Leahy v. Eger

DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT

JESSE LEAHY,

Appellant,

v.

LARRY EGER, in his capacity as public
defender for the Twelfth Judicial Circuit of Florida,

Appellee.

No. 2D2024-2957

June 19, 2026

Appeal from the Circuit Court for Sarasota County; Hunter W. Carroll,
Judge.

Jesse Leahy, pro se.

James Uthmeier, Attorney General, Tallahassee, and Jessica
Schwieterman, Assistant Attorney General, Tampa, for Appellee.

NORTHCUTT, Judge.

The circuit court awarded a final summary judgment in favor of
Larry Eger, in his capacity as the public defender for the Twelfth Circuit,
in Jesse Leahy's legal malpractice suit. We reverse in part.
Leahy's suit arose from his counsel's representation of him in one
of three prosecutions—in 2014, 2015, and 2016—for failing to register as
a sexual offender in Florida. See § 943.0435(2), (9), Fla. Stat. (2015).
The asserted theory underlying the charge in each case was that Leahy
was required to register as a sexual offender in Florida because in 1994
he had been convicted of a misdemeanor sexual offense in
Massachusetts that obligated him to register in that state. See
§ 943.0435(1)(a)1.b.
The 2014 charge was nolle prossed at a hearing in which the State
acknowledged that Leahy's federal probation officer had advised him that
he was not required to register in Florida based on the Massachusetts
misdemeanor conviction. But the prosecutor asked the court to inform
Leahy that he needed to register from then on. The court did so,
although Leahy protested that he thought this was incorrect because he
had never been required to register before.
Leahy thereafter persisted in his failure to register, and on
September 21, 2015, he was arrested again. He remained jailed until
January 27, 2016, when, on the advice of his assistant public defender,
he entered a negotiated plea of no contest to the charge. He was
adjudicated guilty, sentenced to time served, and released.
In the 2016 case, Leahy was arrested on September 27, 2016, for
failing to register and was released on bond. He then waived
representation by the public defender's office and asked to represent
himself. On November 7, 2016, his bond was revoked based on a
separate, unrelated aggravated battery arrest. At a hearing on November
29, 2016, Leahy requested counsel in the failure to register case, and the
court appointed the public defender's office. But the next day the court
granted the public defender's motion to withdraw and appointed conflict
counsel to represent Leahy instead.

2
In April 2017, Leahy filed a motion for postconviction relief under
Florida Rule of Criminal Procedure 3.850 seeking to set aside his plea
and conviction in the 2015 case. The motion alleged that Leahy's plea to
the 2015 charge was involuntary and that his counsel was ineffective.
Leahy claimed that he had not been required to register as a sex offender
under Massachusetts law and that therefore he was not required to
register in Florida based on the Massachusetts conviction. At an April
2018 hearing on the postconviction motion, the State conceded that
Leahy's assertion was correct. Accordingly, the postconviction court
granted Leahy's rule 3.850 motion and vacated his judgment and
sentence on the 2015 charge, and the State then nolle prossed it.
After prevailing in the postconviction court, Leahy filed the instant
civil suit against Larry Eger as the public defender for the Twelfth
Judicial Circuit. He alleged that his assigned assistant public defender
committed professional negligence in the 2015 case and that Eger
negligently supervised the assistant. The circuit court dismissed the
negligent supervision claim on its face.1 On the professional negligence
claim, the court eventually granted summary judgment for the defense,
and Leahy appealed.
We review summary judgments de novo. Allison v. Grand at Olde
Carrollwood Condo. Ass'n, 369 So. 3d 1200, 1204 (Fla. 2d DCA 2023).
As we stated recently in CNJ Realty Associates, LLC v. Yankiv, 399 So. 3d
1240, 1244 (Fla. 2d DCA 2025):
Summary judgment should only be granted "if the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law." Fla. R. Civ. P. 1.510(a). Thus the movant has
the initial burden "to establish the absence of any genuinely

1 Leahy does not challenge this ruling on appeal, so we do not

address the negligent supervision claim further.
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disputed material fact," and " '[i]f the movant does so, then
the burden shifts to the [nonmoving] party to demonstrate
that there are genuine factual disputes that preclude
judgment as a matter of law.' " Barber [v. Manatee Mem'l
Hosp.], 388 So. 3d [279,] 285 [(Fla. 2d DCA 2024)] (second
alteration in original) (first citing Fla. R. Civ. P. 1.510(a); and
then quoting Brevard County v. Waters Mark Dev. Enters., 350
So. 3d 395, 398 (Fla. 5th DCA 2022)).
When, as in this case, the movant for summary judgment is not the
party who would bear the burden of proof at trial, it may satisfy its
burden by either of two methods. See Coury v. City of Tampa, 397 So. 3d
805, 810 (Fla. 2d DCA 2024) (quoting In re Amends. to Fla. Rule Civ. Proc.
1.510, 317 So. 3d 72, 75 (Fla. 2021)). The first is to affirmatively present
summary judgment evidence that disproves the nonmovant's claim. Id.
(citing In re Amends. to Fla. Rule Civ. Proc. 1.510, 317 So. 3d at 75). The
second is to show that the nonmovant has no evidence to prove their
claim at trial. Id. (citing In re Amends. to Fla. Rule Civ. Proc. 1.510, 317
So. 3d at 75).
The public defender failed to meet its burden under either
approach. Eger's motion argued that Leahy's malpractice claim required
proof that his counsel's actions proximately caused his pretrial detention
in the 2015 case.2 The public defender produced the transcript from the
2014 case in which the judge advised Leahy that henceforth he needed to
register as a sex offender in Florida based on the Massachusetts
conviction. Thus, Eger asserted, "[Leahy's] own behavior and failure to

2 A claim for legal malpractice in the defense of a criminal case has

five elements, one of which is that the attorney's negligence was the
proximate cause of the client's loss. Cira v. Dillinger, 903 So. 2d 367,
370-71 (Fla. 2d DCA 2005) (citing Steele v. Kehoe, 747 So. 2d 931, 933
(Fla. 1999)).
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follow the Court's instruction led to his incarceration and his alleged
damages[.]"
That submission was wholly insufficient because it undertook to
refute a claim that Leahy never made. Leahy did not contend that his
counsel's negligence caused his 2015 arrest. Rather, his suit complained
that counsel's failure to investigate the validity of the 2015 charge had
needlessly prolonged his detention.3 Of course, Leahy's own behavior
had nothing to do with that. To the contrary, Leahy alleged that at their
first meeting he urged his attorney to investigate and confirm that he was
not required to register in Massachusetts and that therefore he had not
violated the Florida registration statute. See Holt v. Rowell, 798 So. 2d
767, 770 (Fla. 2d DCA 2001) (affirming jury finding of liability for
malpractice where accused charged with being a felon in possession of a
firearm was not released from jail for ten days after he gave his assistant
public defender a document showing that his civil rights had been
restored following his felony conviction), approved in part, quashed in
part on other grounds sub nom, Rowell v. Holt, 850 So. 2d 474 (Fla.
2003).4

3 Leahy argued that his counsel's negligence in the 2015 case had

caused him to suffer over twenty-three months of wrongful incarceration
in the 2015 and 2016 cases combined. However, he alleged negligent
representation only in the 2015 case. Further, because the public
defender's office was excused the day after its appointment in the 2016
case—when Leahy's pretrial release had already been revoked due to his
unrelated aggravated battery charge—any undue detention in that case
could not have been attributable to a failing on the public defender's
part. Thus, this appeal involves only Leahy's detention between his 2015
arrest and his release in that case, or just over four months.
4 Interestingly, the transcript relied upon by the public defender in

support of his motion for summary judgment actually redounded against
his position. It reflected that another attorney in his office represented
Leahy at that hearing, was present when the State acknowledged that
5
Because the public defender's motion failed to address the factual
and legal bases of Leahy's lawsuit, the public defender did not show that
there was no genuine issue of material fact or that he was entitled
judgment as a matter of law. See Fla. R. Civ. P. 1.510(a); Yankiv, 399 So.
3d at 1244. Consequently, no burden to demonstrate facts in opposition
to the motion ever shifted to Leahy.
Rather than deny the public defender's motion, however, the circuit
court granted it under a theory that had not been advanced. 5 The court
ruled that Leahy was not harmed by his counsel's advice to plead no
contest because it resulted in Leahy's release from jail and because the
resulting conviction was ultimately set aside. The court's order granted
the public defender's motion for summary judgment "to the extent the
Court concludes that Mr. Leahy was not legally damaged by the alleged
negligent advice in the 2015 case." Thus, as the public defender had
done in his motion for summary judgment, the court's ruling
misconstrued Leahy's claim.
Leahy moved for rehearing. He pointed out that his malpractice
suit was premised not on misadvice, but on counsel's negligent failure to
investigate the basis of the charge, which unnecessarily extended his loss
of liberty.
When ruling on the rehearing motion, the court acknowledged this
theory of Leahy's case, but it denied the motion and reaffirmed the

Leahy's probation officer had advised him that he need not register, and
heard Leahy inform the court that he had never had to register following
his 1994 conviction in Massachusetts.
5 Florida Rule of Civil Procedure 1.510 allows a court to grant a

motion for summary judgment on grounds not raised by a party, but
only after giving notice and a reasonable time to respond. Fla. R. Civ. P.
1.510(f)(2). Leahy has not complained of the court's failure to give notice
of its intention to do so in this case.
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summary judgment, observing that "in response to the public defender's
summary judgment motion, [Leahy] presented no evidence that a 'proper
investigation' would have resulted in a release earlier than the 4-month
time frame Mr. Leahy [actually] was in jail on this charge before pleading
and being released." Thus, "[e]ven assuming the assistant public
defender were negligent in the investigation of the Massachusetts
conviction issue, Mr. Leahy has presented no evidence to survive a
directed verdict that his release from jail would have been any sooner
than it was."
This was error because it improperly placed on Leahy, the
nonmovant, the burden to disprove the movant's entitlement to judgment
even though the movant had not met his initial burden to demonstrate
that entitlement, as mandated by rule 1.510(a). See Yankiv, 399 So. 3d
at 1244.
The circuit court rendered a final judgment that subsumed the
erroneous order granting the public defender's motion for summary
judgment regarding the 2015 case and an order granting a supplemental
motion for summary judgment directed to the 2016 case. We reverse
insofar as the court awarded the public defender a summary judgment
on Leahy's malpractice claim premised on his prolonged pretrial
detention in the 2015 criminal case. We affirm in all other respects.
Affirmed in part, reversed in part, and remanded for further
proceedings.

BLACK and LABRIT, JJ., Concur.

Opinion subject to revision prior to official publication.

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