October Updates

Feller v. DHSMV, 17 Fla. L. Weekly Supp. 863b (4th Jud. Cir., Apr. 28, 2010)Writ of Certiorari Granted: This circuit appellate panel wrote a confusing mandate.  The first half has nothing to do with the decision (it is an issue raised that the appellate court upheld). Instead, it delves into the issues on how to pull someone over without complying with the decision in Crooks(v. State, 710 So.2d 1041 (Fla. 2d DCA 1998)).  The real issue is that the hearing officer refused to issue subpoenas to Matthew Malhiot and Robert Thomason, both are witnesses to the certification and inspection of the breathylizer in question.  The hearing officer refused and the writ was granted quashing the the final order upholding the suspension and remanding it back to the Department to correct their error (new hearing) – which means, of course, that the cost of the error will be born by the defendant.  Hint: If the courts want to change DHSMV behavior they have to quit enabling it.

Edenfield v. DHSMV, 17 Fla. L. Weekly Supp. 867 (4th Jud. Cir., Aug. 13, 2010) – Writ of Certiorari Granted: Hearing officer allows Agency Inspector to appear by phone at the Formal Review Hearing over objection.  This was improper and the writ is granted, temporary license issued, and (of course) DHSMV gets a second chance (new hearing).

Foster v. State, 17 Fla. L. Weekly Supp. 869 (6th Jud. Cir., Jul. 9, 2010)Appeal affirmed:  This is a good case for “challenging a denial of a potential juror for cause.”  This case listed the standard of review, preservation of error, and the burden of proof.  Excellent case for case law citations.

Stewart-Kruger v. State, 17 Fla. L. Weekly Supp. 943b (4th Jud. Cir., May 11, 2010) – Appeal Reversing Lower Court: Issue is the withdrawal of a defendant’s plea. Appellate court found that the recorded initial advice shown to all defendant’s at first appearance along with inadequate colloquy was grounds for withdrawal of plea.  Excellent case on issue of adequate plea colloquies – lot’s of case law.

Stahl v. DHSMV, 17 Fla. L. Weekly Supp. 944 (4th Jud. Cir., Apr. 6, 2009) – Writ of Certiorari Granted: Another case where the hearing officer refused to issue subpoenas for the the inspectors.  Suspension quashed and remanded to be reheard.

State v. Grismer, 17 Fla. L. Weekly Supp. 947b (6th Jud. Cir., Apr. 21, 2010) – Appeal by State, Suppression reversed: This is an excellent case for the requirements necessary for the police to stop a vehicle.  Many cites to legal definitions.  This appellate panel wrote a very informative opinion.

Wetherell v. State, 17 Fla. L. Weekly Supp. 950b (6th Jud. Cir., May 25, 2010) – Appeal from Judgment and Sentence, Reversed/Discharged: State provided discovery after speedy ran and notice was filed.  Defense asked for continuance to be charged to the state.  Court denied, charged continuance to defense and tolled recapture period.  Defense moved for dismissal after running of original recapture period.  Court denied motion, defendant entered plea and appealed.  Appellate court found that delay in providing discovery to be exception to waiver of speedy trial.  Cased remanded for discharge.

State v. Earle, 17 Fla. L. Weekly Supp. 953 (6th Jud. Cir., Apr 12, 2010) – State appealed Motion to Suppress, affirmed: Issue – Stop outside jurisdiction.  Not valid citizens arrest if officer stops defendant under color of office and conducts investigation.  Actions violated mutual aid agreement and officer failed to call law enforcement within jurisdiction.  Excellent case with plenty of citations.

Muller v. DHSMV, 17 Fla. L. Weekly Supp. 960 (9th Jud. Cir., Jul 8, 2010) – DUI Roadblock Case: Court affirmed the Department’s sustaining the suspension.  This case is a good resource for DUI Roadblock cases.  It has citations to main DUI Roadblock cases for the defense attorney and prosecutor alike.

Reiss v. DHSMV, 17 Fla. L. Weekly Supp. 961 (9th Jud. Cir., Apr 14, 2010) – Failure to Issue subpoenas for agency and department inspectors: Another case where the writ of certiorari was granted because of the hearing officer’s refusal to issue subpoenas for the agency and departmental inspectors of the breath test machine.  However, in this case the court quashed the suspension without returning it to the Department for further proceedings.  See also Re v. DHSMV, 17 Fla. L. Weekly Supp. 963 (9th Jud. Cir., Mar 17, 2010); Lane v. DHSMV, 17 Fla. L. Weekly Supp. 964 (9th Jud. Cir., Apr 1, 2010); Harrell v. DHSMV, 17 Fla. L. Weekly Supp. 965 (9th Jud. Cir., Mar 15, 2010).

Bolden v. State, 17 Fla. L. Weekly Supp. 993a (17th Jud. Cir., May 10, 2010) – Appeal, reversed and remanded for new trial: Issue, the court failed to instruct jury on permissible lesser included offense requested by the defendant.

State v. Albert, 17 Fla. L. Weekly Supp. 1002 (17th Jud. Cir., Jun 10, 2010) – Appeal by state, affirmed – Defendant was cited for DWLS.  The original suspension eminated from a DUI.  The suspension period had ended but the Defendant failed to reinstate his license.  Court finds that because time frame for suspension had ended the Defendant can not be found guilty of DWLS.  Court suggests that Defendant may be guilty of other offense such as “failure to reinstate his license, or driving without a valid license.”  Very unique case on subject.  Raises good arguments.

Katzman v. DHSMV, 17 Fla. L. Weekly Supp. 1006 (9th Jud. Cir., Jun 30, 2010) – Writ of Certiorari granted: Issue, lack of probable cause for stop.  Defendant stopped for speeding.  Hearing officer chose to rely solely on LEO’s Affidavit of Probable Cause.  Affidavit lacked sufficient specificity on the stop to establish probable cause.  The affidavit simply stated that the LEO stopped the driver for speeding.

State v. Gardella, 17 Fla. L. Weekly Supp. 1009 (17th Jud. Cir., May 19, 2010) – Appeal by state, affirmed: Issue, “plug pulls” during inspection of the Intoxilyzer 8000.  Opinion is vague on facts of hearing held on premise that FDLE Department Inspector would pull plug (or otherwise cut power) on Intoxilyzer before completion of inspection cycle and thus erase such data.  Probably need appellate briefs on this to be able to know/argue issue.  Interesting.

Rinaldi v. DHSMV, 17 Fla. L. Weekly Supp. (20th Jud. Cir., Aug 12, 2010) – Writ of Certiorari Denied: Issue, consideration of accident report privilege by hearing officer in Formal Review Hearing.  Section 322.2615(2), Fla. Stat., allows such use.

State v. Marseille, 17 Fla. L. Weekly Supp. 1015 (17th Jud. Cir., Apr 16, 2010) – Appeal by State, Affirmed: Issue, failure to comply with order to furnish Bill of Particulars.  Defense moved to dismiss and compel.  Court continued and state again failed to comply.  Defense moved to dismiss and court set hearing.  One day before hearing state furnished Bill of Particulars.  Court found Bill of Particulars untimely and insufficient – case dismissed.  Good firepower to back up those Bills of Particulars.

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