Wednesday, December 21, 2011

Opinions from the 3d DCA 12/21/11

In Garcia v. State, 75 So. 3d 871, 2011 Fla. App. LEXIS 20449 (Fla. 3d DCA 2011), the court denied rehearing, but on different grounds than previously, in Garcia v. State, 35 Fla. L. Weekly D 2328 (Fla. 3d DCA October 20, 2010).  The court now reversed because the trial court did not follow the third step as required by Melbourne v. State, 679 So. 2d 759 (Fla. 1996), and prevented the criminal defendant from exercising his peremptory challenge of a juror.  See


In State v. Estrada, 2011 Fla. App. LEXIS 20454; 36 Fla. L. Weekly D 2771 (Fla. 3d DCA 2011), the court reversed the trial court for granting a sworn motion to dismiss where the cannabis weighed 26 pounds at the time of arrest (trafficking quantity), but had lost two pounds (non-trafficking quantity) 17 months later when the defense expert weighed it.

In Novastar Mortg., Inc. v. Vargas, 76 So. 3d 369, 2011 Fla. App. LEXIS 20457 (Fla. 3d DCA 2011), the court reversed the trial judge for granting a motion under Rule 1.540(b) that was unsworn, citing Carnero v. National Home Mtg. Corp., 941 So. 2d 395 (Fla. 3d DCA 2006).
In Univ. of Miami v. Francois, 76 So. 3d 360, 2011 Fla. App. LEXIS 20459 (Fla. 3d DCA 2011), the court reversed, holding that a release of an initial tortfeasor barred plaintiff’s claim against a subsequent tortfeasor where the release did not specifically reserve the right to proceed against the subsequent tortfeasor.  See
In DTRS Intercontinental Miami, LLC v. A.K. Gift Shop, Inc., 77 So. 3d 785, 2011 Fla. App. LEXIS 20453 (Fla. 3d DCA 2011), the court reversed, strictly applying F.S. § 83.232, which entitles the landlord to immediate possession where the tenant fails to pay the rent into the court registry.  See
In Estela v. Cavalcanti, 76 So. 3d 1054, 2011 Fla. App. LEXIS 20460 (Fla. 3d DCA 2011), the court reversed the trial judge for allowing service by publication even though counsel for the defendant had provided plaintiff with an address in Costa Rica and the plaintiff never attempted to serve him there.  See

1 comment:

  1. Interesting read on the peremptory challenge case, Juan. I'm curious, does Florida always require an attorney to state a reason when exercising a peremptory challenge during jury selection or was that particular to that trial court and/or circumstances? I couldn't tell if there was an objection to the use of peremptory there, which caused the judge to require a reason on the record. Keep up the good work with the blog.

    Portland Oregon Attorney Roger Priest