lack hearing in Florida

2026See Feliciano v. Dep’t of Rev., Child Support Enf’t, 305 So. 3d 801 , 803 (Fla. 4th DCA 2020) (“We note that the lack of a hearing and the resulting absence of a transcript provides this Court with little basis to conclude that the Department’s final order is not supported by the evidence.” (citing Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979))).

2024Appellant's arguments on appeal are arguments that should have been presented and analyzed at a hearing.”); Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979) (“In appellate proceedings the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error . . .

2019See also Shepard v. State, 227 So. 3d 746, 749 (Fla. 1st DCA 2017) (“While remorse and an admission of guilt may be grounds for mitigation of a sentence, the lack of these factors cannot be used to increase a defendant's sentence and such reliance violates the defendant's due process rights.”), approved on other grounds, 259 So. 3d 701 (Fla. 2018); Lawton, 207 So. 3d 359 at 361 (“Consideration of remorse . . . is appropriate where a defendant injects rehabilitation into the case as remorse is part of rehabilitation.”); Ritter v. State, 885 So. 2d 413, 414 (Fla. 1st DCA 2004) (“Although remorse

2017Ritter v. State, 885 So.2d 413, 414 (Fla. 1st DCA 2004).

2014Compare Rosier v. Sullivan, 103 So.3d 882, 885 (Fla. 2d DCA 2012) (“[T]he determination that a return is regular on its face, no matter what type of service, is governed only by the language of section 48.21 and does not require express reference to section 48.031(l)(a) or any other statute that serves to define a specified manner of service.”), review granted, 130 So.3d 692 (Fla.2013), with Gonzalez v. Totalbank, 472 So.2d 861, 864 (Fla. 3d DCA 1985) (suggesting that in addition to deficiencies in a return under section 48.21, the lack of a requirement listed in section 48.031 could make a re

2012But see Bank of Am., N.A. v. Bornstein, 39 So.3d 500, 504 (Fla. 4th DCA 2010) (“Neither the original nor the amended return of service showed the absence of the statutorily prescribed [, pursuant to section 48.081,] superior classes of persons who could have been served.”); Gonzalez, 472 So.2d at 864 (suggesting that in addition to deficiencies in a return under section 48.21, the lack of a requirement listed in section 48.031(l)(a) could make a return of service defective on its face).

2024Moreover, “due process limitations on the retroactive application of judicial interpretations of criminal statutes” are restricted “to those that are ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.’” Rogers, 532 U.S. at 461 (quoting Bouie v. City of Columbia, 378 U.S. 347, 354 (1964)). “[W]hen an unforeseeable court construction of a criminal statute is applied retroactively, the defendant has been deprived of due process because of the lack of warning that the conduct is criminal.” Hooper v. State, 703 So. 2d 1143, 1145 (Fla. 4th DC

2024Moreover, “due process limitations on the retroactive application of judicial interpretations of criminal statutes” are restricted “to those that are ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.’” Rogers, 532 U.S. at 461 (quoting Bouie v. City of Columbia, 378 U.S. 347, 354 (1964)). “[W]hen an unforeseeable court construction of a criminal statute is applied retroactively, the defendant has been deprived of due process because of the lack of warning that the conduct is criminal.” Hooper v. State, 703 So. 2d 1143, 1145 (Fla. 4th DC

2018See Vuong , 149 So.3d 174 ; Wissel v. State , 691 So.2d 507 , 508 (Fla. 2d DCA 1997) (rejecting an "attack, based on the lack of a rule or regulation to cover every step of the testing" because it was "not only speculative and theoretical, but also hyper-technical"); Friedrich , 681 So.2d 1157 ; see also State v. Kleiber , 175 So.3d 319 , 321 (Fla. 5th DCA 2015) ("[M]inor deviations from the rules will not prohibit the test results from being presented, as long as 'there is evidence from which the fact finder can conclude that the [test] itself remained accurate.' " (quoting State v. Donaldson

2016See Wissel v. State, 691 So.2d 507, 507-08 (Fla. 2d DCA 1997) (holding “that procedures that are implicit and incidental to procedures otherwise explicitly provided for in a properly adopted rule or regulation dó not require further codification by a further adopted rule or regulation [and] to hold otherwise belies statutory intent .... ” and that such an argument, “based on the lack of a rule or regulation to cover every step of the testing procedures ... is not only speculative and theoretical, but also hyper-technical.”).

2025For example, it notes that a witness “appeared nervous and fidgety,” “the judge asked [the witness] some questions related to some of the numbers” in a ledger, and “she answered his questions.” Statements like those are not a “sufficient substitute for the lack of a hearing transcript.” Starks v. Starks, 423 So. 2d 452, 453 (Fla. 1st DCA 1982) (explaining a statement that “fail[s] to recite the facts presented to the lower court” is not a proper substitute); accord Olympus Pools, Inc. v. Griffith, 412 So. 3d 887 , 889 (Fla. 2d DCA 2025) (determining a statement that “neither describes what occ

2024See, e.g., Hirsch v. Hirsch, 642 So. 2d 20 (Fla. 5th DCA 1994) (“[T]he appellate court is authorized to reverse a judgment as a matter of law where an error of law is apparent on the face of the judgment.” (citing Casella v. Casella, 569 So. 2d 848, 849 (Fla. 4th DCA 1990))). 4 The probate rules contain no parallel rules that would authorize a motion to strike. 7 5th DCA 1997)).5 We previously rejected the argument that rule 1.140(f) “provides a mechanism for striking a pleading that proposes to ‘re-hash’ prior issues, causes of action, or previously adjudicated arguments.” Id.

2024Moreover, “due process limitations on the retroactive application of judicial interpretations of criminal statutes” are restricted “to those that are ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.’” Rogers, 532 U.S. at 461 (quoting Bouie v. City of Columbia, 378 U.S. 347, 354 (1964)). “[W]hen an unforeseeable court construction of a criminal statute is applied retroactively, the defendant has been deprived of due process because of the lack of warning that the conduct is criminal.” Hooper v. State, 703 So. 2d 1143, 1145 (Fla. 4th DC

2024See, e.g., Hirsch v. Hirsch, 642 So. 2d 20 (Fla. 5th DCA 1994) (“[T]he appellate court is authorized to reverse a judgment as a matter of law where an error of law is apparent on the face of the judgment.” (citing Casella v. Casella, 569 So. 2d 848, 849 (Fla. 4th DCA 1990))). 4 The probate rules contain no parallel rules that would authorize a motion to strike. 7 5th DCA 1997)).5 We previously rejected the argument that rule 1.140(f) “provides a mechanism for striking a pleading that proposes to ‘re-hash’ prior issues, causes of action, or previously adjudicated arguments.” Id.

2024See, e.g., Hirsch v. Hirsch, 642 So. 2d 20 (Fla. 5th DCA 1994) (“[T]he appellate court is authorized to reverse a judgment as a matter of law where an error of law is apparent on the face of the judgment.” (citing Casella v. Casella, 569 So. 2d 848, 849 (Fla. 4th DCA 1990))). 4 The probate rules contain no parallel rules that would authorize a motion to strike. 7 5th DCA 1997)).5 We previously rejected the argument that rule 1.140(f) “provides a mechanism for striking a pleading that proposes to ‘re-hash’ prior issues, causes of action, or previously adjudicated arguments.” Id.

2021See Seal Prods. v. Mansfield, 705 So. 2d 973, 975 (Fla. 3d DCA 1998) (“Where the appeal is from a summary judgment, the appellant must bring up the summary judgment record, that is, the motion, supporting and opposing papers, and other matters of record which were pertinent to the summary judgment motion.

2021Schwab v. State, 814 So. 2d 402, 414 (Fla. 2002) (“Schwab’s first habeas claim is procedurally barred as it was raised and rejected in our discussion of Schwab’s rule 3.850 appeal. . . .

2019See also Shepard v. State, 227 So. 3d 746, 749 (Fla. 1st DCA 2017) (“While remorse and an admission of guilt may be grounds for mitigation of a sentence, the lack of these factors cannot be used to increase a defendant's sentence and such reliance violates the defendant's due process rights.”), approved on other grounds, 259 So. 3d 701 (Fla. 2018); Lawton, 207 So. 3d 359 at 361 (“Consideration of remorse . . . is appropriate where a defendant injects rehabilitation into the case as remorse is part of rehabilitation.”); Ritter v. State, 885 So. 2d 413, 414 (Fla. 1st DCA 2004) (“Although remorse

2019See also Shepard v. State, 227 So. 3d 746, 749 (Fla. 1st DCA 2017) (“While remorse and an admission of guilt may be grounds for mitigation of a sentence, the lack of these factors cannot be used to increase a defendant's sentence and such reliance violates the defendant's due process rights.”), approved on other grounds, 259 So. 3d 701 (Fla. 2018); Lawton, 207 So. 3d 359 at 361 (“Consideration of remorse . . . is appropriate where a defendant injects rehabilitation into the case as remorse is part of rehabilitation.”); Ritter v. State, 885 So. 2d 413, 414 (Fla. 1st DCA 2004) (“Although remorse

2019See also Shepard v. State, 227 So. 3d 746, 749 (Fla. 1st DCA 2017) (“While remorse and an admission of guilt may be grounds for mitigation of a sentence, the lack of these factors cannot be used to increase a defendant's sentence and such reliance violates the defendant's due process rights.”), approved on other grounds, 259 So. 3d 701 (Fla. 2018); Lawton, 207 So. 3d 359 at 361 (“Consideration of remorse . . . is appropriate where a defendant injects rehabilitation into the case as remorse is part of rehabilitation.”); Ritter v. State, 885 So. 2d 413, 414 (Fla. 1st DCA 2004) (“Although remorse

2018Generally, in order to raise an issue on appeal, it must be presented to the trial court, and the “specific legal argument or ground to be argued on appeal must be part of that presentation.” Holland v. Cheney Bros., Inc., 22 So. 3d 648, 649-50 (Fla. 1st DCA 2009); see also Pensacola Beach Pier, Inc. v. King, 66 So. 3d 321, 324 (Fla. 1st DCA 2011) (finding that appellants failed to preserve argument for appeal where the “trial court’s error appeared for the first time on the face of the final summary judgment” and appellants did not attempt to correct error in the trial court).

2018See Vuong , 149 So.3d 174 ; Wissel v. State , 691 So.2d 507 , 508 (Fla. 2d DCA 1997) (rejecting an "attack, based on the lack of a rule or regulation to cover every step of the testing" because it was "not only speculative and theoretical, but also hyper-technical"); Friedrich , 681 So.2d 1157 ; see also State v. Kleiber , 175 So.3d 319 , 321 (Fla. 5th DCA 2015) ("[M]inor deviations from the rules will not prohibit the test results from being presented, as long as 'there is evidence from which the fact finder can conclude that the [test] itself remained accurate.' " (quoting State v. Donaldson

2018See Vuong , 149 So.3d 174 ; Wissel v. State , 691 So.2d 507 , 508 (Fla. 2d DCA 1997) (rejecting an "attack, based on the lack of a rule or regulation to cover every step of the testing" because it was "not only speculative and theoretical, but also hyper-technical"); Friedrich , 681 So.2d 1157 ; see also State v. Kleiber , 175 So.3d 319 , 321 (Fla. 5th DCA 2015) ("[M]inor deviations from the rules will not prohibit the test results from being presented, as long as 'there is evidence from which the fact finder can conclude that the [test] itself remained accurate.' " (quoting State v. Donaldson

2018Generally, in order to raise an issue on appeal, it must be presented to the trial court, and the “specific legal argument or ground to be argued on appeal must be part of that presentation.” Holland v. Cheney Bros., Inc., 22 So. 3d 648, 649-50 (Fla. 1st DCA 2009); see also Pensacola Beach Pier, Inc. v. King, 66 So. 3d 321, 324 (Fla. 1st DCA 2011) (finding that appellants failed to preserve argument for appeal where the “trial court’s error appeared for the first time on the face of the final summary judgment” and appellants did not attempt to correct error in the trial court).

2018See Vuong , 149 So.3d 174 ; Wissel v. State , 691 So.2d 507 , 508 (Fla. 2d DCA 1997) (rejecting an "attack, based on the lack of a rule or regulation to cover every step of the testing" because it was "not only speculative and theoretical, but also hyper-technical"); Friedrich , 681 So.2d 1157 ; see also State v. Kleiber , 175 So.3d 319 , 321 (Fla. 5th DCA 2015) ("[M]inor deviations from the rules will not prohibit the test results from being presented, as long as 'there is evidence from which the fact finder can conclude that the [test] itself remained accurate.' " (quoting State v. Donaldson

2017Although the Florida Supreme Court held in Hurst v. State, 202 So.3d 40, 43 (Fla. 2016), that the amended statutory death penalty scheme is constitutionally infirm due to the lack of a requirement that the jury’s recommendation be unanimous, we agree with Petitioner that the trial court should have severed the offending component of the statute.

2016However, since I do not believe a summary contempt proceeding can be likened to a "criminal prosecution," see infra n.4, I am not prepared to hold, as the majority appears to, that the failure to have a court reporter record and transcribe a summary contempt proceeding amounts to fundamental error. - 13 - court's findings sufficiently describe conduct that occurred "in open court, in the presence of the judge, which disturbs the court's business, where all of the essential elements of the misconduct are under the eye of the court, [and] are actually observed by the court." In re Oliver, 333 U.

2016Cf. Woolf v. Woolf, 901 So.2d 905, 911 (Fla. 4th DCA 2005) (holding that error in the lack of the required warning language was waived when the alleged contemnor appeared at the hearing).

2014Compare Rosier v. Sullivan, 103 So.3d 882, 885 (Fla. 2d DCA 2012) (“[T]he determination that a return is regular on its face, no matter what type of service, is governed only by the language of section 48.21 and does not require express reference to section 48.031(l)(a) or any other statute that serves to define a specified manner of service.”), review granted, 130 So.3d 692 (Fla.2013), with Gonzalez v. Totalbank, 472 So.2d 861, 864 (Fla. 3d DCA 1985) (suggesting that in addition to deficiencies in a return under section 48.21, the lack of a requirement listed in section 48.031 could make a re

2013Compare United States v. Hunt, 129 F.3d 739, 746 (5th Cir.1997)(remanding for entry of judgment on uncharged lesser included offense where "the lack of instruction on the lesser included offense was not unduly prejudicial” to the defendant) with United States v. Dinkane, 17 F.3d 1192, 1198 (9th Cir.1994)(requiring that jury be instructed on the lesser-included offense).

2013Compare United States v. Hunt, 129 F.3d 739, 746 (5th Cir.1997)(remanding for entry of judgment on uncharged lesser included offense where "the lack of instruction on the lesser included offense was not unduly prejudicial” to the defendant) with United States v. Dinkane, 17 F.3d 1192, 1198 (9th Cir.1994)(requiring that jury be instructed on the lesser-included offense).