arbitrary rule in Florida

2007We have held that there is no violation of the Florida Evidence Code when a party attempts to "mitigate the impact of inconsistent statements likely to be introduced, nor anything intrinsic to the jury's truth-finding function in an arbitrary requirement that opposing counsel's trial strategy may not be undercut." Bell v. State, 491 So.2d 537, 538 (Fla.1986).

1986"Generally the rule against impeaching your own witness has not been interpreted to forbid counsel from asking his own witness on direct examination about prior inconsistent statements or prior convictions when done in an attempt to `soften the blow' or reduce the harmful consequences." Ehrhardt, § 608.2 (citations omitted). *521 Bell v. State, 491 So.2d at 538 .

2025Compare Gideon, 372 U.S. at 344 (noting the “safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law”) with Adams, 317 U.S. at 280 (“to deny [an accused] in the exercise of his free choice the right to dispense with [Constitutional] safeguards . . . and to base such denial on an arbitrary rule that a man cannot choose to conduct his defense before a judge rather than a jury unless, against his will, he has a lawyer to advise him, although he reasonably deems himself the best advisor for his own needs, is to imprison a man in his

2025Compare Gideon, 372 U.S. at 344 (noting the “safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law”) with Adams, 317 U.S. at 280 (“to deny [an accused] in the exercise of his free choice the right to dispense with [Constitutional] safeguards . . . and to base such denial on an arbitrary rule that a man cannot choose to conduct his defense before a judge rather than a jury unless, against his will, he has a lawyer to advise him, although he reasonably deems himself the best advisor for his own needs, is to imprison a man in his

2025Compare Gideon, 372 U.S. at 344 (noting the “safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law”) with Adams, 317 U.S. at 280 (“to deny [an accused] in the exercise of his free choice the right to dispense with [Constitutional] safeguards . . . and to base such denial on an arbitrary rule that a man cannot choose to conduct his defense before a judge rather than a jury unless, against his will, he has a lawyer to advise him, although he reasonably deems himself the best advisor for his own needs, is to imprison a man in his

2025Compare Gideon, 372 U.S. at 344 (noting the “safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law”) with Adams, 317 U.S. at 280 (“to deny [an accused] in the exercise of his free choice the right to dispense with [Constitutional] safeguards . . . and to base such denial on an arbitrary rule that a man cannot choose to conduct his defense before a judge rather than a jury unless, against his will, he has a lawyer to advise him, although he reasonably deems himself the best advisor for his own needs, is to imprison a man in his

2025Compare Gideon, 372 U.S. at 344 (noting the “safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law”) with Adams, 317 U.S. at 280 (“to deny [an accused] in the exercise of his free choice the right to dispense with [Constitutional] safeguards . . . and to base such denial on an arbitrary rule that a man cannot choose to conduct his defense before a judge rather than a jury unless, against his will, he has a lawyer to advise him, although he reasonably deems himself the best advisor for his own needs, is to imprison a man in his

2025Compare Gideon, 372 U.S. at 344 (noting the “safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law”) with Adams, 317 U.S. at 280 (“to deny [an accused] in the exercise of his free choice the right to dispense with [Constitutional] safeguards . . . and to base such denial on an arbitrary rule that a man cannot choose to conduct his defense before a judge rather than a jury unless, against his will, he has a lawyer to advise him, although he reasonably deems himself the best advisor for his own needs, is to imprison a man in his

2025Compare Gideon, 372 U.S. at 344 (noting the “safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law”) with Adams, 317 U.S. at 280 (“to deny [an accused] in the exercise of his free choice the right to dispense with [Constitutional] safeguards . . . and to base such denial on an arbitrary rule that a man cannot choose to conduct his defense before a judge rather than a jury unless, against his will, he has a lawyer to advise him, although he reasonably deems himself the best advisor for his own needs, is to imprison a man in his

2025Compare Gideon, 372 U.S. at 344 (noting the “safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law”) with Adams, 317 U.S. at 280 (“to deny [an accused] in the exercise of his free choice the right to dispense with [Constitutional] safeguards . . . and to base such denial on an arbitrary rule that a man cannot choose to conduct his defense before a judge rather than a jury unless, against his will, he has a lawyer to advise him, although he reasonably deems himself the best advisor for his own needs, is to imprison a man in his

2018Thus, as a result of this Court's arbitrary framework for determining the retroactivity of Hurst , Dailey remains under an unconstitutionally unreliable sentence of death. 1 In affirming Dailey's death sentence after resentencing, we affirmed the death sentence, rejecting Dailey's arguments that his penalty phase jury's "recommendation of death was invalid and he was entitled to an entire new penalty phase trial before a new jury." Dailey , 659 So.2d at 247 -48 . 2 Hurst v. State ( Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161 , 198 L.Ed.2d 246 (2017) ; see Hu

2018Thus, as a result of this Court's arbitrary framework for determining the retroactivity of Hurst , Dailey remains under an unconstitutionally unreliable sentence of death. 1 In affirming Dailey's death sentence after resentencing, we affirmed the death sentence, rejecting Dailey's arguments that his penalty phase jury's "recommendation of death was invalid and he was entitled to an entire new penalty phase trial before a new jury." Dailey , 659 So.2d at 247 -48 . 2 Hurst v. State ( Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161 , 198 L.Ed.2d 246 (2017) ; see Hu

2014See, e.g., Kalmanson v. Ducote, 955 So.2d 50, 50-51 (Fla. 5th DCA 2007) (determining that when the respondent had appealed a sanction order on the basis that the trial court’s imposition of monetary sanctions violated his right to due process, the appellate court had affirmed the sanction order, and the respondent’s motions for rehearing, for rehearing en banc and for a written decision were denied, the doctrine of res judicata precluded the trial court from staying enforcement of the sanction order and ruling a hearing was necessary to determine whether the respondent was given adequate notic

2014See, e.g., Kalmanson v. Ducote, 955 So.2d 50, 50-51 (Fla. 5th DCA 2007) (determining that when the respondent had appealed a sanction order on the basis that the trial court’s imposition of monetary sanctions violated his right to due process, the appellate court had affirmed the sanction order, and the respondent’s motions for rehearing, for rehearing en banc and for a written decision were denied, the doctrine of res judicata precluded the trial court from staying enforcement of the sanction order and ruling a hearing was necessary to determine whether the respondent was given adequate notic

2007"As a practical matter, the traditional foreseeability analysis eliminates the arbitrary requirement of the impact rule, which will lead to greater stability and greater predictability in this area of the law." Willis, 967 So.2d at 863 (Pariente, J., concurring).

2003NOTES [1] The impact rule does not apply to recognized intentional torts that result in predominantly emotional damages, including the intentional infliction of emotional distress, see Eastern Airlines, Inc. v. King, 557 So.2d 574, 576-77 (Fla.1990), defamation, see Miami Herald Publishing Co. v. Brown, 66 So.2d 679, 681 (Fla.1953), and invasion of privacy, see Cason v. Baskin, 155 Fla. 198 , 20 So.2d 243, 251 (1944).

2003NOTES [1] The impact rule does not apply to recognized intentional torts that result in predominantly emotional damages, including the intentional infliction of emotional distress, see Eastern Airlines, Inc. v. King, 557 So.2d 574, 576-77 (Fla.1990), defamation, see Miami Herald Publishing Co. v. Brown, 66 So.2d 679, 681 (Fla.1953), and invasion of privacy, see Cason v. Baskin, 155 Fla. 198 , 20 So.2d 243, 251 (1944).

2003NOTES [1] The impact rule does not apply to recognized intentional torts that result in predominantly emotional damages, including the intentional infliction of emotional distress, see Eastern Airlines, Inc. v. King, 557 So.2d 574, 576-77 (Fla.1990), defamation, see Miami Herald Publishing Co. v. Brown, 66 So.2d 679, 681 (Fla.1953), and invasion of privacy, see Cason v. Baskin, 155 Fla. 198 , 20 So.2d 243, 251 (1944).

2003NOTES [1] The impact rule does not apply to recognized intentional torts that result in predominantly emotional damages, including the intentional infliction of emotional distress, see Eastern Airlines, Inc. v. King, 557 So.2d 574, 576-77 (Fla.1990), defamation, see Miami Herald Publishing Co. v. Brown, 66 So.2d 679, 681 (Fla.1953), and invasion of privacy, see Cason v. Baskin, 155 Fla. 198 , 20 So.2d 243, 251 (1944).

1989In answering this question in the negative, the Court explained: "Just as a State may not apply an arbitrary rule of competence to exclude a material defense witness from taking the stand, it also may not apply a rule of evidence that permits a witness to take the stand, but arbitrarily excludes material portions of his testimony." Id. at 2711.

1989The Court stated that the per se rule does not allow a trial court the opportunity to consider whether post-hypnosis testimony may be admissible in a particular case, concluding that "[t]his rule operates to the detriment of any defendant who undergoes hypnosis, without regard to the reasons for it, the circumstances under which it took place, or any independent verification of the information it produced." Id. at 2712. *976 The opinion noted that many states which have adopted the exclusionary rule did so only as to witnesses and not for a defendant's testimony.

1978It is an arbitrary exception to § 72(b) of the Internal Revenue Code which establishes a formula based upon the taxpayer's contribution to the fund from which the pension is paid. [ Yeager v. Unemployment Compensation Board of Review, 196 Pa. Super. 162 , 173 A.2d 802, 804-805 (1961).] [Emphasis supplied.]'" A similar argument has been made and rejected in other cases. [3] See: Bullerman v. Michigan Employment Security Commission, 25 Mich. App. 242 , 181 N.W.2d 330 (1970); Yeager v. Unemployment Compensation Board of Review, 196 Pa.Super. 162 , 173 A.2d 802 (1961); Holmes v. Cook, 45 Ala.App.

1978It is an arbitrary exception to § 72(b) of the Internal Revenue Code which establishes a formula based upon the taxpayer's contribution to the fund from which the pension is paid. [ Yeager v. Unemployment Compensation Board of Review, 196 Pa. Super. 162 , 173 A.2d 802, 804-805 (1961).] [Emphasis supplied.]'" A similar argument has been made and rejected in other cases. [3] See: Bullerman v. Michigan Employment Security Commission, 25 Mich. App. 242 , 181 N.W.2d 330 (1970); Yeager v. Unemployment Compensation Board of Review, 196 Pa.Super. 162 , 173 A.2d 802 (1961); Holmes v. Cook, 45 Ala.App.