OLYMPUS INSURANCE COMPANY, PETITIONER,
v.
MAIKEL HERNANDEZ, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF YAIMI GANDUL, RESPONDENT
The trial court departed from the essential requirements of law when it granted the motion for substitution of party and denied the motion to dismiss based upon counsel’s unsworn assertions of excusable neglect. Steinhardt v. Intercondominium Grp. Inc., 771 So.2d 614, 614 (Fla. 4th DCA 2000). The petition for writ of cer-tiorari is granted, and the trial court’s February 19, 2015 order is quashed. On remand, the trial court is directed to conduct an evidentiary hearing to determine whether the untimely filing of the motion for substitution of party was caused by excusable neglect. Id. at 615.
STEVENSON and FORST, JJ„ concur. CONNER, J., dissents with opinion.
dissenting.
I dissent and agree with the reasoning expressed by Judge Warner in her dissent in Volkswagen Group of America, Inc. v. Harmon, 110 So.3d 536 (Fla. 4th DCA 2013).
CONNER, J.,
dissenting.
I dissent and agree with the reasoning expressed by Judge Warner in her dissent in Volkswagen Group of America, Inc. v. Harmon, 110 So. 3d 536 (Fla. 4th DCA 2013).
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Antoine E. McCloud v. State, 224 So. 3d 842 (Fla. 2d DCA 2017)…e was no phone call in progress. At the close of the State’s case, the defense moved for a judgment of acquittal. Defense counsel argued that the evidence was insufficient to sustain a conviction for witness tampering because under McCray v. State, 171 So. 3d 831, 832 (Fla. 1st DCA 2015), the State was required to and failed to present evidence that “the victim [or witness] was attempting to contact law enforcement during the time of the incident.” The trial court denied the motion, finding that the State’s…
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Antoine E. McCloud v. State, 260 So. 3d 911 (Fla. 2018)…ecision of the Second District Court of Appeal in McCloud v. State , 224 So. 3d 842 (Fla. 2d DCA 2017). The district court certified that its decision is in direct conflict with the decision of the First District Court of Appeal in McCray v. State , 171 So. 3d 831 (Fla. 1st DCA 2015). McCloud , 224 So. 3d at 847. We have jurisdiction. [*913] See art. V, § 3(b)(4), Fla. Const. This conflict concerns the proper interpretation of Florida's witness tampering statute: section 914.22, Florida Statutes (2014). For t…
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Taffe v. State, 232 So. 3d 431 (Fla. 4th DCA 2017)…position that in order to support a-conviction for witness tampering under section 914.22(l)(e), the State is required' “to present evidence that the victim was attempting to contact law enforcement during the time of the-incident.” McCray v. State, 171 So. 3d 831, 832 (Fla. 1st DCA 2015) (citing Thompson v. State, 153 So. 3d 996 (Fla. 1st DCA 2015) and Longwell v. State, 123 So. 3d 1197 (Fla. 1st DCA 2013)). We reject this authority and instead adopt the Second District’s holding in McCloud v. State, 224 So.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Steinhardt v. Intercondominium Grp., Inc., 771 So. 2d 614 (Fla. 4th DCA 2000)
- Volkswagen Grp. OF Am., Inc. v. Harmon, 110 So. 3d 536 (Fla. 4th DCA 2013)