Wednesday, November 26, 2008

November 21, 2008

Brown, 33 FLW 2632, 4th DCA, error to grant def's motion to prohibit the state form using uncounseled prior felony for enhancement of current DUI charge to felony where the def did not actually receive a sentence of imprisonment in prior case of face sentencing exceeding 6 months in that case-died did not allege his prior DUI included an accident-received in order to show he was subject to a possibility of more than 6 months in the prior case-fact he spent 48 hours in jail prior to his area and after the arrest does not count to imprisonment

Williams, 33 FLW 2634, 4th DCA, handcuffing a def during a temporary detention amounted to unlawful seizure, stop was for speeding, driver of car was in custody before the def was handcuffed, so he posed no threat and pat-down found no weapons preceded the use of handcuffs-def's attempted disposal of marijuana and discovery of meth after the unlawful seizure was fruit of the poisonous tree

Griggs, 33 FLW 2648, 5th DCA, speedy trial-def was arrested when removed from scene of traffic stop and transported to police facility for purpose of ofc booking def or having him to agree to provide substantial assistance to police where it was quite clear to def if he did not accede to the investigator's offer "to talk about it" he would not have been released, agreement to cooperate without more does not act as waiver of speedy trial time-error to deny motion for 175 day discharge

S.E.B, 33 FLW 2661, 2nd DCA, error to deny to dismiss drug charges where evidence was insufficient to prove constructive possession of illegal contraband found beneath center console of vehicle in which juvenile was front-seat passenger and which was registered to the individual not in the car

The Law Offices of Roger P. Foley, P.A.

Friday, November 21, 2008

November 14, 2008

Jean-Marie, 33 FLW 2592, Argument: failure to call witness - no abuse of discretion in prohibiting defense counsel from pointing out in closing argument that state failed to call as a witness the detective who had taken def's statement and investigated the crime where there was no explanation how the detective, who was not a witness to the crime, could have spoken about any relevant issue. Fact that state used portion of statement defendant investigated the crime does not demonstrate that the detective could elucidate anything

Andl, 33 FLW 2611, 5th DCA, error to revoke probation for failure to promptly and truthfully answer inquiries of probation where lie was willful but not so substantial as to warrant a finding of violation of probation. The probationer had mental health issues and was making reasonable efforts to comply with rules of probation. The lie did not give rise to material violation or warrant a 3 year prison sentence, even though no justification existed for lying to p.o. and unnecessary expenditure of time and effort (DECISION RESTRICTED TO FACTS OF CASE)

G.T.J., 33 FLW 2616, 2nd DCA, Self-defense. State failed to rebut juvenile's prima facie case of self-defense, failed to carry burden to prove delinquent beyond a reasonable doubt. Juvenile provided unrebutted testimony that he swung a rod at the victim only after they began chasing him with one of the men brandishing a knife and that he swung his belt at the two of them only after one of them began to choke him. Evidence presented by the state did not rebut the juvenile's testimony regarding aggressive, violent conduct of victims, and neither victim denied that the juvenile had been threatened with the knife and choked.

The Law Offices of Roger P. Foley, P.A.

Thursday, November 13, 2008

November 7, 2008

Lynch, 33 FLW 880, Fla. Marital communication privilege, 90.504, only applies to communications originally intended to be confidential and not apply to a murder-suicide letter from a def to his wife which included the def's request that the wife disclose all the info to the murder's victim family. Privilege did not apply to 2 telephone conversations made by def to his wife during the commission of the charged offenses where the phone conversations were done in the presence of third parties.

Bartlett, 33 FLW 2521, 1st DCA. Error to allow primary detective to testify before he received a warrant for def's arrest for murder, he had ruled out self-defense-error for ofc to give lay opinion not harmless where could not show no reasonable possibility that the testimony affected the verdict

Rimes 33 FLW 2562, 5th DCA, error to deny challenge for cause who had a close friend who worked as a deputy sheriff and who stated he would tend to believe a police ofc over a lay witness-after brought back into the courtroom alone and asked leading questions was insufficient to erase reasonable doubt as to previous questions

McCain, 33 FLW 2569, 2nd DCA, Trafficking in narcotics, error to admit evidence that officer discovered baggie containing meth residue in def pocket after def arrested where, other than type of drug involved, there were no similarities between def's mere personal possession of baggie with meth residue and charges that def trafficked in large quantities of the substance and only relevance was to show def's propensity to commit drug crimes-not harmless where def stated he was in the car at the the time of the drug deal moved into the driver's seat to cause a quick departure and def unwittingly supplied vitamins to a friend that was used to "cut" and mix the drugs and was not aware of the deal done by a third party other than the def and a co-def.

The Law Office of Roger P. Foley, P.A.

Tuesday, November 11, 2008

October 30, 2008

Jardines, 33 FLW 2455, 3rd DCA, where police received a tip as to criminal activity and observed other indications of criminal activity, officer had right to walk to front door of residence, and officer and dog were lawfully present at the front door of the residence, affidavit alleging that drug detection dog alerted to odor of marijuana inside residence was probable cause for search warrant-conflict certified, Raab 920 So. 2d 1175(4th DCA 2006)

DiPietro, 33 FLW 2470, 4th DCA, Third DUI, circuit court applied the correct law in concluding the defendant's two prior out-of-state convictions for driving while impaired qualified as prior offenses for purposes of imposing enhanced penalties for third alcohol-related offense, MacAdam v. State out of state DWAI offenses were sufficiently similar such that they could be used as prior convictions for enhanced sentencing.

Petion, 33 FLW 2505, 2nd DCA, consent to search vehicle. The stop of vehicle for inoperable tag light and illegal window tinting was illegal, where def initially gave his voluntary consent to search of the vehicle, including containers and compartments within the vehicle, def did not withdraw his consent by nonverbal communication when he failed to assist officers in opening a secret compartment inside the vehicle and simply shrugged when the officer explained that he would need to use tools to force the compartment open again.

Johnson, 33 FLW 2515, 1st DCA, defendant, who was passenger in the vehicle, which was stopped for failure to have the vehicle tag light and gave consent to the search of his person, was illegally detained when officer asked her to "sit tight" as def opened the door to exit the vehicle-illegal detention of def after he had given consent to search of his person, but before police conducted the search, created a taint which could only be overcome by a sufficient break in the chain of illegality, no evidence a break occurred search of def was non-consensual and evidence improperly seized.

The Law Office of Roger P. Foley, PA