Trial court committed reversible error in criminal case by reading testimony back to jury without giving defense counsel notice or opportunity to participate.  [Added 1/17/10]

    A convicted criminal Defendant filed a petition alleging ineffective assistance of appellate counsel.  The Second DCA granted the petition and, under the circumstances, decided to reverse Defendant's conviction and remand for a new trial.

    During its deliberations the jury asked to have testimony of an alibi witness read back.  The trial court complied.  Subsequently the court also complied with another jury request for a readback of the testimony for 2 state witnesses.  "Unfortunately, there is no indication in the trial transcript that defense counsel was notified, nor is there any indication that defense counsel or the prosecutor was present at either of the readbacks.  Furthermore, the transcript does not establish that the trial court at any time during the deliberations informed counsel that it had read back the testimony."  (Footnotes omitted.)

    Under Fla.R.Crim.P. 3.410, testimony may be read back "only after notice to the prosecuting attorney and to counsel for the defendant."  There was no indication that the trial court complied with this rule.  Additionally, "the [Florida] supreme court in Bradley [v. State, 513 So.2d 112 (Fla. 1987)], in response to the State's argument that defense counsel was in fact present during the trial court's consideration of the jury's question, held:  ''Notice is not dispositive.  The failure to respond in open court is alone sufficient to find error.''  Id. (quoting Curtis v. State, 480 So.2d 1277, 1278 n.2 (Fla. 1985)).  As the supreme court has concluded, '[w]ithout this participation process, it is impossible to determine whether prejudice has occurred during one of the most sensitive stages of the trial.'  Colbert v. State, 569 So.2d 433, 435 (Fla. 1990).  A rule 3.410 violation constitutes per se reversible error.  Bradley, 513 So. 2d at 112-13."  White v. State, __ So.3d ___ (Fla. 2d DCA, No. 2D09-1495, 1/8/2010).

Criminal conviction is reversed because trial judge departed from position of neutrality through comments to witness.  [Added 1/17/10]

    Witness was deposed in connection with a criminal matter.  At trial, the State called Witness to bolster its identification evidence.  Witness started to testify that she did not remember the details of what had happened.  At that point, the trial court sua sponte sent the jury out and asked some questions of the witness, pointing out that she had testified at the deposition.  Defense counsel objected.  Ultimately Witness testified in accordance with her deposition testimony. "[F]rom a strategic perspective" her testimony "benefited the prosecution."  The defendant was convicted and appealed.

    The Second DCA reversed, concluding that the trial judge had departed from a position of judicial neutrality.  "By intentionally ignoring the opportunities that would have operated to brake its inquiry, the trial court was able to 'make sure that this [was] the right witness that ha[d] given a deposition.'  However, that duty rested with respective trial counsel, not with the trial court.  The latter's force of inquiry was an improper entry into the fray."  The trial court's conduct was improper because it "suggested to the witness that her testimony should be identical to that of the pretrial deposition, in which she named [the defendant] as the offender."  Seago v. State, __ So.3d ___ (Fla. 2d DCA, No. 2D08-4623).

Trial judge abused her discretion by granting continuance in foreclosure case because she didn't want defendants to lose their house.  [Added 10/6/09]

    After a November 2008 final judgment of foreclosure that was followed by a number of delays and mistakes, the trial court set an August 27, 2009, date for the foreclosure sale.  Defendants moved for a continuance, and the trial court granted a continuance until October 1, 2009.  The court stated that she routinely granted continuances of the sale date "rather than see 'anybody lose their house.'"  The plaintiff bank petitioned the Third DCA for a writ of mandamus.

    The Third DCA treated the petition as a writ for certiorari, the court denied the petition -- but only because the sale date was only a few days away from the date of the court's opinion.  The court made it clear, however, that the trial court had abused its discretion "in the most basic sense of that term" by granting the continuance on "the 'ground' of benevolence and compassion (or the claim asserted below that the defendants might be able to arrange a sale of the property during the extended period until the sale)."

    The court ended its opinion by emphasizing that there would be no further postponements of the sale.  Republic Federal Bank, N.A. v. Doyle, __ So.3d ___ (Fla. 3d DCA, No. 3D09-2405, 10/30/2009).

Trial court erred in denying criminal defendant's motion for continuance in order to prepare for DNA expert witness.  [Added 8/18/09]

    Criminal Defendant was charged with capital sexual battery.  On the first day of trial, the State disclosed its expert for the second aspect of the DNA evidence.  ("The admission of DNA evidence has two aspects. It demands a scientific foundation of b o t h molecular-biochemical a n d statistical convention: first, a sample specimen related to a crime must be shown to match the DNA of an identified person (viz., defendant); second, expert statistical testimony must quantify and explain the odds of someone other than defendant having that same DNA."  (Footnote omitted.))  Defendant's counsel moved for a continuance, arguing that "she had never heard  of him before the disclosure, did not know he would be called as a State’s witness, and thus had no opportunity to take his deposition to prepare for trial.  Her testimony was not rebutted."  The trial court denied the motion.  Defendant went to trial and was convicted.  Defendant appealed.

    On appeal "[t]he issue is the denial of the continuance to afford a reasonable time for the defense to prepare for this crucial witness."  Noting that "[i]n the world of trial evidence, DNA may well be the whole meghilla" and that "[i]t is significant that this particular assistant public defender had never before faced a DNA statistical expert in a courtroom," the Fourth DCA reversed.  "Rushed hotel depositions in the nighttime by exhausted defense counsel cannot possibly balance the scales of preparation.  In our judgment, the circumstances required no further showing by defense counsel as to why she needed a continuance or what she might have accomplished thereby."  (Footnote omitted.)

    One judge dissented, asserting that Defendant had not been procedurally prejudiced by the denial of the motion for continuance.  Pickel v. State, __ So.3d ___, 34 Fla.L.Weekly D1640 (Fla. 4th DCA, No. 4D07-240, 8/12/2009), 2009 WL 2448407.

Judge may order DUI probationers to attend victim impact panel course presented by MADD, where course fee will help MADD fund local operations  [Added 2/21/09]

    Judge asked the Florida Supreme Court's Judicial Ethics Advisory Committee whether Judge ethically may require DUI probationers to attend a victim impact panel ("VIP") course presented by Mothers Against Drunk Driving ("MADD"), where the fee paid for the course would go directly to MADD and help fund its operations in the county.  The Committee answered in the affirmative.

    The Committee's opinion began by noting that "[t]he courts have ruled that special conditions of probation may be imposed on a criminal defendant where the conditions reasonably relate to the defendant's present criminal conduct or future criminality, or pertain to conduct which is itself criminal."  Regarding the ethical propriety of a judge ordering a probationer to attend the VIP course in question, the Committee was of the view that "that there is a significant distinction between ordering a defendant to 'complete a VIP course' and ordering a defendant to 'complete a VIP course presented by MADD.'  In the first instance, the court order reflects a judge's determination that the defendant's completion of the course, based on the contents of the course, would serve a valid sentencing purpose.  . . .  By contrast, a court order requiring a DUI probationer to complete a MADD-sponsored VIP course could well be perceived as lending the prestige of the judicial office to advance the interests of MADD."  The Committee concluded that the former approach was ethically permissible even if MADD "may be the only entity presenting a VIP course in a particular county."

    The Committee cautioned that "the sentencing judge must ensure that the program's costs are reasonable and that the primary purpose of the course is to serve legitimate sentencing goals.  Otherwise, the court's imposition of this special condition of probation might create the appearance that the judge is using the judicial office for the purpose of raising money for MADD" (in contravention of Canon 5C(3)(b)(iii) of the Florida Code of Judicial Conduct).

    One Committee member dissented.  Judicial Ethics Advisory Opinion 2009-02.

Trial court did not abuse its discretion in dismissing plaintiff's case due to fraud on court.  [Added 1/28/08]  --  Ramey v. Haverty Furniture Companies, Inc., 993 So.2d 1014 (Fla. 2d DCA 2008).

Ethically permissible for judge, at parties' request, to recommend mediator in adversarial probate proceeding.  [1/24/08]  --  Judicial Ethics Advisory Opinion 2008-1 (January 8, 2008).

Defendant's sentences reversed because they were imposed by judge other than judge who accepted plea, where it was not shown that substitution of judges was "necessary."  [Added 12/20/07]  --  Kramer v. State, 970 So.2d 468 (Fla. 2d DCA 2007).  See also Ingram v. State, 977 So.2d 605 (Fla. 4th DCA 2007) (error for successor judge to impose sentence absent necessity or emergency; "[m]ere convenience cannot justify sentencing by a substitute judge").

Criminal conviction reversed because trial court did not grant continuance after granting defendant's motion to discharge appointed counsel.  [Added 9/5/07]  --  Sessions v. State, 965 So.2d 194 (Fla. 4th DCA 2007).

court did not abuse discretion in dismissing action with prejudice based on determination that plaintiff repeatedly gave material false testimony.  [Added 8/24/07]  --  Jesse v. Commercial Diving Academy of Jacksonville, Inc., 963 So.2d 308 (Fla. 1st DCA 2007).

Criminal conviction reversed because trial judge dismissed juror who asked a lot of questions.  [Added 5/3/07]  --   Washington v. State, 955 So.2d 1165 (Fla. 1st DCA 2007).

Unethical for drug court judge to seek or accept from lawyers or law firms donations of "incentive gifts" to be given to defendants as rewards.  [Added 3/23/07]  --  Judicial Ethics Advisory Opinion 2007-05.

Court did not err in denying criminal defense lawyer's motions to withdraw.  Fondura v. State, 940 So.2d 489 (Fla. 3d DCA 2006).

Court erred in awarding F.S. 57.105 fees and sanctions against lawyer for conduct occurring before determinative legal issue had been decided in that District.  Global Heir and Asset Locators, Inc. v. First NLC Financial Services, LLC, 936 So.2d 1216 (Fla. 4th DCA 2006).  NOTE:  The court did not comment on any lawyer advertising questions that might relate to Asset Locator's relationship with and regular recommendation of Lawyer.  (See, e.g., Florida Ethics Opinion 97-3.) 

Judge may not accept litigants' offer to reimburse expenses incurred by judge in presiding over depositions in another country.  Judicial Ethics Advisory Opinion 2006-22.

Court abused discretion by limiting criminal defense counsel's closing argument to 20 minutes in sexual battery case.  Curry v. State, 930 So.2d 849 (Fla. 2d DCA 2006).

Court's failure to grant continuances earns reversal of judgments.  Second DCA.  M.F. v. State, 920 So.2d 1252 (Fla. 2d DCA 2006) (juvenile case); Fifth DCA.  Myers v. Siegel, 920 So.2d 1241 (Fla. 5th DCA 2006) (civil case).

Counsel's appearance in criminal trial takes precedence over civil case per rule;  court erred in proceeding with civil case in counsel's absence.  Garmon v. Garmon, 920 So.2d 209 (Fla. 4th DCA 2006).

Judge acted within discretion in denying continuance due to counsel's conduct, be erred in striking party's only 2 witnesses.  Taylor v. Mazda Motor of America, Inc., 934 So.2d 518 (Fla. 3d DCA 2005).

Judicial Ethics Advisory Committee opines on judge's ethical duties when lawyer, notary, and client are involved in possible perjury.  Judicial Ethics Advisory Committee Opinion 2005-16.

Not error for court to sign proposed judgment exactly as submitted 2 weeks prior, where both parties had chance to submit proposals.  DeMello v. Buckman, 914 So.2d 1090 (Fla. 4^th DCA 2005).  NOTE:  See also Bryan v. Bryan, 930 So.2d 693 (Fla.3d DCA 2006) (trial court's failure to make oral findings of fact or conclusions of law at final hearing, where both parties submitted proposed final judgments and had opportunity to respond; no appearance that trial court did not exercise its independent professional judgment).

Trial court's expression of frustration, rebuke of counsel, and comments on evidence warrant reversal in civil case.  Vaughn v. Progressive Casualty Ins. Co., 907 So.2d 1248 (Fla. 5th DCA 2005).

Judge's imposition of harsher sentence than offered in plea discussion does not, of itself, equate to "vindictiveness."  Jamerson v. State, 888 So.2d 49 (Fla. 5th DCA 2004).

Court must specifically find "willful noncompliance" with court order before dismissing complaint with prejudice as discovery sanction.  Kinney v. R.H. Halt Associates, Inc., 884 So.2d 400 (Fla. 2d DCA 2004).

Not permitting defendant to confer with counsel during short recess violated right to counsel under Florida Constitution, but was harmless error.  Leerdam v. State, 891 So.2d 1046 (Fla. 2d DCA 2004).

Judges did not abuse discretion by denying continuances in criminal trials.  Lawson v. State, 884 So.2d 540 (Fla. 4th DCA 2004); Savage v. State, 880 So.2d 809 (Fla. 5th DCA 2004).

Repeated interruptions by trial judge during cross-examination and closing argument warrant reversal of criminal conviction.  Barnes v. State, 875 So.2d 789 (Fla. 3d DCA 2004).

Trial court's adoption of party's proposed judgment verbatim without making required findings on remand requires reversal.  Walker v. Walker, 873 So.2d 565 (Fla. 2d DCA 2004).  NOTE:  See also Carlton v. Carlton, 888 So.2d 121 (Fla. 4th DCA 2004) (no indication that trial court considered issues prior to entering final judgment where judge signed verbatim version of order submitted by one party, and other party had no opportunity to object to proposed order prior to its verbatim adoption by court; "Perlow [v. Berg-Perlow, 875 So.2d 383 (Fla. 2004)] specifically condemned this practice").

Dismissal with prejudice as discovery sanction reversed due to lack of specific findings, including no finding of at least partial client fault.  Bank One, N.A. v. Harrod, 873 So.2d 519 (Fla. 4^th DCA 2004).  NOTE:  The Second and Fifth DCA recently reached similar conclusions regarding the necessity of client involvement in the disobedience in order to support a dismissal of the case.  See Jimenez v. Simon, 879 So.2d 13 (Fla. 2d DCA 2004); American Express v. Hickey, 869 So.2d 694 (Fla. 5^th DCA 2004).

Limited jurisdiction of JCCs does not include authority to sanction lawyers for violating Rules of Professional Conduct.  Pace v. Miami-Dade County School Board, 868 So.2d 1286 (Fla. 1^st DCA 2004).

Without announcing findings or conclusions on record, trial court erred by accepting proposed final judgment from one spouse in dissolution case and almost immediately signing it verbatim.  Perlow v. Berg-Perlow, 875 So.2d 383 (Fla. 2004) (revised opinion).

Trial court's dismissal of complaint with prejudice as discovery violation sanction affirmed.  Ham v. Dunmire, 855 So.2d 1238 (Fla. 1^st DCA 2003).