entitlement immunity in Florida

2010Moreover, as recently observed by Judge Shepherd, "[i]t makes little sense to afford a shield of immunity from suit ... and then fail to enforce it at the earliest moment when enforcement is appropriate." Brown v. McKinnon, 964 So.2d 173, 176 (Fla. 3d DCA 2007) (Shepherd, J., dissenting).

2010Moreover, as recently observed by Judge Shepherd, "[i]t makes little sense to afford a shield of immunity from suit . . . and then fail to enforce it at the earliest moment when enforcement is appropriate." Brown v. McKinnon, 964 So.2d 173, 176 (Fla. 3d DCA 2007) (Shepherd, J., dissenting).

2010As our supreme court explained in the context of qualified immunity— which, like the immunity at issue in this case, is immunity from suit rather than a defense to liability—the entitlement to immunity is "effectively lost if a case is erroneously permitted to go to trial" because the party entitled to the immunity cannot be "`re-immunized' if erroneously required to stand trial or face the other burdens of litigation." Tucker, 648 So.2d at 1189 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985)).

2010As our supreme court explained in the context of qualified immunity—which, like the immunity at issue in this case, is immunity from suit rather than a defense to liability—the entitlement to immunity is "effectively lost if a case is erroneously permitted to go to trial" because the party entitled to the immunity cannot be "`re-immunized' if erroneously required to stand trial or face the other burdens of litigation." Tucker, 648 So.2d at 1189 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985)).

2025See Epic Metals Corp., 547 So. 2d at 199 (holding that because “[n]either a motion nor notice of hearing to determine entitlement to the setoff was made,” the trial court violated a litigant’s due process rights by entering an order which summarily determined entitlement to a setoff); First Cmty. Ins.

2025Univ. v. Bowman, 853 So. 2d 507, 509 (Fla. 4th DCA 2003) (“In the instant case, the language in the General Release, even though expansive, is typical of other general releases and is clear and unambiguous.”). 2 We agree with the Insured, however, that the circuit court improperly expanded the scope of the entitlement hearing to determine the amount of attorney’s fees and costs.

2025Mellon, 338 So. 3d 338 , 341 n.2 (Fla. 3d DCA 2022))); Fision Corp. v. Frueh, 369 So. 3d 1211 , 1217–18 (Fla. 2d DCA 2023) (recognizing “trial courts need not grant rehearing when the movant raises a new argument that could have, and should have, been raised prior to entry of summary judgment”); Coffman Realty, Inc. v. Tosohatchee Game Preserve, Inc., 381 So. 2d 1164, 1167 (Fla. 5th DCA 1982) (concluding that “it is not an abuse of discretion for a trial judge to hold that an affidavit filed with a petition for rehearing is too late”), approved and adopted by, 413 So. 2d 1 (Fla. 1982).

2023Yet, it is not an abuse of discretion to deny a motion for reconsideration which raises an issue that could have been, but was not, raised in a pre-hearing filing or at the entitlement hearing.”) (quotations omitted); Fitchner v. Lifesouth Cmty. Blood Ctrs., Inc., 88 So. 3d 269, 278 (Fla. 1st DCA 2012) (noting that trial judges have the authority, but are not required, to consider new issues that are presented for the first time on rehearing); Gaffney v. Gaffney, 965 So. 2d 1217, 1221-22 (Fla. 4th DCA 2007) (holding that a trial court does not abuse its discretion when it declines to consider

2023Yet, it is not an abuse of discretion to deny a motion for reconsideration which raises an issue that could have been, but was not, raised in a pre-hearing filing or at the entitlement hearing.”) (quotations omitted); Fitchner v. Lifesouth Cmty. Blood Ctrs., Inc., 88 So. 3d 269, 278 (Fla. 1st DCA 2012) (noting that trial judges have the authority, but are not required, to consider new issues that are presented for the first time on rehearing); Gaffney v. Gaffney, 965 So. 2d 1217, 1221-22 (Fla. 4th DCA 2007) (holding that a trial court does not abuse its discretion when it declines to consider

2022See generally Audiffred v. Arnold, 161 So. 3d 1274, 1279 (Fla. 2015).

2018See id.

2015See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979).

2010See also Smith v. Rankin, 950 So.2d 1278, 1279 (Fla. 2d DCA 2007) (LaRose, J., concurring).

2010See also Smith v. Rankin, 950 So.2d 1278, 1279 (Fla. 2d DCA 2007) (La-Rose, J., concurring).

2005See Johnson v. State, 43 S.W.3d 1, 6 (Tex.Crim.App.2001) ("If one of an accused's peremptory challenges could be taken away from him, why not five be taken, and if five, why not ten, leaving none, and all jurors be acceptable save unfair and partial ones.") (quoting Wolfe v. State, 147 Tex.Crim. 62 , 178 S.W.2d 274, 279-80 (1944)).

2005See Johnson v. State, 43 S.W.3d 1, 6 (Tex.Crim.App.2001) ("If one of an accused's peremptory challenges could be taken away from him, why not five be taken, and if five, why not ten, leaving none, and all jurors be acceptable save unfair and partial ones.") (quoting Wolfe v. State, 147 Tex.Crim. 62 , 178 S.W.2d 274, 279-80 (1944)).

2005See Johnson v. State, 43 S.W.3d 1, 6 (Tex.Crim.App.2001) ("If one of an accused's peremptory challenges could be taken away from him, why not five be taken, and if five, why not ten, leaving none, and all jurors be acceptable save unfair and partial ones.") (quoting Wolfe v. State, 147 Tex.Crim. 62 , 178 S.W.2d 274, 279-80 (1944)).

2002Accordingly, the reasoning that underlies the immediate appealability of an order denying ... qualified immunity should be... [applicable];... the district court's decision is effectively unreviewable on appeal from a final judgment."); see also Tucker v. Resha, 610 So.2d 460, 464 (Fla. 1st DCA 1992), quashed on other grounds 648 So.2d 1187 (Fla.1994) ("Because of the nature and purpose of the claim of qualified immunity, an appeal after final judgment would hardly constitute a full and adequate remedy, for once the protection of immunity is lost and trial ensues, there is no means of reimmuni

1989Accord Montoya v. State, 489 So.2d 794 (Fla. 3d DCA), review denied, 496 So.2d 143 (Fla. 1986) (failure to request a jury instruction amounts to waiver of an entitlement to such instruction).

1989In State v. Daophin, 533 So.2d 761 , 762 fn. 2 (Fla. 1988), the court noted that the standard jury instructions have been amended "to provide that there [are] no necessarily lesser included offenses (category one) to 893.135 and to reclassify the former category one offenses as category two, permissive lesser included offenses." The Florida Bar Re Standard Jury Instructions — Criminal, 508 So.2d 1221, 1234-35 (Fla. 1987).

1987The defendant's entitlement to an instruction on lesser included offenses is grounded upon his right to an instruction that affords the jury an opportunity to exercise its "pardon power." State v. Wimberly, 498 So.2d at 932 ; State v. Baker, 456 So.2d 419, 422 (Fla. 1984); State v. Bruns, 429 So.2d 307 (Fla. 1983); Mosley v. State, 482 So.2d 530 , 532 fn. 1 (Fla. 1st DCA) approved by 492 So.2d 1071 (Fla. 1986); Weller v. State, 501 So.2d 1291, 1292 (Fla. 4th DCA 1986).

1987The defendant's entitlement to an instruction on lesser included offenses is grounded upon his right to an instruction that affords the jury an opportunity to exercise its "pardon power." State v. Wimberly, 498 So.2d at 932 ; State v. Baker, 456 So.2d 419, 422 (Fla. 1984); State v. Bruns, 429 So.2d 307 (Fla. 1983); Mosley v. State, 482 So.2d 530 , 532 fn. 1 (Fla. 1st DCA) approved by 492 So.2d 1071 (Fla. 1986); Weller v. State, 501 So.2d 1291, 1292 (Fla. 4th DCA 1986).