REBECCA ANNE GONSER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Fifth District Court of Appeal affirmed the appellant's judgment and sentences, while criticizing the appellant's improper presentation of disputed facts as established facts in her appellate brief.
The appellant's judgment and sentences are affirmed despite the appellant's improper insertion of disputed facts presented as established facts in her appellate brief.
[1] An appellate attorney's presentation of testimony of the appellant as established fact in an appellate brief, contrary to the trial court's explicit credibility finding f…
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Join FLexlaw to unlock all legal intelligenceThe trial court conducted an evidentiary hearing on highly disputed facts and found the victim's testimony more credible than the appellant's testimon…
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We affirm the appellant’s judgment and sentences. See Bretherick v. State, 135 So.3d 337 (Fla. 5th DCA 2013), review granted, 145 So.3d 821 (Fla.2014).
While no discussion .of the merits of the case is required, we find it necessary to comment on the appellant’s improper insertion of alleged facts in both the statement of the facts and the argument sections of her brief. As an appellate court, we are required to consider the facts in the light most favorable to the appellee, and the appellant must properly address the facts in that manner. Such was clearly- not done by the appellant in this case. The facts in this case were highly disputed, and the trial court conducted an evidentiary hearing thereon. The court thereafter expressly found the testimony of the victim to be more credible than the testimony of the appellant. In spite of this explicit finding, the appellant’s brief improperly presented as “fact” the testimony of the appellant, and counsel based her legal arguments on those facts. Such practices are inappropriate and unprofessional. See Marquardt v. State, 156 So.3d 464 (Fla.2015) (explaining that a court reviewing a ruling on a motion to suppress must interpret the evidence and reasonable inferences and deductions in the manner most favorable to sustaining the ruling of the court); Hagood v. Wells Fargo N.A., 125 So.3d 1012 (Fla. 5th DCA 2013) (cautioning that appellate attorney’s filing of initial brief that was based entirely on a false assertion of fact constitutes an act of professional negligence).
AFFIRMED.
PALMER and LAMBERT, JJ„ concur.
COHEN, J,, concurring in result only.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Marquardt v. State, 156 So. 3d 464 (Fla. 2015)
- Bretherick v. State, 135 So. 3d 337 (Fla. 5th DCA 2013)
- Emmett B. Hagood, III v. Wells Fargo N.A., 125 So. 3d 1012 (Fla. 5th DCA 2013)