The Side Door: Florida Caselaw, Week of October 9, 2026

A crash in Broward County, and a driver charged with two counts of vehicular homicide. At trial, the State needed the jury to hear how fast the cars were going, so it called the detective who worked the crash. The detective acknowledged not being an accredited accident reconstructionist.

What the detective had was something called a momentum formula. To run it, the detective took the vehicles’ weights from averages found on internet searches, worked out the departure angles using Google Maps and a protractor, and assumed one car’s approach angle was zero, because, in the detective’s words, that is how we are taught to do it when we use this formula. And the detective could no longer produce the field sketch behind the numbers.

The trial judge let the speeds in as part of the investigation. This week the Fourth District reversed both homicide convictions and sent the case back for a new trial.

I’m Rory Safir, and this is Reasonably Safir.

This one is the caselaw edition: the decisions Florida’s appellate courts handed down this week, case by case, for the lawyers who’d rather hear them than read them.

Here’s the thing about this week. Over and over, the question was whether something the law keeps out the front door can come in another way. A detective’s expert opinion came in disguised as an investigation. A probationer’s polygraph results stayed out, but the questions they raised came in. A probation violation was built on an arrest affidavit, and a grand jury accused people of wrongdoing it never charged. Sometimes the court let it through, and sometimes it didn’t. So that’s the theme. The side door. Let’s get into it.

The first case is the one I opened with. Faustin against the State, Fourth District, out of Broward County, Judge Michael Lynch below. Judge Ciklin wrote it, with Judges Gross and May.

Faustin was convicted of two counts of vehicular homicide and one count of reckless driving causing property damage. Speed was the State’s road to recklessness, and Detective Michael Wiley gave the jury the speeds. The trial court treated that as investigative testimony. The Fourth District said the detective did more than describe an investigation. The detective offered an opinion built on a formula apparently learned in training, and lay opinion under section 90.701 can’t rest on special knowledge, skill, experience or training. So this was expert testimony, and the trial court never ran the gatekeeping analysis section 90.702 requires.

Then the court went further. Even assuming momentum analysis can be reliable when it’s done right, the State never showed it was done right here. The averaged internet weights ignored trim levels and body styles. The departure angles came off Google Maps, even though the detective conceded they have to be very accurate. The zero approach angle was an assumption. And the defense expert, Aaron Moss, an accredited reconstructionist trained in reading event data recorders, testified that the sketch wasn’t to scale, that the video was too unclear to support the straight-line assumption, that the data recorder indicated otherwise, and that the detective used the wrong trim level for the Corolla.

On appeal the State essentially conceded the error and argued it was harmless, because the cars’ event data recorders supplied speed information anyway. The court rejected that. The testimony was that the recorder data couldn’t be reliably interpreted without an independent reconstruction, so the detective’s numbers didn’t just repeat the recorders. They corroborated them, on the central question of whether Faustin drove recklessly. New trial. The court affirmed the separate probation revocation, but sent it back for resentencing on a corrected scoresheet.

Two things for your files. First, watch the moment a witness says “based on my training” or “the formula we’re taught.” That’s the moment lay testimony turns into expert testimony, and the objection belongs right there. Second, the harmless error argument failed because the record showed the recorder data couldn’t be reliably read without an independent reconstruction. That testimony is what kept the detective’s numbers from being cumulative, so make sure your record has it. The deep dive at the end is about exactly this question: when an officer’s conclusion is lay testimony, and when it’s an expert opinion that has to clear section 90.702. Hold that thought.

And one more footnote. Faustin also lost his six-person jury argument, under the Fourth District’s own precedent, with the same nod to Kian we talked about last week. If you’re trying a felony in front of six, keep objecting.

Quick pause, colleague to colleague. My firm handles DUI, criminal defense, and personal injury across Tampa Bay. If a case walks through your door that you’d rather send out, call or text 727-472-8096. I gladly accept referrals.

The next case is Velazquez against the State, First District, out of Alachua County, Judge William Davis below. Judge Treadwell wrote it, with Judges Roberts and Ray.

The probationer pleaded guilty to attempted sexual battery and got eighteen months in prison followed by two years of sex offender probation, with periodic polygraph exams and a treatment program as conditions. After a polygraph in November twenty twenty-four, the probation officer was concerned by some of the answers. The officer sat the probationer down with a legal pad and had the probationer answer questions in writing. Those written answers admitted seven violations: internet access, an unprescribed drug, alcohol to someone under twenty-one, leaving the county twice, driving on a suspended license, and curfew. The treatment provider did the same thing after reviewing the results, and got admissions too.

Section 948.30 says the results of these polygraphs shall not be used as evidence in court to prove a violation of community supervision. The defense argued that questioning built on the results was the same thing by another route. The First District disagreed, for two reasons. The statute bars the results, and the State never offered the results, only the admissions. And the bar applies to evidence in court. The statute itself requires that the results go to the probation officer and the treatment provider, which would make little sense if they couldn’t act on them. The court relied on an old Florida Supreme Court case holding that statements made right after a polygraph, as a direct result of it, aren’t excluded by the general rule against polygraph evidence.

And then a backstop. Even on the defense’s reading, the court would have affirmed, because failing to finish sex offender treatment was proven independently, and the record made clear the judge would have imposed the same eighteen-month extension on that violation alone.

The practice point here is client advice. A client on sex offender probation needs to understand that the polygraph room isn’t where the risk ends. The conversation afterward, on a legal pad, with the probation officer or the treatment provider, is evidence. And in any probation case, look for the independent violation before you spend the hearing on an evidentiary fight, because a win on the evidence may not change the sentence.

The next case is Marshall against the State, Fifth District, out of Volusia County, Judge Kathleen McNeilly below. Judge Kilbane wrote it, with Judges Lambert and Edwards. A probation revocation reversed, because nothing but hearsay proved it.

Marshall was on probation for a simple battery and a criminal mischief, with a no-contact condition for the victim. On June twenty-sixth, his probation officer asked whether he’d had contact with her, and he said no. Three days later he was arrested on new charges, including burglary with a battery and robbery, and the arrest affidavit named the same victim. The officer filed a violation affidavit for lying about contact and for having contact. Apart from his own denial, everything in it came from the arrest affidavit.

At the hearing, Marshall declined to discuss the new charges, on his lawyer’s advice, under the Fifth Amendment. Asked about contact with the victim, he said, “I do not recall.” The judge said that once he took the Fifth, the contact violation was proven, found his answers not credible, revoked his probation and gave him three hundred sixty-four days.

The Fifth District reversed on both conditions. On the truthfulness condition, there was no evidence of any kind that his June twenty-sixth denial was false, because the contact the State relied on was alleged to have happened three days later. On the no-contact condition, the officer had no personal knowledge, and Marshall denied or didn’t recall any contact. What was left were documents: a judgment and a probation order that only proved he was on probation, and a violation affidavit and report built entirely on the arrest affidavit. Hearsay is admissible at a revocation hearing, but it can’t be the only proof of a violation. The court noted the State can file a new affidavit if the probationary period hasn’t run out.

So when you see a violation affidavit that rests on a new arrest, count the live witnesses with personal knowledge. If the answer is zero, the State has a hearsay problem, whatever the judge thinks of your client’s answers on the stand.

The next case is short, and it’s about where a case gets filed. Noel against the State, Third District, out of the Miami-Dade County Court, Judge Jennifer Azar below. Judge Logue wrote it, with Judges Lobree and Bokor.

Noel cursed at a seventy-three-year-old woman near a bus stop, pulled a knife on her and on a man who intervened, and threatened to kill her. The arrest affidavit listed two felony aggravated assaults. The State filed an information charging one count of assault on a person sixty-five or older, citing the misdemeanor statutes, though the facts alleged in the information, threatening to kill her while holding a box cutter, could have supported a felony. He was tried in county court, convicted, and sentenced to three hundred sixty-four days. On appeal his only argument was that the information really charged a felony rather than a misdemeanor, so the county court had no jurisdiction.

Affirmed. Subject matter jurisdiction is determined from the face of the accusatory pleading. This information cited the misdemeanor statutes and labeled the count a first-degree misdemeanor, the judge told Noel it was a misdemeanor in the plea colloquy, and the jury instruction listed only misdemeanor elements. The fact that the information contained facts that could support a felony charge didn’t turn it into one. The charge is what the State chose to charge. Read the statute cited at the end of the count, and hold the State to it, in either direction.

The next case has been in the news, and I’m going to stay with the law. In re Leon County Grand Jury Presentment, Fall of twenty twenty-five. First District, out of Leon County, Judge Marsh below. Judge Neff wrote it, with Judge M.K. Thomas, and Judge Bilbrey concurred in part and in the result. The opinion’s first paragraph says it’s about the limits of a grand jury’s power.

In twenty twenty-four, the State resolved allegations that Centene had overcharged Florida Medicaid, before any lawsuit was filed. Of the roughly sixty-seven million dollars, the State received about fifty-seven million, and ten million went as a donation to the Hope Florida Foundation, which then gave grants to two private nonprofits that donated to a political committee. A Leon County grand jury investigated and returned no indictment. Instead it issued a hundred-sixteen-page presentment that called the ten million misappropriated as part of a sophisticated scheme, named the people it held responsible, and conceded there wasn’t enough evidence to charge anyone. The State Attorney then emailed it to at least forty-nine recipients before the people it named had their chance to challenge it. The circuit court expunged about a hundred twelve of the hundred sixteen pages, but not the whole thing.

The First District ordered the whole thing expunged, on two independent grounds. First, a grand jury that finds the law violated has a duty to indict, and if it doesn’t find a crime, it has no further business accusing anyone. That rule comes from the Florida Supreme Court’s Brautigam decision in nineteen fifty-seven, which the court quoted: a presentment accuses, but furnishes no forum for denial. And the statutes the grand jury relied on reach court settlements and money received by the State, while this settlement came before any lawsuit and the ten million went directly to the foundation. And in a footnote on the grand jury’s appeal to the spirit of those statutes, the court called a spirit summoned apart from the text, in its words, hermeneutical necromancy. Second, under section 905.28, a presentment without an indictment is confidential until each person it impugns gets a copy and fifteen days to move to repress or expunge it. The State’s own early distribution broke that, and when the breach is the State’s doing, expungement follows. Judge Bilbrey would have rested on that disclosure ground alone.

For practice: if a client is named in a no-bill presentment, section 905.28 gives you fifteen days after the copy is furnished to move to repress or expunge the improper and unlawful parts, and Brautigam is the case. And remember the rule in its short form. A grand jury indicts or it exonerates.

One more on the criminal side, and it’s about stand your ground. Smith against the State, First District. A defendant denied pretrial immunity under section 776.032 petitioned for a writ of prohibition. Denied, in one paragraph: on prohibition, the defendant has to show clearly and conclusively, without a good faith dispute, that the force was justified. Judge Winokur concurred to explain why that standard is so hard. The Florida Supreme Court has said prohibition is the remedy, and last year it declined to create a right to an interlocutory appeal from an immunity denial, in part because the public defenders’ association opposed the change. On prohibition, as the concurrence notes from an earlier First District opinion, the trial court’s resolution of conflicting evidence is conclusive. And Judge Winokur wrote that the result might have been different on an interlocutory appeal. So treat the immunity hearing as the only full review you’re likely to get, and build the record that way.

Now the injury side, and this week it’s a hard one for anybody suing the State or its contractors.

Two companion opinions out of the First District, both arising from the same death, both out of Alachua County with Judge Gloria Walker below, both written by Judge Bilbrey with Judges M.K. Thomas and Long. Florida Department of Children and Families against Gainey, and Crandall Medical Consulting against Gainey.

Nazariah Brown was a young adult man with complex medical needs. When his family lost the lease on their home in twenty twenty-two, DCF placed him, with his mother’s consent and on an emergency basis, in the only facility it could find that would take him. A few days later the Agency for Persons with Disabilities took over his services, and assigned a support coordination company, Crandall Medical, to plan and monitor his care. DCF’s adult protective services unit received two abuse hotline reports while he was there and closed both as unsubstantiated. He died while the lawsuit was pending, and his uncle carried it on as personal representative. In both cases the trial court denied summary judgment because, in its words, there were too many disputed facts.

The First District reversed both, with instructions to enter judgment for the defendants. Sovereign immunity is a threshold legal question for the court, the opinion says, not a fact question for the jury. As to DCF, the estate conceded the negligent training and supervision claims were barred. Investigating hotline reports and placing a vulnerable adult are discretionary, planning-level functions, and the court found no clear statutory waiver for claims under the adult protective services chapter. To the extent the placement created a special relationship, the placement decision itself was immune.

As to the contractor, the question was whether Crandall Medical and its coordinator were agents of the State under section 768.28(9)(a), which bars naming an agent personally absent bad faith, malicious purpose, or wanton and willful disregard. The test is the State’s right to control. The defense put in depositions showing the agency assigned the cases, the coordinator used the agency’s forms and templates, and the work was reported through a platform the agency monitored. The estate answered with a single contract clause saying the coordinator was an independent provider and not an agent of the agency. The court said that clause is something to consider, but it isn’t dispositive, and under the summary judgment rule, facts the other side doesn’t properly address can be treated as undisputed. The amended complaint also didn’t allege bad faith or wanton conduct. And a footnote matters for future cases: because Crandall is an LLC, and an LLC isn’t a corporation under Florida law, the cases that give corporations acting as State instrumentalities only limited immunity didn’t apply to it.

Two practice points. If you’re suing a State contractor, the contract’s “independent provider” clause won’t carry you. You need record evidence that disputes control, and you need it in your response, because under the current summary judgment rule a fact you leave unaddressed can be treated as undisputed. And if the facts support bad faith or wanton and willful disregard, that’s the statute’s own exception, and it has to be pleaded.

Linares against Dezerland Park, Third District, out of Miami-Dade. A citation affirmance, so I’m reading the citations, but they only fit one shape. The court cited the Florida Supreme Court’s Sanislo decision, that a release of any and all claims covers negligence even when the word negligence isn’t in it, and a Fifth District case from last year where a waiver covered a slip and fall in the bathroom, even though bathroom use wasn’t one of the listed activities. So a premises claim ended on a signed waiver. If you take a case like this, get the waiver at intake, before you evaluate anything else.

And one civil rule change, with a date to calendar. Effective January first, twenty twenty-seven, the Florida Supreme Court amended rule 1.280 to track the federal initial disclosure rule more closely. You still have to give a computation of each category of damages, other than noneconomic damages. But you no longer have to hand over copies of the documents behind the computation with the disclosure. Instead you have to make them available for inspection and copying, as under rule 1.350. Update your disclosure templates before January.

One more thing before I let you go, because ten minutes of holdings is a digest, and this show doesn’t do digests. Every Friday this segment takes the one doctrine the week actually turned on and gets into the deep end. This week it’s the officer’s opinion: when a police witness’s conclusion is lay testimony, when it becomes expert testimony, and why the difference decides crash cases.

Start with the text. Section 90.701 says a witness who isn’t testifying as an expert may give an opinion about what the witness perceived, but only when two things are true: the witness can’t readily communicate what they perceived without the opinion, and the opinion doesn’t require a special knowledge, skill, experience, or training. The Fourth District has described the classic subjects of lay opinion since nineteen ninety-four, in Fino against Nodine, as things like distance, time, size, weight, form and identity, things the witness actually perceived. Section 90.702 is the other side: an expert opinion has to rest on sufficient facts or data, has to be the product of reliable principles and methods, and the witness has to apply those methods reliably to the facts of the case. The Florida Supreme Court adopted that Daubert language as a rule of evidence in May of twenty nineteen.

Now the case that built the road Faustin drove on. Kemp against the State, Fourth District, twenty nineteen, out of Palm Beach County. A car came down an I-95 exit ramp, ran the red light and hit another car at about a hundred twenty-eight miles an hour, according to the State’s expert. Five young people in the other car died. The defense was that the driver fainted at the wheel. To prove control, the State called a Highway Patrol corporal who looked at the crush damage on the other car, said it arced downward, and concluded the defendant’s front end was dipping, which meant braking, which meant he was conscious. The Fourth District reversed. Nothing showed that eyeballing the shape of crash damage had been tested, peer reviewed, given an error rate or generally accepted. The court said the corporal’s repeated invocation of the magic words “training and experience” was insufficient, and that there was too great an analytical gap between the observation and the opinion. Judge Ciklin wrote a special concurrence in Kemp. Seven years later he wrote Faustin. And Judge May, who dissented in Kemp and would have let the corporal’s opinion in, joined Faustin without a word of disagreement.

Then Stukins, Fourth District, August of last year, out of Indian River County. A shooting during a drug deal, and the defense was that the gun went off by accident. The State said on the record that the lead detective wasn’t being presented as an expert, and the detective told the jury the detective didn’t think it was accidental, explaining that in the detective’s experience it’s very uncommon for someone to just accidentally pull a trigger, and walking through the angle of the shot. The detective hadn’t seen the shooting and built the opinion from other people’s work: photographs, the autopsy, interviews by other deputies. Reversed. And the court explained why the badge makes it worse, quoting the Florida Supreme Court: a police officer is generally regarded by the jury as disinterested and objective and therefore highly credible, so the danger of improperly influencing the jury becomes particularly grave. The standard instruction about law enforcement witnesses didn’t cure it.

And the limit, which DUI lawyers need to know. Olano Sanchez against the State, Third District, September of last year, a DUI out of Miami-Dade. The Intoxilyzer agency inspector, listed as a regular witness and not designated as an expert, testified over two days about how the machine works, infrared light and interference detection. The defense said that was undisclosed expert testimony. The Third District affirmed: the inspector’s knowledge came from years of personal experience maintaining and inspecting that machine, it wasn’t gathered for litigation, and the inspector wasn’t evaluating someone else’s work. The court quoted the First District for the governing principle: a party’s label for a witness matters little, and the substance of the testimony drives the analysis.

Put those together and the line isn’t the badge, and it isn’t the label on the witness list. It’s the source and the method. What the officer saw is lay testimony. What the officer knows from doing the officer’s own job, like the inspector maintaining the machine, can stay fact testimony. A calculation run on a formula learned in training, or a conclusion assembled from other people’s work, is expert opinion, and it has to be disclosed and pass section 90.702.

So here’s the working playbook.

First, make the officer show the math before trial. In deposition, get every input and where it came from. In Faustin, that’s where the internet weights, the Google Maps angles, the assumed approach angle and the missing sketch came out. Ask for the field sketch and the worksheets before the deposition, not after.

Second, read the witness list for the expert designation. Olano Sanchez collects the cases holding that listing someone as a Category A witness isn’t designating them as an expert. If the State calls the officer a lay witness, hold the testimony to perception. If it calls the officer an expert, ask for the section 90.702 hearing before the jury hears a number.

Third, object at the moment the testimony turns. When you hear “based on my training,” “a formula we’re taught,” or “in my experience,” ask to take it up outside the jury’s presence. The ruling to prevent is the one the Faustin trial judge made: that a calculation is just part of the investigation.

Fourth, get your own reconstructionist and the event data recorder download. In Faustin, the defense expert took apart the detective’s inputs, and the testimony that the recorder data couldn’t be read reliably without a reconstruction is what defeated the harmless error argument.

Fifth, tie the opinion to the issue the case turned on, in the motion for new trial and on appeal. In Kemp it was braking, and therefore consciousness. In Stukins it was accident versus intent. In Faustin it was speed, and therefore recklessness. Under DiGuilio, the State carries the burden to show the error didn’t contribute to the verdict, and an officer’s opinion on the central question is hard to call harmless.

And the limit, stated plainly. This isn’t a tool against every officer who knows things. Olano Sanchez shows a witness explaining their own job stays a fact witness, at least in the Third District, and some judges will put a given opinion on the lay side of the line. I’m telling you where the line is as these courts drew it, not that every trial judge will see it the same way.

If you want the set, Faustin, Kemp, Stukins and Olano Sanchez, plus a one-page lay-or-expert objection worksheet built on those five steps, email me and I’ll send them over.

So that’s the week. Two vehicular homicide convictions reversed because a detective’s formula came in as investigation. Polygraph-prompted admissions that came in because the results themselves stayed out. A probation revocation that rested on nothing but an arrest affidavit, and a misdemeanor information that stayed a misdemeanor no matter what the facts could have supported. A grand jury report expunged because it accused without charging, and a stand your ground petition denied under the prohibition standard. On the injury side, sovereign immunity for an agency and its contractor decided as a matter of law, a waiver that ended a premises case, and a disclosure rule to calendar for January.

The pattern, if you want one: in most of these, evidence or an accusation came in some way other than the usual route, and the outcome turned on what the rule actually says about that route. When the State tries it, make it name the rule on the record.

One caveat, colleague to colleague. These are summaries, most of these decisions aren’t final until the rehearing window runs, and nothing in this episode is legal advice. Pull the opinion before you rely on a word of it.

If you want any of this week’s opinions, or the lay-or-expert worksheet from the deep dive, email me at Rory at the Safir lawyer dot com and I’ll send them over.

Take care of yourself, and take care of your clients.