APPEALS FOR THE WEEK OF AUGUST 22nd, 2011

In WHILEY v. SCOTT, No. SC11-592 (Fla. Aug. 16, 2011), the Florida Supreme Court held that the Governor exceeded his constitutional authority by requiring that his executive office issue approval in advance for a state agency to engage in the rulemaking process established by the Florida Legislature. The Court held that absent an amendment to the Administrative Procedure Act or other delegation of such authority to the Governor's Office by the Florida Legislature, the Governor overstepped his constitutional authority and violated the doctrine of separation of powers. The Court refused to allow the Governor to impose limitations upon state agencies relating to their rulemaking authority by effectively suspending the process for creation of administrative rules which has been delegated to administrative agencies by the Florida Legislature.

The Court reasoned that administrative rulemaking is a derivative of lawmaking. The Legislature has delegated specific responsibilities to agency heads, such as the authority to determine whether to go forward with proposing, amending, repealing, or adopting rules. An agency is empowered to adopt rules if two requirements are satisfied: first, there must be a statutory grant of rulemaking authority, and second, there must be a specific law to be implemented. When adopting rules, the agencies must specifically conform to the rulemaking procedure enacted by the Legislature as the Florida Administrative Procedure Act, Chapter 120, Florida Statutes. The Legislature has expressly delegated the power to proceed with the statutory rulemaking process to the heads of the administrative departments, and not to the Governor or the Executive Office of the Governor. The Governor's executive orders at issue here infringe upon the process of rulemaking and encroach upon the Legislature's delegation of its rulemaking power by requiring approval, in advance, for an agency to engage in the statutory rulemaking process.

In COLLETTI v. STATE, No. 2D09-4341 (Fla. 2d DCA Aug. 19, 2011), the Defendant was charged with felony murder; the alleged felony was grand theft. At trial the State presented no evidence of the value of the items stolen. The DCA held that to convict an accused of grand theft, the State must prove the value of the items taken beyond a reasonable doubt. The value of tangible property is established by "the market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense." §
812.012(10)(a)(1) Florida Statutes (2008). Section 812.012(10)(b) provides that if the actual value cannot be ascertained, the jurors may find that it is "not less than a certain amount[.]"; the statute also provides that "if no such minimum value can be ascertained, the value is an amount less than $100." Id. However here, because the State did not demonstrate, and the record did not reflect, that it was impossible to prove the value of the stolen items, the "minimum value" exception to the State's burden to prove the value of the stolen property was not applicable. Therefore the DCA reversed the conviction for felony murder because the evidence was insufficient to prove the underlying felony, grand theft.

In L.C. v. A.M.C., No. 2D10-2669 (Fla. 2d DCA Aug. 19, 2011), on motion to correct opinion, the DCA reversed a domestic violence injunction where the hearing was conducted 25 hours after the Respondent was served and the Respondent had not been able to retain counsel; the DCA held that notice was insufficient. In a footnote the DCA took a very dim view of a mass administration of witness oaths, which have become all too common in our trial courts. The DCA held that the "transcript indicates that at the beginning of the domestic violence docket, the clerk administered the oath to 'the participants in the courtroom' who 'responded in unison.' The transcript does not reflect who was in the courtroom when the oath was administered. Multiple cases were on the docket, and the transcript reflects that 'other cases were called by the court' before this one. When this case was called, the trial court did not ask the parties if they had been sworn. Thus, we cannot determine from the record whether either party was present and took the oath when the clerk administered it to the group at the beginning of the docket."
Slip opinion at 3, note 1.

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