HERBERT BOPP, APPELLANT,
v.
SHIRLEY A. SIMS, PERSONAL REPRESENTATIVE OF THE ESTATE OF E.E. SIMS, JR., APPELLEE
HERBERT BOPP, APPELLANT,
SHIRLEY A. SIMS, PERSONAL REPRESENTATIVE OF THE ESTATE OF E.E. SIMS, JR., APPELLEE
539 So. 2d 1165
Florida District Court of Appeal, Fourth District (1989)
Positive Treatment
Cited by 3 cases
Opinion of the Court
PER CURIAM.
REVERSED. We reverse because we find in the record an affidavit from appellant, filed before the hearing on the motion for summary judgment, that asserts a defense that was left unresolved at the time summary judgment was entered. It also appears that the court's dismissal of appellant’s counterclaim was improper because the grounds for dismissal should have been the subject of an affirmative defense. In addition, it appears that the counterclaim was not subject to the limitations provisions of the probate act, at least in an amount up to the amount claimed by the estate. See § 733.702(3)(d), Fla.Stat.(1987).
ANSTEAD and WALDEN, JJ., and OWEN, WILLIAM C., Jr., (Retired), Associate Judge, concur.
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Williams v. State, 581 So. 2d 144 (Fla. 1991)…oes not negate the possibility that it may also be established in other ways. We thus adhere to existing case law which approves departure upon an escalating pattern as to the severity of offenses which are strictly nonviolent. See Maulden v. State, 539 So. 2d 1165 (Fla. 4th DCA 1989); Simmons v. State, 483 So. 2d 530 (Fla. 1st DCA 1986). The fact that Williams progressed from the commission of misdemeanors to the third-degree felony of grand theft and finally to the instant second-degree felony of possession…
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Kirby v. State, 553 So. 2d 1290 (Fla. 1st DCA 1989)…oes not negate the possibility that it may also be established in other ways. We thus adhere to existing case law which approves departure upon an escalating pattern as to the severity of offenses which are strictly nonviolent. See Maulden v. State, 539 So. 2d 1165 (Fla.4th DCA 1989); Simmons v. State, 483 So. 2d 530 (Fla. 1st DCA 1986). As a final reason for departure the court stated that: ... In light of [appellant’s] continual eighteen (18) year history of writing worthless bank checks, there is insuffic…
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Bennie Lee Pearson v. State, 650 So. 2d 210 (Fla. 3d DCA 1995)…te v. Vanhorn, 561 So. 2d 584, 585 (Fla.1990); Keys v. State, 500 So. 2d 134 (Fla.1986). Moreover, “[a] written notation on the score-sheet has been held to fulfill the requirements of putting the reasons for departure in writing.” Maulden v. State, 539 So. 2d 1165, 1166 (Fla. 4th DCA), review denied, 551 So. 2d 462 (Fla.1989) (citing Torres-Arboledo v. State, 524 So. 2d 403 (Fla.), cert. denied, 488 U.S. 901, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988)); Fla.R.Crim.P. 3.701(d)(ll). The trial court, by noting on the…