use the net proceeds from selling the home to purchase a new homestead. The trial court ruled that the judgment liens did not attach to the property or the proceeds, provided they were reinvested in a new homestead, and the appellate court affirmed this decision. The court reasoned that under Florida's homestead exemption, creditors cannot attach to exempt property or its proceeds when intended for reinvestment, and a mortgage on homestead cannot be challenged by judgment creditors.

property

In this case, a defendant who had been convicted in Florida state court filed a motion requesting transcripts from his sentencing hearing, claiming he needed them to prepare a motion to correct his sentence under Florida Rule of Criminal Procedure 3.800. The trial court denied the request without prejudice, and the defendant appealed. The Third District Court of Appeal affirmed the denial. The court explained that transcripts are not required to file a legally sufficient post-conviction motion, as the defendant must first submit the motion based on his own recollection of the proceedings before obtaining relevant record portions. The same principle applies whether the motion is brought under Rule 3.850 or Rule 3.800.

criminal lawprocedure

The case involved Maximiliano Hernandez appealing the denial of his fourth motion for postconviction relief under Florida Rule of Criminal Procedure 3.800, in which he claimed that his June 1994 sentence of 20 years in prison followed by 10 years of probation—imposed after a second probation violation—was illegal because it exceeded the probationary portion of his original 1992 sentence of 12 years prison plus 3 years probation. The court affirmed the denial of the motion. It reasoned first that the successive motion was barred because it failed to allege new or different grounds for relief and prior determinations had been on the merits, and second that the sentence was legal because, for a probationary split sentence, the trial court upon violation could impose any sentence it could have imposed initially, with credit for time served and subject to guidelines.

criminal lawprocedure

The case concerned Alvoid Lormet English's appeal of his conviction for purchase and possession of cocaine, based on the trial court's denial of a peremptory strike against a prospective juror. Defense counsel sought to strike the venireperson for rolling his eyes and appearing not to understand or approve of counsel's questions, but the trial court refused because it had not personally observed the behavior. The Third District Court of Appeal reversed the conviction and remanded for a new trial, ruling that the proffered reason was race-neutral and non-pretextual under Melbourne v. State and related precedent, so the strike should have been permitted if the described conduct occurred.

criminal lawprocedure

In Woodson v. State, the defendant appealed his convictions for burglary with an assault or battery while armed and two counts of sexual battery committed with a deadly weapon, raising three issues on appeal. The Florida Third District Court of Appeal affirmed the convictions and sentences. The court held that the defendant's general dissatisfaction with his counsel did not require a Nelson hearing on counsel's effectiveness. It also found no abuse of discretion in denying a third deposition of the state's DNA expert, as the defense had received relevant documentation and used it for cross-examination. Finally, the challenge to the charging information was not preserved for review because it was not raised before trial.

criminal lawprocedure