By Amy Dilday
In June, the supreme court clarified the standard of review to be used on appellate review of a trial court’s order on a motion to suppress a witness’s out-of-court identification of a crime suspect. See Alahad v. State, No. SC2021-1450 (Fla. June 1, 2023). It also settled a “recurring issue of law” regarding Florida’s offer-of-judgment statute. See Coates v. R.J. Reynolds Tobacco Co., No. SC2021-0175 (Fla. June 15, 2023). If you were waiting for the outcome of Warren v. DeSantis, No. SC2023-0247 (Fla. June 22, 2023), the supreme court denied a former State Attorney’s petition for review of the Governor’s decision suspending him. The court also settled a certified conflict between the First and Fourth District Courts of Appeal on whether a plaintiff may seek damages from a decedent’s insurer after the statute of repose for filing a claim against the decedent or his estate expired. See Tsuji v. Fleet, No. SC2021-1255 (Fla. June 29, 2023).
Civil:
Coates v. R.J. Reynolds Tobacco Co., No. SC2021-0175 (Fla. June 15, 2023). The supreme court settled “a recurring issue of law” in this opinion, concluding that Florida’s offer-of-judgment statute “is not a prevailing-party statute.” Slip op. at 1. The question arose in the context of a certiorari proceeding involving a question on punitive damages. In that proceeding, the petitioner sought attorneys’ fees based on the proposals for settlement she had served in the trial court. The tobacco company opposed the motion for fees because the petitioner had not prevailed in the proceeding. The court rejected the company’s contention that the petitioner must prevail to be entitled to fees. Relying on the controlling statute’s plain text, the court noted that section 768.79, Florida Statutes, refers to the fees awards it authorizes as “penalties.” Further, the text “contemplates a situation where the defendant is entitled to fees even if the plaintiff prevails.” Finally, section 768.79 does not contain the language found in other prevailing party statutes. Accordingly, the court provisionally granted the petitioner’s motion for fees conditioned on the trial court’s determination of entitlement and amount.
Warren v. DeSantis, No. SC2023-0247 (Fla. June 22, 2023). The supreme court denied the former State Attorney’s petition for quo warranto review of the Governor’s executive order suspending him for “neglect of duty” and “incompetence.” Florida’s constitution allows for suspension by executive order to be reviewed by the Florida Senate. “Yet Petitioner, who was ready to challenge the facial sufficiency of the suspension order within two weeks of his suspension, then waited almost five more months before bringing that claim in state court, all but ensuring that the 2023 regular session of the Florida Senate would come and go without any opportunity for that legislative body to potentially review the suspension.” Slip op. at 14. Ultimately, the supreme court denied the petition for unreasonable delay.
In her concurrence, Justice Francis discussed the political question doctrine in the context of state court review of executive suspension orders.
Justice Labarga dissented, disagreeing that the petition should be denied for unreasonable delay. Justice Labarga reasoned that the former state attorney’s four-year term had sufficient “time remaining on the clock” to ensure that the petition was not untimely.
Tsuji v. Fleet, No. SC2021-1255 (Fla. June 29, 2023). In this negligence case arising from an automobile accident, the supreme court held that, although the plaintiffs’ claims were timely filed under the statute of limitations governing negligence generally, they were barred under the probate statutes when the tortfeasor died within a month of the accident and the plaintiffs waited to file their claim more than three years after the tortfeasor’s death. Relying on section 733.710(1), Florida Statutes, which it characterized as a “statute of repose,” the court concluded that the two-year time limit the statute imposed barred the plaintiffs’ claims. It settled a conflict between the opinion of the First District, which gave rise to this case, and a conflicting opinion from the Fourth District, Pezzi v. Brown, 697 So. 2d 883 (Fla. 4th DCA 1997), and agreed with the First District. The supreme court held that the plaintiffs’ claims were barred, even though they were seeking money damages only from the decedent’s insurer rather than from the decedent, his personal representative, or his estate. Because the claim against the decedent was barred, the court confirmed that his employer could not be held vicariously liable for his alleged negligence either.
To reach these conclusions in this lengthy opinion, the supreme court navigated the waters of whether the word “liable” could be construed to refer only to the obligation to “pay money,” rather than to a condition of having “breached a duty” in the context of the probate statutes at issue. The court also rejected the use of the “cannon against surplusage” in this context, noting that its “‘obligation is to the text and not the cannons per se.’” Slip op. at 21 (quoting Heyman v. Cooper, 31 F.4th 1315 (11th Cir. 2022)). Finally, the court rejected the plaintiffs’ claims that it could infer the Legislature’s acceptance of the holding in Pezzi (which would permit them to seek damages from the decedent’s insurer), because the Legislature did not act when that opinion was published.
Criminal:
Alahad v. State, No. SC2021-1450 (Fla. June 1, 2023). This case is not only a primer on the standard for determining whether an out-of-court identification of a suspect should be suppressed as unnecessarily suggestive, but it also discusses the various appellate standards of review for mixed questions of law and fact. On review of a decision from the Fourth District, the court settles a conflict between the Fourth District decision and a Third Districtopinion, as well as clarifies its own prior inconsistent decisions, on the applicable standard. The court noted that it has applied both an abuse of discretion standard of review and a mixed standard of review to the suppression issue in prior decisions. A trial court’s decision to suppress an out-of-court identification is a mixed question of law and fact. Often, but not always, appellate review of mixed questions of law and fact is a mixed standard of review. Sometimes, however, the appellate standard is abuse of discretion. The supreme court recognized that the federal courts are also divided on the standard for reviewing a trial court’s decision on the admissibility of an out-of-court identification. It noted, however, that the question is “chiefly about reliability” and “analytically similar to the balancing test for ruling on the admissibility of evidence under section 90.403.” Therefore, the court determined that, like review of section 90.403 questions, the “mixed question presented by a trial court’s ruling on a motion to suppress an out-of-court identification is properly subject to the abuse of discretion standard.” For this reason, it approved the 4th District opinion on review and disapproved the conflict decision.
Owen v. State, No. SC2023-0732 (Fla. June 5, 2023). In this appeal by a prisoner sentenced to death whose execution date was set for June 15, 2023, the supreme court affirmed the summary denial of his fourth successive postconviction motion, holding that the record conclusively showed he was entitled to no relief. The court noted that the execution had been temporarily stayed to complete an inquiry into the prisoner’s mental capacity to be executed.
Owen v. State, No. SC2023-0819 (Fla. June 9, 2023). This opinion follows the June 5 opinion dealing with the prisoner’s death sentence. The supreme court affirmed the circuit court order finding the prisoner sane to be executed. In an evidentiary hearing, the circuit court considered the testimony of the three psychiatrists appointed by the governor to examine the prisoner’s sanity, four correctional officers, two of the prisoner’s mental health experts, three of his attorneys, and the affidavits of two additional mental health experts submitted by the prisoner. The supreme court concluded that competent substantial evidence supported the circuit court’s determination. It noted that the standard for sanity was “whether a person has the ‘rational understanding’ of why the State seeks to execute him, ‘not whether he has any particular memory or any particular mental illness.’” Slip op. at 4–5.
Figueroa-Sanabria v. State, No. SC2021-1070 (Fla. June 29, 2023). This appeal was from a conviction on two counts of first-degree murder with death sentences for each. The supreme court affirmed the convictions (despite the defendant’s rocky relationship with his court-appointed counsel throughout the case), but set aside the death sentences, concluding that the defendant was deprived of having assistance of counsel during the penalty-phase proceedings. Before the penalty phase, the defendant stated that he wanted no mitigation evidence presented. The court informed him that if the appointed counsel were to continue representing him, the court would require counsel to present mitigation evidence. Therefore, if he wished to decline his right to present mitigation evidence, he would have to represent himself. The defendant chose to represent himself, and after a Faretta hearing, confirmed his choice. In reversing the sentences, the supreme court held that the deprivation of counsel during the penalty phase was a fundamental error and that the defendant was entitled to a new penalty phase. It reasoned that the court’s requirement that defendant choose between having the assistance of counsel and waiving the right to put on mitigation evidence violated his constitutional right to representation. Even with counsel’s assistance, the defendant still had the right to “set the parameters of that representation.” Slip op. at 38–43. Faced with a choice he should not have had to make, the defendant’s choice to proceed pro se was not knowing and voluntary and deprived him of counsel for most of the penalty phase.
Rules Amendments:
In re: Amendments to R. Regulating Fla. Bar – Bylaws 2-3.6 and 2-4.6, SC2023-0007 (Fla. June 1, 2023). In this opinion, the court amended Bylaws 2-3.6 and 2-4.6 to include new, titled subdivisions. It also included language to account for electronic voting during elections and to shorten the deadline for members to submit ballots. The court also included “secret ballot” language, including adding the word “secret” to the titles. The amendments are effective immediately.
In re: Amendments to R. Regulating Fla. Bar – Subchapter 4-7 Information About Legal Services, SC2022-1294 (Fla. June 22, 2023). In this opinion, the court approves the Florida Bar’s recommended changes to rules regulating attorney advertising. The court amended advertising language required by Rules 4-7.12, 4-7.13, 4-7.14, and 4-7.18. The amendment provides more discretion to lawyers to decide the language of the various “clear and conspicuous” disclaimers that are required on advertisements. It eliminated unnecessary language regarding certification in solicitation letters that could be received by persons who had already hired an attorney. Finally, Rule 4-7.22(d)(12) was added to prohibit lawyers from participating in qualifying providers that have fewer than four participating lawyers from different law firms. The amendments will be effective August 21, 2023.
In re: Amendments to Fla. R. Crim. P. 3.992, SC2023-0249 (Fla. June 29, 2023). The court amended the Criminal Punishment Code Scoresheet to include a space for the trial court to check before “Other Reason” (also amended to be plural) in the sections for “Total Sentence Imposed” and for “Reasons for Departure.” The amendments will be effective October 1, 2023.
About the Author: Florida Bar Board Certified in appellate practice, Amy is a member of Englander Fisher’s litigation team in St. Petersburg.
