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11th Circuit
EVIDENCE, MIRANDA, HABEAS
Mansfield v. Department of Corrections, May-09-2012
In a capital case, the lower court ruled that the admission of a videotape of a custodial interrogation by law enforcement officers, when defendant never received Miranda warnings, resulted in prejudicial constitutional error. J. Marcus holds that the admission of the interrogation amounted to harmless error under the "actual prejudice" standard for collateral review, since other properly admitted evidence against defendant was substantial and far more probative than the erroneously admitted interrogation. Reversed.
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2nd Circuit
EMPLOYMENT
Townsend v. Benjamin Enterprises, May-09-2012
J. Koeltl holds that plaintiff Grey-Allen, a human resources manager, failed to raise sufficient issues to support her retaliation claim. Plaintiff Grey-Allen's "participation in an internal employer investigation into [plaintiff] Townsend's sexual harassment allegations, an investigation that was not connected to any formal charge with the EEOC, did not qualify as protected activity under the participation clause of Title VII's anti-retaliation provision." Affirmed.
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3rd Circuit
HABEAS, CRIMINAL PROCEDURE
Simon v. Government of the Virgin Islands, May-09-2012
J. Roth finds that the Appellate Division of the District Court of the Virgin Islands improperly denied defendant post-conviction relief from his convictions of murder, robbery, and burglary. There were nonfrivolous issues that the Appellate Division should have reviewed on the merits.
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4th Circuit
SENTENCING, CRIMINAL PROCEDURE
US v. Davis, May-09-2012
J. Agee finds that factors other than defendant's substantial assistance were properly considered when determining the extent of the Federal Rule of Criminal Procedure 35(b) reduction to the sentence imposed upon defendant's sentence for robbing a store involved in interstate commerce at gunpoint and using and carrying a firearm during a crime of violence. Defendant received the reduction for supplying the police with substantial information that assisted in multiple investigations and convictions. If substantial assistance was all that could be considered, the court's ability to use its discretion in balancing the sentence factors would be voided. The sentencing judge, for example, could be presented with a Rule 35(b) motion based on the significant cooperation of a mass murderer or, like defendant, a repeat offender with a violent history. A court would not be permitted to select a sentence based on the continuing danger the defendant poses to society, the heinous nature of his crimes, or other factors relevant to determining an appropriate sentence. Affirmed.
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4th Circuit
SENTENCING, PLEA, CRIMINAL PROCEDURE
US v. Davis, May-09-2012
J. Davis finds that the judgment entered upon defendant's guilty plea to possession of ammunition by a felon should be vacated. Defendant had entered a "no-contest" plea to a robbery in a prior, related prosecution in state court, and the pre-sentence investigation report prepared in the instant case determined that a cross-reference to the robbery advisory sentencing guideline was appropriate. Defendant was sentenced to 106 months' imprisonment. Although the Government may have presented sufficient evidence to support the cross-reference to the robbery guideline, the district court failed to resolve critical disputed issues of fact necessary to its application of the Advisory Sentencing Guidelines. The Government has not contended that the sentencing guidelines were correctly applied and that the sentence is reasonable based simply on the state court conviction resting on a "no contest" plea. To the contrary, the Government relied primarily on the fact that the district court adopted the pre-sentence investigation report. But some of the conflicting evidence which requires resolution was contained in that report. Vacated.
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6th Circuit
CLASS ACTIONS
In re Mortgage Electronic Registration Systems v. , May-09-2012
J. Martin finds that the district court properly remanded the underlying action to the Kentucky state court from which it was removed. Mortgage Electronic, as a third-party defendant, cannot seek removal of a state court action under the Class Action Fairness Act. Affirmed.
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6th Circuit
TRADEMARK
Maker's Mark Distillery v. Diageo North America, May-09-2012
Maker's Mark Distillery instituted this suit against Jose Cuervo International, among others, claiming state and federal trademark infringement and federal trademark dilution in connection with the dripping red wax seal on Maker's Mark's bourbon bottles. J. Martin finds that the district court properly ruled in favor of Maker's Mark because there is a likelihood of confusion between the products. Affirmed.
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7th Circuit
CIVIL RIGHTS, TAX
Santana v. Cook County Board of Review, May-09-2012
J. Tinder finds that Santana, a self-described tax consultant who worked for the Cook County Board of Review for ten years, failed to show that elected and appointed Board employees violated his federally protected rights by "red flagging" his clients' files and by running the Board as a "pay for play" racketeering enterprise that sought to extort campaign donations and consulting work from him.
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7th Circuit
LABOR, ARBITRATION
Exelon Generation Company v. Local 15, International Brotherhood of Electrical Workers, May-09-2012
[Amended opinion.] J. Hamilton finds that a comprehensive post-9/11 overhaul of nuclear power plant security requirements did not change the general rule that labor arbitrators that decide grievances under collective bargaining agreements can review unescorted access denial decisions and order unescorted access as a remedy for a wrongful denial.
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7th Circuit
TAX
Kim v. Commissioner of Internal Revenue, May-09-2012
J. Easterbrook finds that attorney Kim withdrew money early from an individual retirement plan, rather than from his former firm's plan that had been rolled into the IRA, and therefore must pay an 10% additional tax. The law firm's pension plan put Kim to a choice between taking his pension money and moving part or all of it to an IRA when he retired. He chose to roll over the whole balance, because he did not want to pay any income tax immediately. The Code allowed Kim to extend the tax deferral at the cost of the 10% additional tax if he later took some of the money before the age of retirement.
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9th Circuit
EMPLOYMENT
Wood v. City of San Diego, May-09-2012
J. Fletcher finds that the lower court properly dismissed Wood's disparate treatment and disparate impact claims that the surviving spouse benefit provided by the City of San Diego to its retired employees discriminates on the basis of sex.
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Arkansas Court Of Appeals
CIVIL PROCEDURE, PROPERTY
State Highway Commission v. Thomas Ewell Burrow Family Trust, May-09-2012
J. Pittman finds that the State Highway Commission's appeal should be dismissed as brought from an order compensating a landowner in the amount of $403,924 for land taken by eminent domain. The Commission argues that it did not know that the March 21, 2011, judgment had been entered and that it therefore should be bound only by the March 29, 2011, order. However, lawyers and litigants must exercise reasonable diligence in keeping up with the progress of a case. Here, the judgment was entered when it was received by the clerk via facsimile and stamped on March 21. No timely notice of appeal was filed from that judgment, and thus the court of appeals lacks jurisdiction over the merits of this appeal.
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Arkansas Court Of Appeals
PROBATION, RESTITUTION, DRUG OFFENDER
Arter v. State, May-09-2012
J. Gladwin finds that the suspended sentence imposed upon defendant's felony possession of marijuana charge was properly revoked based on defendant's failure to pay restitution. Defendant contends that the trial court did not have jurisdiction to revoke since restitution was ordered only to the misdemeanor conviction of criminal mischief. However, the trial court was entitled to sentence defendant to six years' imprisonment since the restitution was based on damage defendant caused during the same criminal episode involving his felony-possession charge. The suspended sentence was improperly revoked on the misdemeanor-fleeing charge, however. Defendant's fleeing conviction resulted in a 30-day, county-jail confinement with no suspended sentence. Thus, the trial court could not revoke a suspended sentence that had never been imposed. Affirmed in part.
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Arkansas Court Of Appeals
FAMILY LAW
Baldwin v. Baldwin, May-09-2012
J. Glover finds that a husband was properly ordered to provide his wife, who he had married in 1979, with her current health insurance, at his expense, for three years following the 2011 divorce decree, and to pay one-half of her non-covered and deductible medical expenses for that same period of time. The wife's need for health insurance is obvious, and her inability to obtain her own insurance at this time is understandable. Even though her income exceeds her husband's income, her current financial situation has her expenses and debts exceeding her income by approximately $375 a month, while the husband's income exceeds his expenses and debts by over $800 every month. It was undisputed that the husband was paying $79 per month for the wife's health insurance, and he presented no evidence concerning whether that amount would increase, post-divorce. Affirmed.
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Arkansas Court Of Appeals
CRIMINAL PROCEDURE, SEX OFFENDER
Brown v. Department of Correction, May-09-2012
J. Robbins finds that an administrative finding made by default against defendant was improperly entered. When defendant did not appear at a sex-offender assessment, the Sex Offender Screening and Risk Assessment committee assigned a default "Level 3" community notification level to defendant. However, the decision did not contain sufficient findings of fact or conclusions of law for review. The agency's decision merely states defendant's complaint about there being a slight mistake in the address on the form he signed in 2008, but the decision does not make any findings as to the responsible party for the error or the legal consequence of any such error. Reversed.
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Arkansas Court Of Appeals
MEDICAID
Cass v. Department of Human Services, May-09-2012
J. Vaught finds that plaintiff was properly denied Medicaid benefits on the ground that he failed to prove he was disabled. Plaintiff contends on appeal that the Department of Human Services failed to follow the Social Security Administration's step-by-step procedure for determining Medicaid disability and that the Department did not afford him a fair hearing when it arbitrarily denied his disability application. However, plaintiff did not argue either of these points to the Department review officer, and thus they are not preserved for appeal. Plaintiff contends that testimony from him and his wife and the medical records demonstrated that he suffers from a combination of medical conditions that cause him to be disabled and unable to work. However, substantial evidence supports the Department's decision. A doctor who treated plaintiff for chronic-pain and chronic-fatigue syndromes stated that plaintiff's current medical regimen was working well, that he was having no side effects or sedation, and that he was having relief of his pain. Affirmed.
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Arkansas Court Of Appeals
PROPERTY, EXPERTS, ENERGY
Centerpoint Energy Gas Transmission v. Green, May-09-2012
J. Pittman finds that plaintiff was properly awarded $63,100 as just compensation for a taking by defendant, CenterPoint Energy Gas Transmission Company. The lower court's remark regarding plaintiff's lost opportunity to put up a building indicates that the court was simply trying to understand plaintiff's testimony as plaintiff pointed out the affected area on a diagram, and evidenced no intention to award plaintiff compensation on the basis of his alleged lost building opportunity. Defendant argues that plaintiff's appraiser was not tendered as an expert. However, the appraiser testified about his qualifications at length and undoubtedly possessed specialized knowledge. Defendant claimed that the testimony of plaintiff's appraiser was incompetent on the ground that his report misstated the acreage of the property and relied on comparable sales that bore no resemblance to plaintiff's tract. However, the court used the recent sales price of the property and the amount assessed by defendant's appraiser as the before-and-after values of the property, without reliance on the allegedly erroneous figures of plaintiff's appraiser. Affirmed.
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Arkansas Court Of Appeals
ROBBERY, THEFT, JUVENILE LAW
D.D.R. v. State, May-09-2012
J. Robbins finds that the trial court properly refused to transfer to the juvenile court defendant's trial for aggravated robbery, theft of property, theft by receiving, and assault. Defendant, who was 15 when he committed the crimes, points to the testimony of three of his teachers, who all agreed that he is a good, respectful student with academic potential, if placed in the proper environment. However, the evidence demonstrated that defendant had been offered the services of the juvenile system as a result of his commission of previous offenses, but, rather than comply with the court's rules, persisted in delinquent behavior. The present allegations involve serious, violent, and premeditated conduct raising legitimate concerns relating to the protection of society. Affirmed.
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Arkansas Court Of Appeals
CIVIL PROCEDURE, DAMAGES, CONSTRUCTION
Delancey v. Qualls, May-09-2012
J. Gladwin finds that plaintiff's appeal should be dismissed, without prejudice, as brought from the trial court's alleged failure to consider the measure of plaintiff's damages. This claim alleged that defendants did not perform a total remodel of plaintiff's residence in a workmanlike manner based on allegations that a Jacuzzi tub had been installed backwards and that spiders and spider webs were painted over in certain spots. Plaintiffs also claimed that some of the doors had been installed incorrectly or crooked and that trim did not fit, among many other defects. But an appellate court's jurisdiction is not invoked until a final order has been entered. As a general rule, a judgment is not final if the issue of damages remains to be decided.
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Arkansas Court Of Appeals
FAMILY LAW, CIVIL PROCEDURE
Goslee v. Goslee, May-09-2012
J. Wynne finds that a wife was properly denied half of the husband's monthly military-disability payments as part of the parties' property-settlement agreement in this divorce action. The wife's sole point on appeal is that the husband's monthly disability payment is marital property subject to division upon divorce, but she does not address the finding that the disability payment was not a "pension" as contemplated by the settlement. When the circuit court bases its decision on two independent grounds and an appellant challenges only one on appeal, the decision will be upheld without addressing the merits of either. Affirmed.
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Arkansas Court Of Appeals
FIREARMS
Hancock v. State, May-09-2012
J. Brown finds that defendant was properly convicted of possession of a firearm by certain persons after two firearms were spotted in plain view when a truck in which defendant was a passenger was pulled over by police on the ground that the driver was not wearing a seatbelt. Defendant contended there was not enough evidence that he possessed the firearm, but the firearm was located in plain view next to defendant's leg. Defendant was dressed in hunter's orange and admitted to hunting squirrels, and defendant did not deny having the firearm when questioned. Affirmed.
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Arkansas Court Of Appeals
SEX OFFENDER, EVIDENCE, SENTENCING
Howerton v. State, May-09-2012
J. Wynne finds that the transcript of defendant's online conversations with "Chloe," an undercover officer pretending to be a 14-year-old female, was properly introduced in defendant's computer child pornography and internet stalking of a child trial. The transcript was not merely cumulative, as the transcript revealed that defendant stated to "Chloe" several times that, since she was a young female, her sexual organs had attributes he would find pleasing if they had sex, and that her young age made him desire sex with her more. The transcript also belied defendant's claim that the chats were not evidence of a real relationship in his mind, given that he told "Chloe" he loved her, that he had wanted to have sex with a young girl for a long time, indicated that he was trying to arrange to see her, and told her that he exposed himself to some girls around her age. This information was not in the statement of facts. However, defendant was improperly required to complete a Reduction of Sexual Victimization Program during his incarceration. While a trial court may impose conditions on a suspended imposition of sentence or a term of probation, a trial court does not have jurisdiction to impose conditions on a sentence of incarceration. Affirmed as modified.
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Arkansas Court Of Appeals
PROBATION, ATTORNEYS
Kimmel v. State, May-09-2012
J. Martin finds that probation imposed upon defendant's guilty plea conviction for attempted manufacture of a controlled substance, possession of a controlled substance, and possession of drug paraphernalia was properly revoked after defendant failed to appear for an August 2009 hearing regarding claims that he had not reported to his probation officer. This led to a bench warrant being issued for his arrest. At a 2010 hearing on his sentencing, defendant acknowledged his previous admission to violating his probation and again admitted that he had done so. Counsel should be relieved from representing defendant, based on counsel's no-merit brief. Any argument that the ruling was erroneous would clearly be without merit, since defendant admitted that he violated the terms and conditions of his probation. Affirmed.
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California Courts Of Appeal
ENVIRONMENT
Neighbors for Smart Rail Expansion v. Exposition Metro Line Construction Authority, May-09-2012
[Amended opinion.] J. Grimes finds that the use of hypothetical future conditions as the baseline for analyzing the environmental impacts of a light rail project in Los Angeles does not violate the California Environmental Quality Act.
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Florida Courts Of Appeal
BANKING/LENDING, DUE PROCESS
Velasquez v. Ettenheim, May-09-2012
J. Salter finds that the surplus proceeds of the sale of appellant's home at a tax certificate auction were disbursed prematurely and upon insufficient notice. The clerk was required to retain the proceeds for 90 to 180 days to allow parties in interest to make their claims. Reversed.
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Florida Courts Of Appeal
BANKING/LENDING, DUE PROCESS
Horne v. Metropolitan Homes, May-09-2012
J. Salter finds that appellant was entitled to an evidentiary hearing regarding her claim to vacate a tax sale. The clerk's notice was insufficient because they were mailed to the wrong address. Appellant should also be allowed to present evidence that her failure to pay a 2005 property tax bill was an oversight. Reversed.
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Florida Courts Of Appeal
NEGLIGENCE, EVIDENCE
Suarez v. Benihana National of Florida, May-09-2012
J. Emas finds that appellants' inconsistent statements made during litigation of their negligence action against defendant for injuries sustained in an attack at a Benihana restaurant do not warrant dismissal. Although the lower court considered the inconsistencies as perjury, the record simply fails to demonstrate clearly and convincingly that appellants "collusively engaged in a scheme designed to prevent the trier from impartially adjudicating this matter through lies, misrepresentations, contradictory statements and otherwise hiding the truth." Reversed.
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Florida Courts Of Appeal
TRUSTS
Taplin v. Taplin, May-09-2012
J. Shepherd finds that plaintiffs' complaint for an accounting and removal of trustees is not subject to dismissal. Plaintiffs never received an accounting, despite appellees' argument to the contrary. Reversed.
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Florida Courts Of Appeal
ATTORNEY FEES
USAA Casualty Insurance Co. v. Prime Care Chiropractic Centers, P.A., May-09-2012
J. Crenshaw finds that the county court, which awarded attorney fees to a medical provider over a claim that the insurer ultimately paid in full, applied an unsupported contingency risk multiplier. The medical provider did not have any difficulty retaining counsel who would accept its case without the possibility of a multiplier, so a multiplier should not have been awarded, notwithstanding the testimony of an expert who said a multiplier was warranted. It is not necessary to reach the question, certified by the county court as one of great public importance, as to whether expert testimony alone could constitute sufficient proof to apply a contingency fee multiplier. Reversed.
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Florida Courts Of Appeal
FAMILY LAW
Johnson v. Johnson, May-09-2012
A military officer based in Italy, but who claimed Florida residence, had a custody dispute with a mother, who resides with their son in New York. J. Casanueva finds that the trial court violated the father's due process rights by conducting a telephonic hearing with two New Courts during which the three courts concurred that New York state courts had jurisdiction over all the proceedings. The father had timely requested to be present telephonically, but when he called in, he was not put through to the hearing. The trial court proceeded anyway, but since it heard only legal argument with no sworn testimony, the court had no facts upon which to base its conclusion regarding the proper forum. The trial court improperly dismissed his petition for dissolution without notice or an opportunity to be heard on the mother's motion to dismiss. Reversed.
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Florida Courts Of Appeal
INSURANCE
Redland Insurance Co. v. CEM Site Constructors, Inc., May-09-2012
J. Khouzam finds that the trial court erroneously awarded a construction company coverage under the commercial auto insurance policy issue by Redland Insurance for a fatal car accident. Issues remain as to whether the driver involved in the accident, who was not included on a list of drivers but was driving the company owner's personal vehicle on company business, was an employee. Issues remain as to whether the list should include only those employees who regularly drove for the company, or anyone who could conceivably be expected to drive for the company at any time. Reversed.
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Florida Courts Of Appeal
FAMILY LAW
Mayo v. Mayo, May-09-2012
J. Davis finds that the lower court failed to address the best interests of the child with respect to formally modifying a time-sharing schedule based on the significantly different time-sharing schedule the parties' have followed since their divorce nearly a decade earlier. Reversed.
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Florida Courts Of Appeal
BANKING/LENDING, REAL ESTATE, ATTORNEY FEES
Wavra v. National Credit Union Administration Board, May-09-2012
J. Morris finds that the trial court properly entered 17 foreclosures in favor of the National Credit Union Administration Board. However, the lower court, which reserved ruling on attorney fees, erroneously awarded attorney fees to National Credit Union based upon the affidavits presented, without conducting a hearing. The homeowners did not waive their right to a hearing on attorney fees. Reversed in part.
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Florida Courts Of Appeal
FAMILY LAW, GUARDIANSHIP
In the Interest of Z.C.(1) and Z.C.(2), children v. , May-09-2012
J. Silberman finds that the trial court should have terminated parental rights and instead placed twins in a permanent guardianship even though only one of the twin infants showed signs of egregious abuse. There was a nexus between the abuse of the one child and the substantial risk of significant harm to the second child based on the egregious abuse, the second child's status as a twin, and the parents' evasiveness, indicating their greater concern for themselves than for the injured child. The lower court could not place the children into a permanent guardianship following an adjudicatory hearing, since a guardianship was not requested in the pleadings and the parties were not afforded proper notice or the opportunity to be heard on the issue of a disposition. Reversed.
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Florida Courts Of Appeal
PROBATION
Collins v. State, May-09-2012
J. Northcutt finds that the lower court revoked probation based in part on a violation that was not alleged. The lower court would have revoked probation based on the violation that was properly alleged and admitted by defendant, so there is no basis to overturn the revocation of his probation. However, the lower court should strike the reference to the condition in the order of revocation that was not alleged. Affirmed with instructions.
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Florida Courts Of Appeal
THEFT
Green v. State, May-09-2012
J. Northcutt finds that defendant's conviction for grand theft, for obtaining a mortgage loan in his mother's name based on a mortgage application that contained misrepresentations regarding her income and residency, was not supported by evidence that he knowingly obtained funds from the mortgage company with intent to appropriate the funds. The loan application contained misrepresentations, which could provide circumstantial evidence of his intent to steal, but the inference of intent was contradicted by the fact that defendant made every payment on the loan when it came due and repaid the mortgage in full. The challenge to his conviction on a second count of grand theft lacks merit. Reversed in part.
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Florida Courts Of Appeal
MEDICAL MALPRACTICE, DAMAGES, EXPERTS
Ramos v. Coombs, May-09-2012
Per curiam, the court of appeal finds that the trial court properly ordered a new medical malpractice trial for the elements of causation and damages. The trial court found that the only expert appellants offered on causation was not qualified to speak on that element, and even if qualified, her "limited credentials" were substantially outweighed by respondents' experts' "unquestionable expertise and experience" in the "hyper-technical area of medicine" at issue. The trial court demonstrated how the element of damages was intertwined with causation. Affirmed.
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Florida Courts Of Appeal
SENTENCING
Josephs v. State, May-09-2012
J. May finds that the trial court properly convicted defendant of home invasion robbery, but improperly sentenced him. At sentencing, the judge told defendant he "blatantly lied" at trial and committed fundamental error by relying on his untruthfulness. Reversed.
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Florida Courts Of Appeal
FAMILY LAW, ATTORNEY FEES
Randazzo v. Randazzo, May-09-2012
Per curiam, the court of appeal finds that the lower court properly ordered a former wife to reimburse the former husband for overpayment of child support and properly awarded the husband attorney fees. Affirmed.
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Florida Courts Of Appeal
FRAUD, EVIDENCE, CIVIL PROCEDURE
The Bank of Montreal v. The Estate of Antoine, May-09-2012
In a civil action that arose from embezzlement, J. Levine finds that the lower court improperly denied the admission of a partial deposition that was not completed because the deponent died, and also failed to admit the guilty plea in the criminal embezzlement case. Reversed in part.
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Florida Courts Of Appeal
DRUG OFFENDER, PROBATION
Thompson v. State, May-09-2012
Per curiam, the court of appeal finds that the lower court properly convicted defendant of a drug offense, but corrects the probation order for one of the counts. Affirmed.
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Florida Courts Of Appeal
DRUG OFFENDER, CRIMINAL PROCEDURE
Fox v. State, May-09-2012
Per curiam, the court of appeal affirms defendant's conviction for cultivating marijuana, but corrects a scrivener's error.
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Florida Courts Of Appeal
SEX OFFENDER, EVIDENCE
Tomas v. State, May-09-2012
J. Damoorgian finds that defendant was properly convicted of sexual battery and lewd molestation on a child. Defendant did not object to his translator at trial, and any error was invited. The court properly refused to introduce evidence that the victim had lied in the past in order to "get out of trouble," as the relevant statute authorizes impeachment with only prior convictions. Affirmed.
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Florida Courts Of Appeal
WILLS / PROBATE, FAMILY LAW
Topol v. Polokoff, May-09-2012
In a dispute over entitlement to an IRA account where a former husband died during divorce proceedings, J. Taylor finds that the lower court properly found for the husband's daughters. The court determined that the interlocutory orders which compelled the husband to change his IRA account beneficiary designation did not survive abatement of the divorce proceedings upon his death. Affirmed.
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Florida Courts Of Appeal
FAMILY LAW, CIVIL PROCEDURE
Elbaum v. Elbaum, May-09-2012
In a divorce action, J. Stevenson finds that the lower court improperly required the former husband to obtain life insurance to secure the alimony award. The court did not make any factual findings in that part of the judgment. Reversed in part.
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Florida Courts Of Appeal
SEX OFFENDER, SENTENCING
Colletta v. State, May-09-2012
In a child pornography possession trial, J. Hazouri finds that the lower court was mistaken in its belief that it did not have discretion to impose a downward departure sentence on defendant based on his mental health disorder. On remand, the state should present evidence if the Corrections Department can provide the required "specialized treatment" for defendant. Reversed.
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Florida Courts Of Appeal
IDENTIFICATION, PROSECUTORIAL MISCONDUCT, WITNESS
Pierre v. State, May-09-2012
J. Stevenson finds there was no evidence that an assault victim had recanted his identification of defendant because he was afraid, or that he had been threatened. During closing arguments, the prosecutor improperly stated that the victim had recanted because he was "scared." There was scant physical evidence and only one eyewitness. Reversed.
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Florida Courts Of Appeal
CRIMINAL PROCEDURE, INEFFECTIVE ASSISTANCE, PLEA
Armstrong v. State, May-09-2012
Per curiam, the court of appeal finds that the lower court properly denied defendant's postconviction relief motion. Defendant contends that his ability to file a timely motion to withdraw his plea was frustrated by ineffective assistance on the plea. But defendant filed two sets of timely postconviction motions that were dismissed for procedural deficiencies without prejudice to refile. Defendant failed to file a proper motion within the two-year limit. Affirmed.
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Florida Courts Of Appeal
EMPLOYMENT, TORT
Watterson v. Smallwoods, May-09-2012
Per curiam, the court of appeal finds that plaintiff's former employer was properly granted judgment in a sexual harrassment case. "Pleadings of unwelcome conduct including touching in a sexual manner do not state a cause of action for the Florida common law tort claim of invasion of privacy." Affirmed.
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Florida Courts Of Appeal
BANKING/LENDING
Becker v. Deutsche Bank National Trust Company, May-09-2012
Per curiam, the court of appeal finds thatthe lower court properly found for Deutsche Bank in a mortgage foreclosure action. The complaint was properly verified, and there were no genuine fact issues precluding summary judgment. Affirmed.
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