Dissent in the districts!–en banc edition
In the first en banc case of 2018, Judge Eisnaugle (who finally has a profile page on the 5DCA website) dissented in the Fifth DCA’s decision to recede from a 1999 case called Starkey v. Linn. Judge Berger joined the dissent. The issue is how to interpret section 742.045: “The court may . . . order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings.” Does that language include the costs and fees expended in an appeal?
Judge Lambert and eight judges said “any proceeding” includes appeals. Judges Eisnaugle and Berger said “any proceeding” can’t be separated from “under this chapter,” and nothing in “this chapter” includes appeals. The “under this chapter” language narrows the scope of “any proceeding.” By including appeals, the court was exercising legislative power, according to Eisnaugle:
For what it’s worth, I agree that the Legislature should amend the statute to authorize appellate attorney’s fees. Nevertheless, eighteen years after Starkey, it has not done so. While I invite them to do so now, that decision is for the Legislature alone.
We’ll see if the Legislature looks at the issue during this year’s session.
Good day for juveniles at 2DCA
The Second reversed two juvenile delinquency cases. In C.M., they held that self-defense is a defense to the crime of “affray.” The Legislature didn’t define “affray” in the statute, so the court gave us the common-law definition: “the fighting of two or more persons in a public place, to the terror of the people.” And because a fight involves battery, and a defense to battery is self-defense, the court adopted other states’ view that self-defense can be a defense to an affray. So the court reversed because the State didn’t rebut C.M.’s self-defense theory. But they didn’t discuss whether this fight between two high school students outside the cafeteria was “to the terror of the people.”
In J.C., the State prosecuted J.C. (12 years’ old at time of incident) for knocking on a front door, tossing a smoke bomb into his buddy’s house, and running off laughing after the Fourth of July. His buddy (14 years’ old) immediately grabbed it and threw it out of the house, closing the door. Nobody got hurt. No property damaged. Just smoke. They remain buddies to this day, according to the court.
But his buddy’s uncle came home to a smoky house and called police. J.C. was charged and adjudicated on culpable negligence grounds. On appeal, the majority found that the state didn’t prove culpable negligence because the act wasn’t “likely to result in death or great bodily harm,” a requirement imposed under a 1985 case called Azima v. State.
Well, according to Judge Salario in his separate opinion, the Azima case added to the statute something that wasn’t there. Still, he agreed with reversing J.C.’s case:
So I think we should reevaluate Azima in an appropriate case. I do hope, however, that the appropriate case involves facts a little more deserving of prosecution than what appears from our record to be little (if anything) more than a preteen boy’s careless exuberance with a smoke bomb around the Fourth of July.
We hope so, too.
Come Monday, it’ll be alright
Today we might see opinions from the First DCA, in their new format and style. If so, we’ll say so on Twitter, @fla_ct_rev. If not, enjoy your Monday.