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 A cumulative listing of headnotes for opinions appearing in the next issue of The Florida Law Weekly. A link to each opinion is provided. will not be active in this sample area.
Added on Tuesday, September 23Workers' compensation -- Employer/servicing agent's failure to timely file a notice of denial of compensability was not procedural default, and did not forfeit their rights to contest compensabilityALACHUA COUNTY BOARD OF COUNTY COMMISSIONERS and PALMER & CAY/CARSWELL, Appellants, v. EMANUEL STARLING, Appellee. 1st District.
Criminal law -- Jurors -- Peremptory challenges -- Absence of defendant
Criminal law -- Juveniles -- Sentencing -- Error to reject Department of Juvenile Justice recommendation of community control and to impose moderate risk commitment without first obtaining recommendation from Department as to restrictiveness level -- Error to enter single order
of adjudication and of post commitment community control applicable to all offenses -- Error to fail to state duration of commitment and of post commitment community control -- No merit to contention that errors were not preserved for appellate review -- Section 924.051(4), Florida
Statutes (Supp. 1996), does not apply to juvenile delinquency proceedings -- Question certified
Criminal law -- Double jeopardy -- Appeal from conviction and sentence for assault and burglary with assault of same victim during same incident -- Double jeopardy violation is fundamental error permitting review of such claim on appeal as to both convictions and sentences -- Perrin
v. State, Graham v. State, Kio v. State, and Salgat v. State, receded from, to extent they hold that only legality of sentences, but not convictions, may be raised for first time on appeal -- Silence, by itself, does not demonstrate free and knowing waiver of double
jeopardy claim, either as to conviction or sentence -- Defendant's conviction and sentence for assault vacated -- Case remanded for correction of scrivener's error
Licensing -- Board of Pilot Commissioners -- Remanded with directions that Board determine whether pilot's violation of statute by executing inappropriate rudder order, standing alone, as opposed to an inappropriate rudder order in conjunction with a late turn, warrants revocation
of license
Administrative law -- Division of Florida Land Sales, Condominiums and Mobile Homes -- In revoking prior registration order involving parcels of subdivided land, Division erroneously relied on general cease and desist statute rather than more specific revocation statute which contains
more stringent criteria -- Due process rights were violated where charging notices failed to allege, and final order failed to include findings which would support revocation of registration orders under revocation statute
Criminal law -- Community control revocation -- Jurisdiction -- Necessary condition precedent to a conclusion that revocation process has been set in motion is a finding that an arrest warrant has been issued -- Fact that an affidavit has been signed, by itself, not sufficient to support
conclusion that revocation process has been set in motion -- Arrest warrant is not issued for purposes of setting revocation process in motion until it has been delivered to the appropriate county sheriff for execution -- Once defendant raised issue of trial court's jurisdiction, burden was
on state to establish that revocation had been timely commenced -- Where state failed to establish that arrest warrant had been delivered to sheriff for execution before defendant's probationary term had expired, affidavit alleging violation of community control must be dismissed and
defendant is entitled to discharge -- Question certified: When an arrest warrant is signed by a judge based upon an affidavit alleging a violation of probation or community control, is delivery of the warrant to the appropriate county sheriff for execution a necessary condition precedent
to commencement of the revocation proceeding for the purpose of determining whether the proceeding has been commenced before the expiration of probation or community control?
Workers' compensation -- Hearings -- De novo -- Illegible transcript -- Cause remanded for hearing de novo, where court reporters were unable to transcribe portions of testimony and agreed that it was impossible to prepare a proper transcript
Criminal law -- Sentencing -- Appeals -- Imposition of adult sanctions pursuant to section 39.059(7) on a child prosecuted as an adult is not strictly a juvenile proceeding, but is in the nature of a hybrid procedure -- Provisions of Criminal Appeal Reform Act, requiring preservation
of issues for appeal, applies to sentencing of juveniles as adults -- Application of act does not obviate right to appeal guaranteed in section 39.059(7), but requires that any such error be preserved -- Juveniles sentenced as adult in criminal proceedings not only required to preserve error
for review, but afforded opportunity to do so, pursuant to Rule 3.800(b) -- Defendant's claim that trial court erred in imposing departure sentence not subject to appellate review where he was sentenced as adult after effective date of Criminal Appeal Reform Act, and had the opportunity
to preserve error, but failed to do so
Criminal law -- Evidence -- Error to permit prosecution to permit expert testimony that alleged child victim exhibited symptoms consistent with those of child suffering from child sexual abuse accommodation syndrome -- Error not harmless under circumstances where jury had announced
deadlock and was only able to reach verdict after being given Allen charge
Criminal law -- Probation -- Condition -- Error to impose condition that defendant pay public defender's lien without advising defendant of right to hearing to contest amount
Administrative law -- Medicaid -- Agency for Health Care Administration required to explicate emerging policy of requiring mental health services provider to have annual contract with Alcohol, Drug Abuse and Mental Health program office, rather than simply any form of contract
with Department of Health and Rehabilitative Services, where it only began imposing requirement when it sent Medicaid cancellation letter to provider -- Testimony of AHCA and HRS officials, and prior orders of agency which did not establish that AHCA consistently construed statute
as requiring providers to have annual contracts with ADM, and which contained no acknowledgement that ADM requirement was incipient policy, did not provide means for AHCA to evade requirement that agency explicate incipient policy in hearing -- Final order canceling Medicaid
provider number reversed, and case remanded for purpose of permitting AHCA to explain its incipient policy, or for AHCA to remand for further proceedings
Mandamus -- Department of Corrections -- Where prisoner exhausted administrative grievance process within Department and filed mandamus petition with circuit court alleging Department committed several errors in its disciplinary report against him, circuit court erred in dismissing
petition based on finding that it lacked jurisdiction and that petition should have been filed in district court of appeal -- Remand to permit trial court to consider petition
Criminal law -- Second degree murder -- Although trial court erred in denying request for jury instruction on defense of voluntary intoxication of defendant charged with first-degree murder, error was harmless where defendant was convicted of second-degree murder -- Although instruction
may have influenced jury to find defendant could not have formed specific intent to commit first-degree murder, instruction could not have legally influenced jury's deliberations regarding lesser included offense of second-degree murder, which requires proof only of general
intent
Workers' compensation -- Temporary total disability and medical benefits payable through date on which judge of compensation claims found claimant reached maximum medical improvement -- Finding that claimant had no work restrictions once maximum medical improvement was
attained vacated
Administrative law -- Forfeiture of rights and benefits under Florida Retirement System -- Appeal from order of Division of Retirement forfeiting all rights and benefits under Florida Retirement System due retired sheriff, who was charged in five count indictment, and pled guilty to
charge of conspiracy to obstruct justice, as result of negotiated plea -- No error in finding that sheriff committed acts with willful intent to defraud public of right to receive faithful performance of his duties as public officer -- No merit to argument that what sheriff did was unrelated
to position as sheriff, and that it was not demonstrated, as required by statute, that he was convicted of felony by which he realized or attempted to realize advantage through use or attempted use of his office -- Sheriff admitted he was guilty of charge of conspiracy to obstruct justice,
and agreed that he tried to prevent suspect from cooperating with law enforcement, so suspect would not communicate knowledge about sheriff's participation in underlying marijuana conspiracy -- Sheriff had statutory duty to cooperate with enforcement of laws, and instead provided
information to drug traffickers regarding confidential law enforcement efforts, counseled others to misrepresent facts, and was involved in delivery of funds for suspect's attorney's fees -- Acts committed by sheriff in furtherance of offense were inseparably intertwined with his position
as sheriff -- Acts set forth in federal indictment and in factual basis to plea agreement satisfy elements of tampering with witness or informant, a third degree felony under Florida law, a conviction for which would be grounds for forfeiture of retirement benefits, and not conspiracy
to tamper with a witness
Jurisdiction -- Action against foreign shipowner for failure to provide maintenance and cure -- Defendant's contacts with Florida, consisting of port stops at direction of ship's charterer, engaging husbanding agents, soliciting Florida employee through a nonresident union, telephoning
party when he was in Florida, and maintenance of an escrow account in state, do not satisfy requirements for specific personal jurisdiction -- Such activities do not satisfy the connexity or causal connection requirement of specific personal jurisdiction because plaintiff's suit does not
arise out of or relate to defendant's contacts with Florida
Public utilities -- Public Service Commission did not err in expanding wastewater service territory of privately held utility, despite city's argument that expansion was inconsistent with validly approved comprehensive plan -- PSC correctly applied requirements of statute, where statute's
plain language only required PSC to consider comprehensive plan, and expressly granted discretion in decision of whether to defer to plan -- Order plainly demonstrated that PSC considered city's comprehensive plan
Workers' compensation -- Expert medical advisors -- Judge of compensation claims erred in denying employer's request that claimant be evaluated by an expert medical advisor and in awarding permanent total disability benefits where claimant's mental health care providers disagreed
about whether or to what extent industrial accident was responsible for claimant's psychological condition, whether or to what extent industrial accident had resulted in permanent psychological impairment, and whether or to what extent claimant's condition was disabling -- JCC erroneously
found motion for appointment of expert medical advisor to be untimely -- Party who has complied fully with all pretrial orders should not be foreclosed from requesting evaluation by an expert medical advisor when request is made with reasonable promptness once a conflict in health
care providers' opinions surfaces -- Requirements of statute providing for evaluation by expert medical advisor are mandatory and not directory
Attorney's fees -- Administrative law -- Public Employees Relations Commission did not abuse discretion in denying attorney's fees to Department of Corrections chaplain, whose discipline was reduced from dismissal to 60 day suspension by Commission -- Chaplain challenged dismissal
on ground that employer had no just cause to discipline him at all, and although he did establish that department failed to prove misconduct in regard to one of three charges, he did not prevail as to remaining charges, and dismissal was mitigated to suspension only because of long
and exemplary employment history
Criminal law -- Post conviction relief -- Plea -- Voluntariness -- Remand for evidentiary hearing or attachment of portions of record which conclusively show that defendant is entitled to no relief on his claim that his plea was involuntary
Criminal law -- Speedy trial -- Trial court's extension of speedy trial period for exceptional circumstances did not amount to abuse of discretion under circumstances where prosecutor sent defendant's blood samples to laboratory for DNA testing within sufficient period of time to permit
completion of testing before expiration of speedy trial period if laboratory personnel had been in position to begin testing promptly upon receipt of samples, inability of laboratory personnel to commence testing immediately because laboratory was off-line was not fault of prosecutor,
and by the time the prosecutor learned that laboratory had been off-line for many weeks and had done no testing on the samples, it was, as defense counsel conceded, too late for any laboratory to complete the testing within speedy trial period
Contempt -- Direct criminal contempt -- Reversible error to omit from written order the factual basis for judgment of contempt and to fail to afford defendant opportunity to show cause as to why he should not be held in contempt on first of two contempt charges -- Trial court may
punish direct contempt summarily -- Governing rule requires that written judgment contain recital of facts on which adjudication of guilt is based and that trial court give defendant opportunity to present evidence of mitigating circumstances -- Omission from written order of factual
basis for contempt judgment constitutes reversible error -- Rule does not require that defendant be appointed counsel to represent him in defense of direct criminal contempt charges or that formal hearing be held
Criminal law -- Sentencing -- Correction -- Appeals -- Trial court erroneously represented that defendant could appeal order denying his motion to modify or mitigate sentence within thirty days -- Order not appealable
Unemployment compensation -- Voluntary termination of employment without good cause attributable to employer
Criminal law -- Post conviction relief -- Nolo contendere plea -- Voluntariness -- Error to summarily deny motion alleging that trial court failed to inform defendant of consequences of being sentenced as habitual offender when he entered his nolo contendere pleas without attaching
portions of record refuting claim -- Although transcript of plea hearing indicated court informed defendant of maximum habitual offender term he could receive for the charged offenses, court was required to inform defendant of effect habitualization would have on gaintime, provisional
credits, and eligibility for early release -- Remand for further proceedings
Criminal law -- Evidence -- Motion in limine -- Violation of order -- Where a party makes a successful motion in limine, but then fails to make a contemporaneous objection to evidence submitted in violation of order in limine, alleged error will not be preserved for appellate review
-- Where defendant's motion in limine to exclude any testimony from any law enforcement officer that would indicate officer knew defendant from prior contacts or violations of law was granted, and testimony was presented in violation of order in limine, because defendant failed
to make a contemporaneous objection when testimony was offered, issue was not preserved for appeal
Criminal law -- Costs -- Mandatory -- Trial court erred by failing to include in its written order citation to proper statutory authority for court costs imposed -- Although mandatory court costs of up to $253 may be imposed without orally announcing the statutory authority at sentencing
hearing, written order must cite proper statutory authority -- Attorney's fees -- Error to impose attorney's fees without advising defendant of right to contest amount -- Defendant has 30 days to file written objection and if filed, lien must be stricken and a new lien may be imposed
after notice and hearing
Criminal law -- Search and seizure -- Record supports trial court's oral denial of motion to suppress contraband found during initial search of main portion of defendant's residence on ground that defendant consented to search, and further supports suppression of contraband found after
defendant told officers to get a warrant -- Written order to be corrected to conform to oral pronouncement -- State's claim that inevitable discovery rule should have been applied not considered on appeal where claim was not presented to trial court
Criminal law -- Error to impose public defender's lien without advising defendant of right to contest amount of lien -- Remand without prejudice to reimpose the lien upon compliance with Florida Rule of Criminal Procedure 3.720(d)(1)
Criminal law -- Sentencing -- Probation revocation -- Split sentence -- Credit for time served -- Time served on probation -- Split sentence of fourteen and one-half years imposed upon revocation of defendant's probation was illegal because, when combined with the ten months defendant
had previously served on probation, the combination of new sanctions exceeded the fifteen year statutory maximum for underlying offense
Criminal law -- Scheme to defraud -- Grand theft -- Convictions arising out of high-pressure sale of dance lessons at dance studios -- Although there was no direct evidence of defendant's involvement in high-pressure selling which formed basis for scheme to defraud and grand thefts,
involvement was sufficient that he must have had knowledge of the tactics employed at dance studios -- Evidence sufficient to support conviction for scheme to defraud -- Sentencing -- Guidelines -- Departure -- Disagreement with level of punishment offered by guidelines and finding
that crimes were perpetrated with heightened degree of premeditation not valid reasons for departure -- Evidence insufficient to support departure based on emotional trauma to victims -- Number of victims and time over which crime was committed are factors inherent in scheme to
defraud and are not valid reasons for departure -- Defenselessness of victims not valid reason for departure in view of victims' testimony that they knew they were not required to purchase the lessons and knew that they had right to cancel contracts, which all contained three-day cancellation
provision -- Efforts to gain victims' confidence in order to convince them to purchase dance lessons not type of fiduciary relationship or near fiduciary relationship which would support departure for breach of trust -- Use of agents and employees to increase number of victims was
factor inherent in offense of conviction where, as charged and argued to jury, defendant's guilt was dependent upon state's proof that those employed by dance studios were committing fraud and that defendant should be held responsible -- Protection of public and age of victims not
valid reasons for departure under circumstances -- Remand for resentencing within guidelines
Added on Monday, September 22Civil procedure -- Costs -- Expert witness fees -- Trial court abused its discretion in awarding fees for expert witnesses who did not testify at underlying civil trial and who were not deposed -- Administrative appeal filing fee -- No rule or statute permits recovery of costs incurred in an administrative appeal that was not part of the civil action -- Fee plaintiff paid to pursue an administrative appeal of county's denial of its application for tent permit was not an expense incurred in prosecuting civil action, because circuit court was not acting in appellate capacity to review administrative hearing examiner's rulingLEE COUNTY, FLORIDA, a political subdivision of the State of Florida, Appellant, v. GALAXY FIREWORKS, INC., a Florida Corporation, Appellee. 2nd District.
Criminal law -- Sentencing -- Habitual offender -- Error to classify defendant as habitual violent felony offender without substantiated proof of prison release date -- Defense counsel's general statements that defendant could be classified as habitual offender did not waive duty of trial
court to make specific findings on record that defendant met requirements for habitualization -- Because defendant did not object to habitualization on grounds that court did not have sufficient evidence of release date, state to be afforded opportunity on remand to present substantiated
proof of prison release date
Criminal law -- Trial court erred in imposing a public defender's lien without advising defendant that lien would be imposed and that he had a right to contest amount of lien -- Probation -- Conditions -- Error to impose condition requiring monthly payment to First Step without citation
to statutory authority
Criminal law -- Plea -- Withdrawal -- Trial court in refusing to honor defendant's plea agreement should have given defendant opportunity to withdraw pleas -- Remanded for trial court to allow defendant to withdraw his pleas
Wrongful death -- Workers' compensation immunity
Estates -- Attorney's fees -- Statute requires petitioner for attorney's fees to give informal notice to personal representative and to all persons who would be impacted by award and allows attorney to apply for these fees at any time during the pendency of the estate -- Trial court erred
in denying petition to tax litigation attorney's fees against estate for legal fees incurred in contesting probate of will procured by exercise of undue influence, even though entitlement to attorney's fees was not pled in initial pleading filed in probate -- Trial court directed to grant petition
and to determine from which part of estate fees should be paid
Torts -- Medical malpractice -- Limitation of actions -- Conflict of laws -- Significant relationship -- Where both plaintiff and defendant were West Virginia residents at time of alleged malpractice, injury occurred in West Virginia, and physician-patient relationship began and ended
in West Virginia, West Virginia statute of limitations is applicable -- Conflict certified -- Question certified: Does the significant relationship test adopted in Bates v. Cook, 509 So. 2d 1112 (Fla. 1987), for use in applying Florida's borrowing statute, section 95.10, Florida
Statutes, also apply to cases involving Florida's statute of limitations, Section 95.11, Florida Statutes?
Arbitration -- Arbitrable issues -- Where count of complaint claiming breach of joint venture agreement was dismissed on ground that agreement contained clause requiring parties to submit any dispute over terms of agreement to arbitration, plaintiffs subsequently filed demand for
arbitration, and defendants filed counterclaim in arbitration proceedings alleging fraud, breach of fiduciary duty, and interference with business relationship, trial court erred in referring issue of arbitrability of counterclaim to arbitration panel -- Where agreement did not contain language
authorizing arbitration panel to decide arbitrability issue, court must determine whether counterclaim is subject to arbitration -- Error to deny emergency motion to determine that issues raised in counterclaim were not subject to arbitration
Receivership -- Mortgage foreclosure -- Error to appoint receiver where mortgagee failed to establish waste or any other basis for receivership -- Appointment of receiver is not matter of right even if mortgage so provides and contains an assignment of rents clause -- In deciding whether
to enforce mortgage provision for appointment of receiver, trial court must balance mortgagor's right to own and possess its property against interests of mortgagee in protecting its security in property -- Mortgagor was not required to establish that value of property was greater than
mortgage debt where all rental income was being applied to the debt -- Alternative methods existed to protect mortgagee's security interest without depriving mortgagor of its right of possession, including enforcing assignment of rents clause and requiring mortgagor to deposit rents
into registry of court
Creditors' rights -- Fraudulent transfers -- Where funds derived from sale of homestead property and other funds jointly held by husband and wife were deposited in account established pursuant to escrow agreement, and funds from that account were subsequently transferred to a seller
of a residence that was titled solely in the name of the wife, trial court erred in finding that escrow agreement failed to establish a tenancy by the entireties in the escrowed funds and that amount transferred for purchase of property titled solely in name of wife was a fraudulent transfer
-- Error to find that escrow agreement failed to establish a tenancy by the entireties because it failed to provide a statement of permission for one spouse to act for the other -- Fact that funds are held in escrow to be withdrawn by the escrow agent only at the direction of both husband
and wife does not preclude the existence of an entireties estate in the funds
Criminal law -- Sentencing -- Consecutive sentences -- Trial court erred when it ordered defendant's sentence to run consecutively to any sentence to be imposed in pending case -- Probation -- Conditions -- Condition stating that defendant's sentence for aggravated battery runs consecutive
to any VOP or conditional release from incarceration in foreign state stricken -- Condition requiring defendant to pay for substance evaluation stricken
Criminal law -- Sentencing -- Order -- Written order must be corrected to conform to court's oral pronouncement
Criminal law -- Double jeopardy -- Trial court erred in declaring mistrial over defendant's objection after trial court, without inquiry, excused a juror who had admitted to having a couple of beers at lunch and defendant refused to proceed with five-person jury -- Manifest necessity
for mistrial not demonstrated where there was no inquiry into precise condition of allegedly impaired juror
Criminal law -- Discovery -- Reciprocal discovery -- Order permitting defendant to withdraw demand for discovery, and denying State's motion to compel reciprocal discovery is reversed
Contracts -- Leases -- Torts -- Economic loss rule -- Exceptions -- Damage to other property -- Trial court properly granted summary judgment in favor of lessor on lessee's claim that lessor was negligent in selecting contractor responsible for making improvements to leased premises,
based upon determination that any duty imposed upon lessor to hire competent contractor to fulfill terms of lease agreement was duty stemming from that agreement -- Lessor's alleged breach of building code does not constitute exception to economic loss rule where damages sought
were no different from those that could have been asserted in action for breach of lease agreement -- Damage to lessee's business computers did not fall within ``other property'' exception to economic loss rule -- Lessee's computers were fundamentally related to commercial endeavor
contemplated by the bargained-for lease and build-out agreement, and damage to computers during construction was proper subject of risk allocation pursuant to lease negotiations -- Lessee's failure to contend with those risks during negotiation process cannot be remedied by tort
action
Criminal law -- Sentencing -- Remand for entry of written order reflecting decision to impose adult sanctions on defendant, who was juvenile at time of offense
Child custody -- Visitation -- Grandparents -- Statute providing for reasonable grandparent visitation rights where one or both parents of child are deceased and where such visitation is found to be in child's best interests is constitutional -- Statute is narrowly tailored to promote state's
compelling interest in protecting children after parent has died by preserving grandparent visitation that is in child's best interests and contains inherent safeguards which protect fundamental rights of parents -- Finding that visitation by paternal grandparents was in best interests of child
supported by competent substantial evidence, including evidence that child's mother had died, her father had remarried and was in process of divorcing child's adoptive mother, child's father no longer lived in child's home, and child was being cared for by her adoptive mother -- Order
was overly broad in that it allowed grandparents to mandate child's religious development by permitting extended visitation every other Friday evening for Sabbath dinner in addition to numerous specific religious holidays -- Court has additional reservations concerning whether frequent
dinners and visits are warranted where trial court found parents to be fit and testimony revealed that frequent visits would be destructive to child's normal pattern of living -- Question certified: May state constitutionally allow reasonable grandparent visitation where one or both parents
of child are deceased and visitation is determined to be in best interests of child
Unemployment compensation -- Record supported finding that claimant voluntarily quit job for personal reasons, disqualifying him from unemployment compensation benefits
Unemployment compensation -- Claimant's refusal to ``work with owner's wife'' did not amount to misconduct disqualifying him from unemployment compensation benefits
Estates -- Torts -- Conspiracy -- Wills -- Evidence insufficient to establish existence of a conspiracy to deprive decedent of money and assets during her lifetime through undue influence and/or breach of fiduciary duty -- Evidence that decedent's sister telephoned her son and asked
him to render assistance to decedent after decedent's husband had died not sufficient to establish conspiracy -- Error to find bank negligent for hiring, retention, and supervision of two employees where that claim was neither pled nor tried by consent -- Failure to object to evidence
that bank failed to supervise and train two employees cannot be construed as implicit consent to try an unpled theory when the evidence was relevant to issue of bank's breach of fiduciary duty to decedent, an issue which was being properly tried -- Wills -- Lower court erred in admitting
earlier will into probate after concluding that most recent will was void due to decedent's lack of testamentary capacity and/or nephew's undue influence -- Finding that decedent lacked requisite testamentary capacity to execute most recent will was erroneous as matter of law where,
although physician opined that decedent suffered from severe dementia which would progressively worsen and that her judgment was significantly impaired on date of examination, physician categorically testified that he was unable to offer any opinion as to decedent's testamentary
capacity at any time; will contestant offered no evidence that decedent was incompetent or not lucid at time she made last will; and evidence adduced at trial was contrary to finding of lack of testamentary capacity -- Undue influence -- Although nephew was substantial beneficiary
under challenged will and did not contest fact that he enjoyed confidential relationship with decedent during her final years, evidence was insufficient to establish that he was active in procurement of will -- Record does not support lower court's finding that nephew procured attorney
for decedent or that nephew was even familiar with the attorney who prepared contested will, but instead indicated that attorney was randomly selected from yellow pages by virtue of his proximity to decedent and his specialty -- Evidence did not establish that nephew gave any instructions
to attorney as to preparation of challenged will, nor was there any evidence that nephew had knowledge of dispositive provisions of decedent's proposed final will -- Nephew was not present at execution of challenged will, all witnesses to execution of will were independently procured
by attorney, and nephew did not see or take possession of documents after decedent executed them -- Even if presumption of undue influence properly arose, presumption was rebutted by reasonable explanation that decedent changed will in aftermath of bitter dispute with former beneficiary
over the proceeds of a treasury bill which decedent believed beneficiary had wrongfully misappropriated and refused to return to decedent -- Remand with instructions that decedent's last executed will and amendment thereto be admitted to probate
Criminal law -- Aggravated stalking -- Battery -- Where prior inconsistent statements of victim and her son were the only substantive evidence of guilt, convictions cannot be sustained
Criminal law -- Habeas Corpus -- Bond -- Writ of habeas corpus granted where trial judge failed to state with specificity facts on which she revoked defendant's bond and her reasons therefor -- While defendant's failure to appear for status conference and arrest on new charges similar
to that for which he was on release may have supported revocation of bond and pretrial detention, trial court was obligated to recite facts on which revocation of bond and commitment were based, and to determine conditions of release, if any -- State failed to meet burden of adducing
evidence showing beyond a reasonable doubt that pretrial detention was necessary because no conditions can be crafted to satisfy public interest
Mandamus -- Trial court directed to order Department of Corrections to vacate and expunge disciplinary report and restore gain time or conduct another evidentiary hearing where department failed to produce cassette tape containing verbal order prisoner was accused of violating --
Record devoid of evidence on which department could rely to support its determination that prisoner was ordered not to do that which he was accused of doing -- If another hearing is held, department must either produce tape or show good and valid cause for failure to do
so
Criminal law -- Sentencing -- Guidelines -- Departure -- Youthful offender -- Trial court erred in sentencing defendant to upward departure from sentencing guidelines, where recommended guidelines sentence was less than maximum youthful offender sentence, and trial court gave
no valid reason for upward departure -- Where guidelines sentence is less than maximum youthful offender sentence, trial court must sentence within guidelines, or give valid reason for upward departure -- Youthful offender sentence not valid reason for upward departure -- Where
trial court was under erroneous impression that sentencing guidelines had no bearing on youthful offender sentence, and thus was unaware it was imposing departure sentence, trial court may resentence defendant within sentencing guidelines or provide valid written reason for departure
-- Notation on guidelines scoresheet that youthful offender was a mitigating circumstance considered a clerical error where trial court orally pronounced that defendant could be sentenced to more time if he was sentenced as a youthful offender ``because the guidelines don't
apply''
Contempt -- Order -- Specification of conduct constituting contempt -- Temporary injunction fails to identify the clinical study and its supporting documentation with adequate specificity to support contempt order
Criminal law -- Sentencing -- Correction -- Illegal sentence -- Probation revocation -- Credit for time served -- Case remanded for trial court to review the record to determine whether defendant had already served the statutory maximum time on probation when the affidavit of violation
of probation was filed against him, and if it does, then to vacate the prison sentence and discharge defendant -- Where probationer, due to failure to credit him with prior probation served, is sentenced to probationary term that exceeds statutory maximum and is serving the illegal portion
of that term when an affidavit of violation is filed, affidavit should be dismissed because trial court's jurisdiction over the probation expired when maximum probationary term had been served
Contracts -- Construction -- Arbitration -- Where contract provided for arbitration of disputes arising under or related to the parties' agreement or to the property, which included land and improvements, trial court erred in refusing to require arbitration of claims relating to placement
and function of air conditioning system which allegedly picked up carbon monoxide emissions from car left running in garage and sent them through house, thereby killing husband |