Thursday, December 31, 2009

Law Updates for December 25, 2009

Regalado, 34 FLW 1571, 4th DCA, Because it is legal to carry a concealed weapon in Florida if one has a permit to do so, a Terry stop was not allowed as there was no allegation of criminal conduct. An anonymous tip that "some guy over there was flashing his gun to a couple of friends" was not sufficient to justify a Terry stop.

Hazuri, 34 FLW 1590. 3rd DCA, Read back of testimony, in response to jury's request for trial transcripts. Trial court did not abuse discretion in advising jury it could not be given copies of the transcripts and must, therefore, rely on their own recollection of the testimony, and declining to advise jury it could receive a "read back." Trial court had no duty to inform jurors that a read back may be available on request. Judge's answer was fair and accurate, see dissent Avila, 781 So. 2d 413, 415, 4th DCA 2001

Peterson, 34 FLW 2607, 2nd DCA, Where the def's theory of the defense was that he had abandoned the stolen property before he used force to escape the scene and the sales clerk was the only witness who contradicted the defense's theory that he transferred the stolen items from beneath his clothing to a shopping basket before shoving his way out of the store, the trial court abused discretion by excluding evidence that the sales clerk no longer worked at the store because she was suspected of stealing and the clerk wished to regain her job, and limiting to defense to only that the clerk no longer worked at the store. Trial court abused its discretion in refusing a special jury instruction that jury was required to find the def guilty of robbery if the evidence established that the property was abandoned prior to the use of force, and standard instruction did not explain the theory of the defense, and it was a correct statement of the law and was not misleading.

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

Friday, December 11, 2009

Law Updates for December 4, 2009

B.O., 34 FLW 2442, 4th DCA, Juveniles. Where charging document alleged only that the juvenile committed two counts of grand theft of a firearm, but did not allege in that in stealing the firearms juvenile possessed or used a firearm, it was error to increase the standard penalty to 15 days of secured detention pursuant to 790.22(9). Statute is not applicable where petition neither cited the statute nor alleged that, in committing the theft, the juvenile used or possessed a firearm.

Carter, 34 FLW 2444, pg. 2446-7, 4th DCA, Language about suppressing photo lineups, found for the state, may want to save in files.

Carter, 34 FLW 2466, search and seizure - prescription records. Error to grant motion to suppress records obtained from a pharmacy by an investigating law enforcement officer. 893.07(4) requires pharmacies to make controlled substance records available to law enforcement and does not require the pharmacies to notify the patient or withhold such records until a warrant is presented. Privacy Provision of Florida Constitution does not support suppression of records in this case. Regulation and control of medical records is a vital governmental interest and substantially outweighs privacy interests.

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

Thursday, December 3, 2009

Law Updates for November 27, 2009

Abbey, 34 FLW 2372, 4th DCA, Probable cause for issuance of search warrant for "black box" from def's vehicle. Affidavit showing excessive speed in residential area sufficient to evince a "reckless disregard for human life or the safety of persons exposed to speed" as required to establish vehicular homicide. Error to grant motion to suppress

Pierre, 34 FLW 2374, 4th DCA, First degree felony murder. Statement of defendant, "I'm not saying anymore," followed by over a minute silence, and subsequent questioning violated Def's Miranda rights. Accusatory statement, "You're Turtle," made by detective upon reentering the room amounted to questioning where detective had already told the defendant he was taking def's picture to show witnesses who could id participants in robbery-murder and had already asked the def at the beginning of the interview if he was Turtle. Fact that this detective did not know def had invoked his right to silence does not avoid Miranda. Error to deny to suppress statement.

Bowers, 34 FLW 2384, 2nd DCA, Fellow officer rule. The testimony of ofc who investigated the DUI regarding what the ofc who stopped him told him about the def's driving was hearsay and not admissible to prove that the stopping officer witnessed the def violate a traffic law. The fact that DUI investigator was called to the scene after the stop was completed did not make him a fellow officer for purposes of determining if there was probably cause to support the traffic stop. Conflict with Ferrer, 785 So. 2d 709(4th DCA 2001)

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

Monday, November 30, 2009

Law Updates for November 20, 2009

Dawson, 34 FLW 2294, 4th DCA, Richardson violation. Trial court erred in failing to conduct a complete hearing and failing to consider lesser sanctions, such as a continuance or a mistrial, before excluding defense rebuttal witness, where testimony was relevant and trial court found state was prejudiced because it was not given an opportunity to depose the witness and subpoena rebuttal witness or possibility of taking depo of defense witness before testifying. Application of three part test insufficient for a discovery violation as the court must consider a fourth factor and explore whether another reasonable alternative can be employed to overcome possible prejudice. Error not harmless in reversing first degree murder conviction where reasonable possibility that exclusion of witness contributed to the conviction.

Thompson, 34 FLW 2299, 4th DCA. Credit for time served - probation revocation. Def originally sentenced to concurrent terms for 2 counts, and trial court imposed consecutive sentences for those two counts after VOP. Def was entitled to credit for time served against both of the consecutive sentences. (see Rabedeau, 2 3rd 191(Fl. 2009))

L.C., 34 FLW 2306, 3rd DCA, search and seizure. It was unreasonable for police officer to perform a weapons search without having performed a pat-down of a 15 year old truant before putting her in the back of the police car to execute the ofc's statutory obligation to transport her to school where the officer had no basis to suspect the student of possessing any weapons. Absence of reasonable suspicion not justified in search just because ofc felt unsafe about his safety, nor could he do based on blanket department policy.

Ortiz, 34 FLW 2311, 5th DCA, (En banc) Reversed lower panel opinion now in favor the trial judge's finding of exigent circumstances (medical emergency exception) for warrant less search of home - for the state, distinguishes Riggs, 918 So. 2d 274(Fl. 2005).

Acevedo, 34 FLW 2322, 5th DCA, Miranda warning given to def was defective where def was told that he had a right to counsel but was not told he had a right to counsel both before being interrogated and during interrogation. Not harmless. Reasonable possibility it affected the verdict - State v. Powell, 998 So 2d 531(Fl. 2008) cert granted 129 S. Ct 2827(6-22-09)

Florida v. Simmons, 34 FLW 2352, 1st DCA, Trial court had the authority to dismiss the current charges against the def as a remedy for the state's refusal to comply with a settlement agreement under which it was agreed by the state, the def, and the victim of the crimes that def would be admitted to PTI and charge would be dismissed and victim would be paid restitution. (victim refused to sign the victim consent form after he was compensated)

Bailey, 34 FLW 2359, 1st DCA, Audio - recorded statement - Def statement to interrogating officers, not during Miranda warnings but during the statement, "Man, I don't rally want to talk about that", was not an unequivocal revocation of the prior waiver of the right to remain silent. Trial court id not err in admitting the audio-recorded statement

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

Wednesday, November 11, 2009

Law Updates for November 6, 2009

Santiago, 34 FLW 2206, 4th DCA - Court erred when it failed to permit the def to reopen his case so that false testimony presented by the state to demean the credentials of defense expert could be countered and corrected prior to the jury beginning its deliberations.

Brown, 34 FLW 2209, 4th DCA - Trial court used the 1.5 multiplier for presence of child in domestic case even when information failed to set forth the facts or statutory authority for such sentence enhancement.

Dunlap, 34 FLW 2215, 4th DCA - No error to deny mistrial based solely on one comment made by prosecutor during opening statement: discussion of jury's obligation to determine credibility of witnesses testimony, and single use of word "truth" in that context did not suggest that the jurors determination of who was telling the truth should be the sole basis of the jury's verdict.

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

Wednesday, November 4, 2009

Law Updates for October 30, 2009

Ransone, 34 FLW 2170, 4th DCA, Credit for time served in foreign jail. Def who was arrested in Miami Dade for numerous charges was not entitled to credit for time served in Miami from date of his arrest for an unrelated Broward VCC warrant where sentence received in Broward was consecutive and not concurrent with sentences imposed in Dade. Held on multiple offenses only entitled to credit for time served from the date of arrest in foreign county where concurrent sentences are imposed or foreign county warrant is the sole basis for the incarceration in the other county jail.

Arias, 34 FLW 2175, 3rd DCA, Self-defense Trial court erred in excluding evidence from the M.E. that victim had alcohol and cocaine in his blood at the time of the shooting. State opened the door to this evidence by attacking on cross-exam def's lay observation of victim's intoxication on theory that the def was not a qualified toxicologist, where def took the stand and testified that victim was behaving erratically, threatened to kill him, and appeared to be intoxicated and under influence of cocaine. Toxicology results were admissible under relevant evidence and not under theory of admissibility of character evidence. New Trial.

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

Friday, October 30, 2009

Law Updates for October 23, 2009

Conner, 34 FLW 2089, 2nd DCA, kidnapping - Def's act of attacking the 13 year old victim, knocking her to the ground, and choking her for a few seconds not kidnapping but false imprisonment. Def's actions had no significance independent of the attempted murder of the victim and amounted to a momentary restraint.

Parker, 34 FLW 2108, 3rd DCA, Possession of cocaine - collateral crimes - prior drug transaction. Error to permit state to introduce evidence that C.I. had purchased cocaine and marijuana from def on two prior occasions where prior transactions were totally unrelated to charged offenses. Nature of those differed from those of charged crimes. Not relevant to any material issue and priors were highly prejudicial.

Shootes, 34 FLW 2157, 1st DCA, New trial required where aggravated assault arose out of shooting of police officer, allegedly in self-defense, and many officers were in the court in official uniform at different stages. Created an unacceptable risk that their presence could effect the jury's deliberations. Def's counsel raised the matter and objected timely. Inherent prejudice to the def's fair trial and fundamental error and violation of due process. New trial

VFD, 34 FLW 2161, 1st DCA. Expungement of records - Trial court abused discretion denying without a hearing based on facts and circumstances of petitioner's case, including whether a gun was used during incident that led to petitioner's arrest. Remand for meaningful hearing.

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

Tuesday, October 20, 2009

Law Updates for October 16, 2009

Aldin, 34 FLW 2046, 3rd DCA, search and seizure/consent - Where the def signed a form consenting to a search of the apt, but crossed out a part where it included a search of his vehicle. Search of def vehicle after towed to the police station was illegal. No valid consent and no search warrant. Not valid as a vehicle search incident to def's recent arrest. Tool boxes and gloves not admissible under inevitable discovery rule. Harmless error

Hardin, 34 FLW 2080, 2nd DCA, Trafficking in cocaine/search and seizure - Under totality of circumstances, def wife did not voluntarily consent to hand over to the officers a purse containing cocaine which she had concealed under the sheets of the bed, where three deputies, two of them male, were present in the room, and where the wife was naked under the sheets. Ofc advised def and wife at the outset they were looking for drugs, and ofcs, after a fruitless search of the motel room, had repeatedly told the wife that he knew she had drugs and promised her she would not charged if she cooperated. Although initial knock and talk were okay, continuing the encounter in the intimidating manner suggested by the record for at least an hour, and after two fruitless searches, exceeded the bounds of consent. Women consented to one women deputy to enter the room. No evidence she consented to the subsequent entry of two male deputies. Fact that car and license plate from an area that ofcs considered high in narcotic activity and difference between names on hotel registration and on license did not give reasonable belief that drug activity was afoot.

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

Tuesday, October 13, 2009

Law Updates for October 9, 2009

Light, 34 FLW 1974, 1st DCA. - Error to deny motion to suppress confession which was obtained through promises to the def. Confession not voluntary where ofc told def he could go home that day no matter what he said, and ofc misrepresented the law concerning the age of consent to def so he felt he was doing nothing wrong when he made admissions to the officer.

Roopnarine, 34 FLW 1982, 4th DCA - Error to exclude exculpatory witness based on def discovery violation where prejudice to state could be cured by another remedy short of excluding the witness. State alleged prejudice would be outnumbered on witnesses. State's prejudice could be cured by mistrial or continuance. The State right to numerical similarity of witness outweighed by def fundamental right to defend himself. New trial

Delgado, 34 FLW 1985. 3rd DCA-Kidnapping Def properly convicted where def and co-def jumped into pickup truck left running by the driver and drove away with a two year old asleep in the back of the truck. Reasonable to infer from the evidence that def became aware that the child was confined in the truck during the course of removing the radio and stealing other items from the truck. Confinement of child continued to theft of items in the truck and continued confinement was essential to def's attempt to avoid apprehension for theft of vehicle and its contents.

Moreno-Gonzalez, 34 FLW 1991, 3rd DCA, Search warrant supporting affidavit - Trial court erred in suppressing evidence on ground that the ofc did not sign affidavit in support of search warrant, where ofc swore to allegations in affidavit under oath before the judge, initialed each of the pages of the affidavit, and initialed each of the three pages of the search warrant

Battle, 34 FLW 2002, 4th DCA - Error to admit testimony of police ofcs regarding statements of witnesses who were unavailable because they had returned to Mexico. Admission of unavailable witnesses violated Confrontation Clause. Error to admit detectives's opinion testimony regarding def's guilt.

Mitrani/Venticinque, 34 FLW 2015, 5th DCA, Discussion of use/derivative immunity. Trial court erred in denying state motion to compel testimony of witnesses who had been subpoenaed for depos and who declined to testify despite being given use and derivative immunity.

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

Tuesday, October 6, 2009

Law Updates for October 2, 2009

Brown, 34 FLW 1940, 4th DCA, Rebuttal by prosecutor. State's rebuttal contained references to evidence never admitted at trial and went beyond its function as a reply to def's closing argument: Included a photo never introduced into evidence and mentioned a witness who never testified. Remand for a new trial.

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

Thursday, October 1, 2009

Law Updates for September 25, 2009

Hernandez, 34 FLW 1883, 4th DCA, Lewd and Lascivious molestation, Williams Rule evidence - Trial court erroneously applied "light more favorable to the state" standard making multiple Williams Rule violations. New trial required where the only substantial evidence offered to corroborate the victim's version of events was testimony of victim of the prior alleged abuse.

J.J.V., 34 FLW 1890, 4th DCA, exceeding scope of consent: Juvenile consent to search the vehicle did not extend to the search of locked console in the vehicle where deputy asked for the key. Juvenile told deputy that the key was not available and only his mother had the key, and deputy, in spite of that, located the key himself and gained access to the console. Violation of juvenile's expectation of privacy. General consent did not extend to locked console. Juvenile set limits to the consent. Unable to protest held in the back of the officer's vehicle.

Haygood, 34 FLW 1905, 1st DCA, DWLS, evidence. Copy of def's DL record which reflected license was suspended for failure to pay traffic fine on one occasion and for child support delinquencies on two occasions provided notice given but did not list def's address. Insufficient to show that def was aware his license was suspended on date he was arrested. Suspended because of financial obligations. The presumption of knowledge caused by entry in DHSMV records does not apply and state has to prove the defendant actually received notice, Brown, 764/741(4th DCA 2000).

Tuesday, September 15, 2009

Law Updates for September 11, 2009

Pittman, 34 FLW 1809, 3rd DCA. Lewd and Lascivious. Info charged def with sex battery +12, did not adequately inform the def he would be subject to a conviction of LIO of lewd or lascivious battery, +12 -16. Remand to discharge the def from custody. State's last minute announcement on day of trial they intended to request jury charge on lesser offense clearly prejudiced the defendant and the nature of his defense

Mistral, 34 FLW 1817, 3rd DCA. exigent circumstances. Police received a call about a possible burglary in progress at def's residence, took him into custody in his front yard and conducted a protective sweep of the house. Sweep was illegal police entered the house without consent, exigent or a search warrant. Ofcs entered the house as a routine practice not on the basis of articulable facts that would warrant a reasonable belief that there was any dangerous individual inside whose posed a threat to those on scene.

Cable, 34 FLW 1827, 2nd DCA, knock and announce. Exclusionary rule applies to Florida statutory knock and announce law. Goes further than the U.S. Supreme court case of Hudson v. Michigan, certified to the Florida Supreme Court.

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

Thursday, September 10, 2009

Law Updates for September 4, 2009

Nelson, 34 FLW 1743, 4th DCA, A def with a non-drug felony is eligible for alternative sanctions under 948.20. Circuit court erred in finding the def ineligible for an alternative sentence under 948.20 because he had a prior non-drug felony conviction, different than 948.034.

Tedder, 34 FLW 1789, 1st DCA, Def entitled to discharge when info not filed within 175 days of time of arrest. No merit to state contention that def was unavailable for trial because of his incompetency adjudication in a separate case and speedy trial period did not begin to run under rules of 3.191(k).

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

Wednesday, September 2, 2009

Law Updates for August 28, 2009

Hair, 34 FLW 1669, 1st DCA, Stand your ground law-776.032(1). Denial of motion to dismiss based on issues of disputed fact was incorrect and directly contrary to precedent expressly holding that a Motion to Dismiss based on "Stand your ground" immunity cannot be denied because of the existence of disputed issues of material fact. Victim unlawfully and forcibly entered the vehicle and was still inside the vehicle where he was shot.

McKeown, 34 FLW 1689, 4th DCA, Felony DUI. Error to permit arresting ofc to testify he only arrests one-half of the DUI suspects he investigates. Error compounded when the prosecutor mentioned during closing argument. Error not harmless where def presented ample evidence to contradict the state's theory that the def was impaired by alcohol.

Byers, 34 FLW 1707, 2nd DCA, Trafficking in methamphetamine. Error to deny JOA for trafficking based on constructive possession. Def did not have dominion and control over backpack found in passenger side of the floorboard of vehicle during a consensual search, but established def only knew the drugs were in the car he drove to the motel and def knew a second man was going to sell the drugs and def agreed to drive a man to the motel in exchange for a small amount of the drug.

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

Tuesday, August 25, 2009

Law Updates for August 21, 2009

Hatcher, 34 FLW 1643, 1st DCA, Constructive possession. Officers who observed the def and another man sitting at a table located in the front of a residence between a fence and the street in an area known as a high narcotics area lacked pc to arrest the def for possession of the baggie of cocaine sitting on top of the table within 12 to 18 inches of the def where there was no evidence that the baggie was the def's, that the def exercised dominion and control of the baggie, or that the def knew of the baggie's illicit contents prior to the arrest. Error to deny motion to suppress.

Walden, 34 FLW 1162, 1st DCA, Hearsay, 911 call. Error to admit part of call as hearsay where the robbery victim asserted that another person just saw the def get into a red Cadillac. Error was harmless where both the victim and the witness, whose statements were relayed, were cross-examined at trial and witness testified he never actually saw the robber enter the car and could not see the occupants of the vehicle because it was dark and the vehicle was 200 to 300 feet away.

Pearson, 34 FLW 1664, 1st DCA, Writ of prohibition. Speedy trial, in Georgia, error to deny motion for discharge where def was arrested on Florida warrant and booked into a county jail in foreign state pending extradition back to Fla. Def was subsequently charged with and convicted of a crime in foreign state and jailed there as a result. Def was brought back and charged with information 579 days after the initial arrest in the foreign state. Speedy trial period not tolled where no information or indictment was filed in Fla. Failure to hold trial in Fla not attributable to the def , where state was always aware of def's incarceration and could have filed information prior to the def's return to Fla, thereby removing the case from the speedy trial rule.

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

Wednesday, August 19, 2009

Law Updates for August 14, 2009

Flowers, 34 FLW 1577, 4th DCA, Confidential Informant (CI) - Police had probable cause to seize the def when he arrived at a parking lot where CI had arranged to meet the def, given that the police confirmed informant's reliability by matching apt address and vehicles which informant id'd to def's driver license and vehicle registration, and by observing def arrive for another drug buy at specific time and place at which the def told him and given informant's statement he repeatedly bought drugs at def's apt in recent past. K-9 alert to def's vehicle gave police further cause to search the vehicle. Probable cause for issuance of search warrant for def's apartment based on informant's corroborated knowledge and results for vehicle search.

Cobb, 34 FLW 1600, 5th DCA, Hearsay-Dying Declaration- Although murder victim's dying declaration was testimonial, trial court did not err in allowing officers to testify as dying declaration is an exception to the Sixth Amendment Confrontation Clause. Def's right of confrontation was not violated because he had opportunity to cross-examine the officers about the dying declaration.

Gil, 34 FLW 1602, 5th DCA, Due process was not violated by police act of notarizing affidavits that had been signed by a CI using a fictitious name. Use of false name was for purpose of protection. Erred but did not intent to commit a fraud when he notarized the affidavits. Learned from his mistake and now includes the term "alias" on future affidavits.

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

Wednesday, August 12, 2009

Law Updates for August 7, 2009

Ramirez, 34 FLW 1520, 1st DCA, voluntary statement of def- Trial court erred in denying motion to suppress taped interrogation video, where detective offered several times to help the def in exchange for his cooperation without specifying the type of help he could offer. Absence of an express quid pro quo did not insulate police misconduct from claims of undue influence or coercion. Under totality def's statements were induced by improper police misconduct.

Monforto, 34 FLW 1538, 2nd DCA, deadlocked jury. Instructions improper where remarks could be interpreted as coercive. Jury could think not go home until they reached a verdict. Trial court spoke to jury foreman about the nature of the dilemma and he said legal issue, went back and jury never sent a question to the court, verdict came back ten minutes later even though twice before said they had reached an impasse. Jury announced numerical split, court gave improper Allen instruction, fundamental error.

J.C., 34 FLW 1542, 2nd DCA, Officer illegally detained juvenile without reasonable suspicion of a crime where 2 officers wearing range vests and badges pulled over, exited their car, and while approaching juvenile told him, "Hey, I've got to talk to you for a minute. Hang on." Statement amounted to order and show of authority. Reasonable person would not feel free to walk away but feel compelled to comply with a police officer's command to "hang on." Investigatory stop for which reasonable suspicion was necessary. Error deny motion to suppress.

McLaughlin 34 FLW 1555, 2nd DCA, GT Statute of limitations. State did not commence prosecution within the applicable statute of limitations. Evidence was insufficient to prove that "other process" issued after the information was filed where nothing in the record showed that counsel filed a written plea of not guilty or that counsel was notified of the def's arraignment, or that def or counsel knew that an information was filed against the def and that her prosecution was going forward in the usual way.

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

Wednesday, August 5, 2009

Law Updates for August 4, 2009

Navamuel, 34 FLW 1487, 4th DCA, - Error to deny motion to suppress evidence where law enforcement agents initially searched the def's home without a warrant or valid consent and then continued the search with a warrant based on illegally obtained evidence. Consent to search home is deemed involuntary where state failed to show, by clear and convincing evidence, a break in the chain of events of from the time the officers conducted the illegal stop and frisk in the def's driveway and obtained the def's consent to search the home. No argument or evidence that there was reasonable suspicion to justify an investigatory stop when the def was encountered in the driveway. Police did not have a reasonable belief that def was armed and dangerous to justify the pat down. Even if it was originally a consensual encounter, the illegal pat down converted it to an investigatory stop.

Hernandez, 34 FLW 1488, 4th DCA, Entrapment - Trial court erred in applying subjective entrapment as opposed to objective test(due process). Where claim was based on government's egregious conduct, court is unwilling to make rule that it is a per se violation for a government informant to offer illegal drugs to a known drug addict as an inducement to enter into illegal activity. Remanded to consider the right test.

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

Friday, July 31, 2009

Law Updates for July 24, 2009

Sundin, 34 FLW 1414, 2nd DCA, Poss of cocaine, constructive possession. Evidence was insufficient to prove that def had control over glass pipe containing cocaine residue found on nightstand in hotel room where evidence established nothing more than the def was a visitor of the resident of the room. Error deny JOA - GOOD CASE)

Reddix, 34 FLW 1416, 4th DCA, VOP hearing. Only evidence of violation came from program director's hearsay testimony. In order to prove willful and substantial, state was required to produce def's actual program chart at hearing and seek it's admission into evidence, otherwise needed personal knowledge of purported infraction.

Alvarez, 34 FLW 1426, 4th DCA, Not invoke right to remain silent when about two thirds through the second interview he asked to use the bathroom and officer responded "yeah, give me one second okay? You sure you don't want to talk to me?" and defendant responded "I really don't have nothing to say" had previously responded to prior questions with this same answer and after the bathroom he completed the interview without incident.

Blair v. Bradshaw, 34 FLW 1433, 4th DCA, Pretrial detention for Felony DUI for failure to appear for a court date was improper. No findings of fact or conclusions of law. Appeared for Misdemeanor DUI case, nolle prossed, and refiled as felony, and never notified of the court date.

Kramer. 34 FLW 1453, 5th DCA, Consensual encounter with the def was transformed into an investigatory stop when ofc ordered the def to open his mouth. Def mere act of "actively chewing" while walking late at night in high crime area did not give ofc reasonable suspicion of criminal activity. JOA ofc not engaged in lawful investigatory stop and not engaged in lawful duty at time of alleged residence.

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

Wednesday, July 22, 2009

Law Updates for July 17, 2009

Alsfield, 34 FLW 1381, 4th DCA, - Williams Rule Error to allow the state to introduce evidence of another prior alleged sex battery of a different women whom def met at same bar and brought back to his house, where state failed to prove by clear and convincing evidence that def actually committed a sex battery against that women.

J.S., 34 flw 1386, 3rd DCA, - Error to preclude defense counsel from questioning a witness regarding a contradictory statement the witness had made to the defense counsel in a interview a few minutes earlier. Trial court incorrect in concluding this was improper impeachment because defense counsel was putting herself forward as a possible witness. This was only a conflict where the witness contradicts what he or she said to the defense counsel and not if it is consistent what said in the hallway.

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

Tuesday, July 14, 2009

Law Updates for July 10, 2009

Harman, 34 FLW 1336, 2nd DCA, Court abused discretion in denying expunction based on finding that the charged offense was serious, 2nd D. Murder, and petitioner had been previously accused of domestic violence. Seriousness of offense alone is not enough to deny the petition and that the domestic case was with the same person (wife) who was murdered that the state nolle prossed when they could not prove corpus delicti. Remand for reconsideration of petition.

Santiago, 34 FLW 1356, 4th DCA, DSP, where defense filed a motion to dismiss stating that property at issue, a power washer, was on loan to the def. He pawned the washer because he needed the money, but before he could redeem it from the pawnshop and return it as per his agreement with the lender, police charged him, and state failed to file a traverse to undisputed fact that the def's permission to use the washer included the right to pledge it temporarily to the pawn shop for money. Trial court properly granted the motion to dismiss. Record does not support state argument that the def agreed to an oral traverse.

King, Sr., 34 FLW 1367, 1st DCA, Investigatory stop of vehicle. BOL for one who attempted to break into a house did not provide reasonable suspicion to justify investigatory stop of vehicle where length of time and distance from the offense was a neutral factor. Vehicle differed, although not dramatically, both in color and make, and the only objective information upon which the officers ultimately relied upon was the race of the perpetrators. Error to deny motion to suppress cocaine in passenger's pocket after officer removed a pocketknife containing a dusting of cocaine from the vehicle's center console.

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

Tuesday, July 7, 2009

Law Updates for July 3, 2009

Odom, 34 FLW 1278, 1st DCA, Fundamental error to revoke def's probation for failure to comply with p.o.'s instructions to report to the probation office between the 1st and 5th of each month where that was not a condition of probation.

Verges, 34 FLW 1291, 4th DCA, search and seizure residence - consent: def consented to a search of his home at minimum, drugs and drug related items. Consent was not limited to retrieval of marijuana plants where police entered the def's home with consent and, upon entry, observed marijuana contraband in plain view. Thereafter def was presented with a consent to search form which plainly was not limited in its items to retrieval of marijuana plants, and there was evidence that they told the def's attorney they planned to search for more contraband. Def's non-verbal action of pushing under a newspaper folded papers, did not amount to withdrawal of consent, did this prior to signing the consent to search form and prior to speaking to the def's attorney and prior to def signing consent. Pictures of child pornography discovered were not suppressed.

Julmice, 34 FLW 1298, 3rd DCA, Voir dire, trial court erred in preventing the defense counsel from striking white male juror on the panel based on finding that juror said he could be fair. Prosecutor objected to the strike on ground that the defense counsel had struck every other white person on the panel and defense provided a race-neutral reason for the strike. That juror was a uniformed military officer. Court erred by disallowing the strike on the ground that the juror could be fair without conducting inquiry to determine the genuineness of the reason.

Brickley, 34 FLW 1300, 4th DCA, error to refuse to give def's special requested jury instruction on constructive possession of contraband which stated that, if premises of which contraband were joint, rather than exclusive possession of def, state was required to establish def's knowledge and ability to maintain control over the contraband by independent proof of def's actual knowledge or evidence of incriminating and circumstances other than the mere location of the substance. Standard instructions misleading, drugs and gun were found in center console of the car driven by the def. Items were equal distance between the two and there was no evidence that the def had knowledge of the gun or drugs prior to the vehicle stop. Evidence supported the requested instruction. Instruction supported the def's theory that the vehicle was jointly occupied and thus the items were not in his possession. Def's instruction was not misleading. new trial

McGriff, 34 FLW 1322, 1st DCA, error to give instruction on principals where there was evidence def was standing in a group when the shooting giving rise to charges occurred. There was no evidence that the def acted in concert with others in committing the crimes. Error to instruct on law of principals to a response form a question from the jury.

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

Thursday, July 2, 2009

Law Updates for June 26, 2009

Cote, 34 FLW 1219, 4th DCA, exigent circumstances: Where ofcs responded to an anonymous complaint regarding narcotics activity in a certain apt. Apt door was open when they arrived, and ofcs observed the def in the kitchen, 2-5 feet in front of them, wiping down the counter with a paper towel and also observed a digital scale on the kitchen counter with a white powdery substance and straw on it. Ofcs were not justified in entering the apt without a warrant. Where the def was not aware of the ofc's presence, his action in wiping down the counter would not be interpreted an attempt to destroy evidence in response to law enforcement's presence. Ofcs, not def, created exigent circumstances.

Wilson, 34 FLW 1221, 4th DCA, Lewd and Lascivious: Trial court erred in forcing the def to choose between testifying further and giving up his attorney when the defense counsel expressed viewpoint that more testimony was not a good idea. Most of the testimony of the def was relevant to the charges. No suggestion he intended to testify falsely and no rule of evidence precluded his testimony. Trial court should have ordered the def counsel to continue with the direct examination. New trial required.

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

Friday, June 26, 2009

Law Updates for June 19, 2009

Wynn, 34 FLW 1158, 2nd DCA, where officer conducted a pat down search of the def who was a passenger in the vehicle - Pat down revealed nothing that might have been weapon or contraband. Then ofc asked the def if he minded if the ofc took items out of the def pocket and put them on the car, and the def did not reply. Ofc further search of the def after the pat down was illegal. Failure to respond not unequivocal consent. Ofc seeing cocaine in driver's side down did not justify the search of the def, where there was no evidence that cocaine was in plain view of the def.

K.A., 34 FLW 1165. 4th DCA, Juvenile, RAWOV. Ofc observed crowd of young people in a skating rink, approached crowd to disperse. While some people were running away, juvenile in middle of the crowd yelled, "why are you leaving" and "don't leave" and "they can not do anything about it." Juvenile ignored the ofc request to stop yelling at the crowd. Although ofc warned him he would be taken into custody, this is not enough for resisting arrest without violence. Ofc was not executing a legal duty. Group was not trespassing or violating a curfew or engaged in unlawful activity and ofcs were not asked by rink management to disperse the crowd. Juvenile's words were not obstructing or causing a riot. -error to deny JOA

*Krampert, 34 FLW 1179, 2nd DCA, failure to register as sexual predator. Jury instructions - fundamental error by failing to instruct the jury that before it could find the def guilty, state failed to prove that the def knowingly failed to register by not reporting in person the sheriff's office.

Confessore, 34 FLW 1187, 5th DCA, - Good vindictiveness case

  • trial court inserted himself in the plea discussions which were ultimately unsuccessful

  • plea negotiation were off the record

  • first trial resulted in mistrial

  • trial judge prevented the def from accepting the state's plea offer made by the state after the trial and made a different offer that was rejected by the defendant

  • judge imposed a disparate sentence from the plea offer after the 2nd trial

  • record did not reveal any new facts the judge learned after the 2nd trial which were unknown to him after the first trial


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

Thursday, June 18, 2009

Law Updates for June 12, 2009

Washington, 34 FLW 1116, 4th DCA, Records certifying the non-licensure of a contractor is a public record (State of Florida Licensing Division, Construction Industry Licensing Board) and non-testimonial under Crawford.

Bryant, 34 FLW 1120, 4th DCA, Self-defense, Abuse of discretion to refuse to permit a witness to testify that the def looked fearful when approached by the victim. It was necessary for the witness to adequately communicate her observations. Would not mislead the jury. No specialized training was necessary to recognize the fear in def's expression. Relevant to demonstrate that the def's fear was real, not harmless where def testified that the victim had a crowbar in his hand earlier and continued to threaten the def while he approached Who was holding the gun and not allowed to use the word "fearful" had to settle on the word "angry" a different emotion and not associated with self-defense.

Lollie, 34 FLW 1122, 1st DCA, warrantless entry into back yard of def's residence to knock on back door was an illegal search - fact that residence was in a rural area and that officers believed someone was home after knocking on the front door did not make entry into back yard reasonable.

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

Tuesday, June 9, 2009

Law Updates for June 5, 2009

Fleurimond, 34 FLW 1063, 3rd DCA, where the trial court had granted motion in limine prohibiting state from introducing evidence concerning prior drug activity at house where the def allegedly sold cocaine. Court erred in failing to either grant motion for mistrial or immediately sustain the objection and give curative instruction where the police ofc testified they were doing a surveillance at a location known to be selling drugs. Trial court also abused discretion in denying motion for mistrial based on cumulative prejudice resulting from improper argument (flush drugs down the toilet no evidence presented of that, at or near school reduced by court and state argued next to elementary school, appeal to community sensibilities how unfair it was in county that people were trafficking in drugs)

Mobley, 34 FLW 1090, 2nd DCA, where def had been arrested and secured in a patrol car, and all occupants were outside the house. There was no lawful basis for the officers to re-enter the house and conduct a warrantless search. Counsel was deficient for failing to file a Motion to Suppress firearm discovered in search of bathroom of house after def had been arrested.

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

Wednesday, June 3, 2009

Law Updates for May 29, 2009

Nottage 34 FLW 993, 3rd DCA, Deadlocked jury-based on the totality of circumstances. Trial court did not coerce the jury to return a verdict by giving the Allen charge following a note the jury was deadlocked, failing to declare mistrial, and sending the jury home for the evening alone does not constitute reversible error. Although court fails to admonish jury at the outset of deliberations not to disclose voting results, and failed to admonish the jury when jury reported its voting tally, court gave no further instructions to jury after Allen charge or in any way coerced verdict, totality of circumstances surrounding jury's deliberations did not render verdict unreliable.

Evans, 34 FLW 1005, 4th DCA, Batt LEO. Lawful execution of a legal duty. Jury instruction stating that a "trespass or narcotic investigation is a lawful execution of a legal duty" was improper because it did not convey to jury that it was to determine whether the trespass or narcotics investigation was lawful. Instruction improperly directed a verdict for the state. Trial court failure to give requested jury instruction that the word "lawful" be inserted before trespass constituted reversible error as it would have conveyed to the jury that it needed to determine the investigation was lawful before they determine the officer was executing a legal duty

Brown, Jr. 34 FLW 1016, 2nd DCA, Trial court erred in instructing jury in accordance with 794.022(1), that the testimony of the victim need to be corroborated in a prosecution for sexual battery. Instruction was misleading and improper comment on the evidence by the trial court, not harmless error lapse of twenty years between the alleged acts and the reporting to the police, no witnesses, no physical evidence, no admissions by the def and no collateral crimes evidence

Laidler, 34 FLW 1035, 1st DCA, Discovery violation by the state. Error to deny def motion to continue in order to investigate witness who was not timely disclosed by the state and whose testimony destroyed the alibi's defense. Trial court incorrectly denied based on ground that def opposed the motion, erred in failing to conduct a Richardson hearing, although ASA did not learn of it until week before the trial knowledge to police was imputed to the state.

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

Friday, May 29, 2009

Law Updates for May 22, 2009

Suarez, 34 FLW 967, 3rd DCA, Limitation of actions. Incarceration in federal prison within state did not constitute absence from state for tolling of statute of limitations, where state issued warrant for def's arrest while in federal prison located in Florida, but did not serve the warrant until after the def was released and SOL expired trial court properly dismissed the charge

Mainwaring, 34 FLW 976, 5th DCA, speedy trail-unavailability-incarceration in another county-where the court was aware that the def was held in jail in another county, as evidenced by the fact the trial court had issued several transportation orders which were not honored by the other county, and refusal to transfer, seemingly the result of miscommunication, confusion or administrative convenience was not justified, def was not "unavailable" for trial-error to deny the motion to discharge

Montejo v. La., 07-1529, May 26th, 2009, USSC, overrules Michigan v. Jackson, twenty-year old case: police can initiate interrogation of a criminal defendant post-magistrate or other similar proceeding unless the def actually invokes his right to a lawyer or otherwise asserted his 6th Amendment right to counsel where he stood mute at the hearing and the judge ordered appointment of counsel. BAD DECISION

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

Tuesday, May 26, 2009

Law Updates for May 15, 2009

Ingmire, Jr. 34 FLW 894, 2nd DCA, excess of plea agreement. Error to impose 15 year sentence based on def's willful failure to appear in violation of plea agreement where the state presented no evidence that the def's actions were willful, relevant evidence without the def's testimony was that he erred and compounded the error through well-intended but improper action

L.P. 34 FLW 909. 3rd DCA, search and seizure. Ofc stopped vehicle in which juv was a passenger after 2:00 a.m. and determined he was violating the curfew. After he received his age he detained him and ordered him out of the vehicle told him to put his hands on the car and stay put. No reasonable grounds to believe he was in violation of the curfew ordinance where the ofc did not ascertain juvenile's reason for being in public after curfew hours. No pc for curfew violation prior to juv admitting he had marijuana on him. Not sufficiently attenuated from the illegal seizure

Panter. 34 FLW 921, 1st DCA, ofc who observed a hand to hand transaction of an unknown nature between the occupants of a van and a person who exited a house known for narcotics sales did not have reasonable suspicion of criminal activity to justify investigatory stop of occupants of the van. Denied motion to suppress where ofc had detained the def and another occupant of the van, informed that a K-9 unit would be brought there, and K-9 dog alerted on the van

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

Wednesday, May 13, 2009


Often we forget that the things each of us do everyday in our lives, whether work related or not, are not always understood by others. What I do everyday as a Criminal Defense Attorney, the process and terminology, are sometimes baffling or misunderstood. To make the sometimes daunting legal system easier to understand and less threatening, I will, from time to time, try to help the layman with what I will call:

The Ramblings of Criminal Defense Attorney Roger P. Foley


If you have been arrested, normally you won't have to stay in jail while you are waiting to appear in Court. A Judge sets the Bond or Bail at the first hearing/ bond hearing. You may either post the bond amount in cash or you may hire a bail bondsman. The bail bondsman's fee is normally 10% of the bond amount. They may also require a co-signer or collateral. You may also be released from jail on your promise to return on the date and time specified. To be released on your own recognizance (ROR) you must prove to the Court that you are a reliable citizen with a good standing in the community. This type of bond is generally available to people arrested for the first time and when the charge is not extremely serious. Another form of Bond, know as Pre-Trial Release, is also sometimes available. This may involve a GPS monitor being attached to the defendant pending the outcome of the court case, along with daily or weekly contact with a pre-trial officer.

The Court considers many factors in setting the amount of bail, including circumstances of the arrest, the severity of the crime and its penalty or punishment range, the likelihood of flight, and any prior criminal record of the accused. If you are a first time offender you will usually be released on bail unless you are charged with a serious felony, or if the Court feels that you pose a threat to another person. Repeat offenders who have committed crimes while on probation or out on parole are sometimes denied bail. The U. S. Constitution prohibits an excessive or arbitrary bail.

At the first hearing/ bond hearing, the judge will make a decision that may have lasting implications in the case. It is a good idea to have a lawyer early on who can guide you through the process. Your lawyer may help determine whether posting a cash bond or contracting a bail bondsman is best for you. Your attorney can often learn a great deal about the case informally at the first hearing/ bond hearing. It is important to remember that if you fail to appear in court, or "jump bail," this money is forfeited and you are then subject to re-arrest and a more severe sentence if convicted.

Remember. If you are arrested consult an experienced criminal defense lawyer immediately. You owe it to yourself to find an attorney who really knows the law. Experience in Criminal Law is what you need when you or someone you care about is accused of a crime.

The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. These writings are designed for general information only. The information presented should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. You should consult an attorney for individual advice regarding your own situation.

Copyright © 2009 The Law Office of Roger P. Foley, P.A.

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

Friday, May 8, 2009

Law Updates, May 1, 2009

Youngblood, 34 FLW 817, 2nd DCA, Error to deny motion to suppress statements made by def during videotaped interrogation by law enforcement where ofcs did not cease communication with the def and he unequivocally invoked his right to counsel. Police continued on a course designed to convince him to reconsider his invocation of his constitutional rights in order to protect his girlfriend.

Ortiz, 34 FLW 829, 5th DCA, EXIGENT CIRCUMSTANCES, Residence, warrant-less entry into def's home and subsequent seizure of cocaine and drug paraphernalia were improper where ofc had been informed by a local elementary school that six year old's parents failed to pick him up from school and school could not contact his parents by phone. Ofc drove child to home address, no lights were on in the house and no one answered when child knocked on the front door. No car was in the driveway and nothing was amiss. Ofc lacked reasonable basis to believe that grave emergency existed that it made imperative that he enter the house without a warrant
-CONSENT- Assuming that six year-old child had the authority to consent to ofc's entry into common areas of the home, record failed to establish that child could validly consent to entry of locked master bedroom where contraband was found, and nothing in the record demonstrates that once at the locked bedroom door, any exigency was apparent that authorized the officer to enter the bedroom. Court is unwilling to adopt community care taking exception in case of residential searches

Finney, 34 FLW 841, 2nd DCA, County court erred in sentencing def to jail for VOP where original plea that led to probation was without counsel and def did not waive his right to counsel. Indigent def was entitled to counsel unless court entered a written order of no incarceration. Could not impose jail for original charges, could not impose for VOP. Def did not waive right to counsel by signing deficient plea form. Plea form was deficient: provided misleading impression that indigent def lacks right to counsel so long as trial judge is not currently considering jail sentence as an appropriate sentence

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

Monday, May 4, 2009

Law Updates for April 24, 2009

Seavey, 34 FLW 762, 2nd DCA, L & L molestation. Collateral crimes were admissible even though they were 16 to 25 years ago - became of feature of the trial - state's use of collateral crimes during opening and closing arguments to argue the def committed the charged crime because he was a sexual predator, when considered in conjunction with prejudicial nature of collateral evidence, evidence impermissibly a feature of the trial

Brown, 34 FLW 773, 4th DCA, Poss of Xanax, constructive possession - error deny JOA where xanax was found in the center console of the vehicle jointly occupied by the def and another person - evidence that the def was nervous, he agreed to sell crack cocaine to an informant, and def closed the center console was insufficient to prove def's guilty knowledge

Brown, 34 FLW 786, 2nd DCA, Trafficking in cocaine-evidence insufficient to establish def's constructive possession of cocaine found in kitchen drawer of jointly occupied premises where the state did not establish the drugs were in the drawer were in plain view or present independent proof that def had knowledge of cocaine in the drawer - fact that other drugs were in plain view did not permit an inference that def knew cocaine was in the kitchen drawer, ofcs who served the search warrant saw cocaine in plain view on dining room table was not submitted for testing or introduced in trial - police could not prove that def possessed the only cocaine tested and introduced into evidence, could not be convicted of any cocaine possession - JOA as to the Trafficking charge

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

Tuesday, April 21, 2009

Law Updates for April 17, 2009

Mathis, 34 FLW 736, 3rd DCA, C.I. Tip - officer did not have probable cause to search the def on the basis of a reliable c.i. tip that the informant had seen the man make a hand-to-hand transaction by a described man at a specific location where the informant did not describe the type of drugs sold or the method of delivery, and there was no evidence that the location had any prior history of drug transactions or that the officer had any prior knowledge of def's involvement in drug dealing. Hand-to-hand standing alone insufficient, under totality of circumstances, to provide officer with probable cause to search the def -see Chaney, 956/535(4th DCA 2007)

K.H., 34 FLW 739, 3rd DCA, Battery LEO-Ofc did not have pc or founded suspicion that juvenile was committing an offense(L & P) ofc not engaged in lawful performance of legal duties when he stopped the juvenile-error to convict juvenile of Battery L.E.O-remanded to reduce to battery as pushed ofc when he attempted to grab him-Act of placing hands on and looking inside window of vehicle with dark tinted windows not L an P

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

Thursday, April 16, 2009

April 10, 2009

Masaka, 34 FLW 664, 2nd DCA, Attempted manslaughter - error to exclude statements made by uncharged passenger during the police interview where the passenger admitted that he had a gun matching that used to shoot cab driver in his pocket earlier on the day of the incident and telling people "I'm fixin to rob somebody", stated he had the gun in his possession used in the shooting after the incident and sold it to a stranger two days later, admitted to changing clothes immediately after the shooting as he knew the police would look for the shooter, and told ofc he did not talk to the cab driver at any time during the cab ride-passenger unavailable to testify at the trial. Relevant to mis-id defense, given cab driver's testimony that person who shot him did not speak at all while he and the other man chatted during the ride, proffered evidence exculpated the defendant and inculpated the uncharged passenger, and self-inculpatory statements were statements against interest and sufficiently corroborated. NEW TRIAL - Also principal instruction improper as one man fled in regards to the plan to get a cab ride without paying, petty theft, when they reached the destination and the other remained in the cab and shot the cab driver

Williams. 34 FLW 685, 4th DCA, PRR no error in imposing PRR sentence for Felony Battery where he was adj. guilty under statute which requires Great Bodily Harm, permanent disability or permanent disfigurement and crime committed could not be committed without the use or threat of physical force or violence.

Leland, 34 FLW 700, 2nd DCA, L & L molestation-other crimes, wrongs or acts - evidence of other incident where def touched victim's 17 year old sister's back, ear and legs not admissible because as those facts did not amount to child molestation, 90.404(2)(b)(2).

DHMSV v. Crane, 34 FLW 708, 1st DCA, even though Def out-of-state DUI could not be used for enhancement in criminal case as is not substantially similar could be used in administrative hearing for license revocation-criminal sentence is separate from administrative license revocation.

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

Wednesday, April 15, 2009

April 3, 2009

Nicholson, 34 FLW 637, 4th DCA, Evidence - other crimes, wrongs or acts - uncharged collateral crime, although consisting of prior bad acts, was admissible to prove motive and intent, where the evidence depicted the turbulent and sometimes violent relationship between def and victim - similarities between events of collateral crime and circumstances of the homicide are insufficient to warrant the introduction of collateral crimes bad acts for purposes of identity.

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

Wednesday, April 1, 2009

March 27, 2009

Roberts, 34 FLW 606, 5th DCA, While the court ruled in this case the independent act instruction was properly declined since def was willing participant in the robbery and murders were furtherance of plan there is a good discussion of the case law in the area

Bolin, 34 FLW 619, 2nd DCA, good case on manslaughter instructions

McBride, 34 FLW 620, 2nd DCA, error to deny JOA where state's evidence established that the def witnessed shooting and ran from scene, did not prove he fired a gun or def intended for crime to be committed or he committed an act in furtherance of - The act of fleeing the scene not enough to give rise to def's intent or participation in the crime

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

Tuesday, March 24, 2009

March 20, 2009

Cowan, 34 FLW 534, 4th DCA, Post-Arrest silence, video recording made of interaction between def and companion after they were arrested and left unattended in back seat of police car may have been admissible for limited purpose of showing that contrary to his testimony at trial def actually spoke to the companion, cross-exam of def as to why he did not to respond to companion's implied accusation and prosecutor's comments in closing argument emphasizing def's silence in patrol car was improper, comments on def post arrest silence - new trial

Robinson, 34 FLW 572, 1st DCA, sexual offender registration - evidence insufficient to support conviction for failing to comply with registration requirements by failing to report change in residence, although def was sleeping outside on the sidewalk of the homeless shelter which he listed as his current permanent residence, undisputed def advised local authorities where he could be located and complied with statutory requirement - fact that a client services rep. at homeless shelter did not see def at the shelter is not dispositive where def explained in unrebutted testimony he left early in the morning for work before rep arrived at shelter for his workday.

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

Tuesday, March 17, 2009

March 13, 2009

DeBolt, 34 FLW 482, 2nd DCA, trial court abused its discretion in allowing the state to question the defense experts regarding a disciplinary action in which the expert was formally disciplined in another state and received a four year restriction on his license as a sex offender treatment provided for adolescent sex offenders, focal point of state's case was not harmless error

Daniels, 34 FLW 483, 2nd DCA, expert testimony that she had never observed a child of the age of the victim react to certain testing procedure in the same manner that the victim had reacted and it was her opinion that victim's atypical reaction was "suggestive" of child sexual abuse lacked a proper factual basis where expert did not testify in her experience, children who did not exhibit a typical reaction during the procedure were likely sexually abused, harmful error, as prosecutor in closing argument emphasized expert's extensive experience in the field and her opinion that child's reaction was suggestive of sexual abuse

Lee v. DHSMV, 34 FLW 520, DUI, Adm review of suspension - licensee was denied due process when hearing officer failed to issue subpoena for individuals who inspected breath test, although inspection reports authored by these individuals were received in evidence and considered by the hearing officer in sustaining the license suspension - circuit court departed from the essential requirements of law in concluding the hearing officer did not have the authority to issue subpoenas

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

Wednesday, March 11, 2009

March 6, 2009

Two Williams Rule cases for the defense:

Berube, 34 FLW 436, 2nd DCA, Williams rule testimony was not similar or bear any logical relationship to any material aspect of the crime for which the defendant was being tried for. harmful error. state proof did not exclude the possibility that husband or unknown third person had actually strangled the victim, testimony had substantial effect on the jury and the prosecutor emphasized when he argued testimony of the rape victim and the def's encountered in the tried case showed that the def was the killer

Fike, 34 FLW 457, 5th DCA, evidence of prior acts as not sufficiently similar to charged act though not preserved for appellate review was fundamental error. charged offense of sexual battery on def's daughter and sexual molestation of def's ex-wife younger brother not sufficiently similar, other than occurred in familial context. no similarity between the two offenses, no physical evidence to support her version of events, admission of collateral crimes were fundamental error

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

Tuesday, March 3, 2009

February 27, 2009

Aime, 34 FLW 381, 4th DCA, Manslaughter with a firearm, evidence insufficient to support conviction where state failed to establish that the def was the shooter or aided and abetted in the shooting - def convicted of manslaughter with f/a as lesser included offense of first degree murder did not waive to raise sufficiency of evidence of manslaughter by failing to object to state's request for instruction of necessarily LIO

Reyes, 34 FLW 396, 3rd DCA, ofc had well founded suspicion justifying the investigatory stop where, upon approaching the defendant, officer noticed that the scooter had no key, def was nervous and sweating, he was coming from the direction of the scooter store, ofc had knowledge of recent scooter thefts in the area and he stated the scooter belonged to a friend whose name and address he did not know - ofc conducted a pat down and felt no weapon in def's clothing ofc actions in reaching into the pocket and retrieving driver's license was not valid - trial court properly suppressed evidence regarding def's identity, before the def arrested other ofc ran check on scooter's VIN and discovered that scooter belonged to the scooter store, evidence regarding ownership of the scooter was erroneously suppressed - evidence was secured independently from pat down search and was legally obtained followed valid investigatory stop and temporary detention

Kanji, 34 FLW 411, 5th DCA, denial of expungement, discretion of court to deny in not unfettered, remanded where no reason was given for the denial for the lower court to either grant or give reasons for denying the petition

Also, three cases about DHSMV cases about different issues where writs of cert granted by the trial court was overturned, cases more important for those who handle administrative hearings in refusal cases, Nader, 34 FLW 414, 2nd DCA, Escobio, 34 FLW 417, 2nd DCA, Yankey, 34 FLW 418, 2nd DCA.

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

Wednesday, February 25, 2009

February 20, 2009

Galazz, 34 FLW 335, 3rd DCA, suspended sentence, standing alone, is an illegal sentence - power to suspend sentence can be exercised only as incident to probation - trial court properly vacated the plea - to render suspended sentence illegal, it would be necessary to add term of probation

Chen and Fifnje, 34 FLW 339, 2nd DCA, Anticipatory warrant - U.S. v. Grubbs, 547 U.S. 90(2006), long opinion for your review, ruled for the state that anticipatory warrant need not specify the triggering condition but need only id the place to be searched and the persons or things to be seized, and supporting affidavit must give the magistrate with sufficient info to evaluate where there exists a fair probability that contraband will be found at the place to be searched if the triggering condition occurs and if there is pc that the triggering condition occurs - Controlled delivery case

Wright, 34 FLW 344, 2nd DCA, motel room - exigent circumstances - although def was suspect in domestic violence case and was believed to be violent and armed, there were at least five officers at the motel and another two plain clothes units monitoring the area, no indication that the def was aware of the police presence outside the hotel, and state did not show there was insufficient time to secure the warrant before the officers opened the door and ordered the def out of the room to effectuate his arrest

Almond, 34 FLW 372, 1st DCA, failure to register as a sex offender after change of address - hearsay - error to admit registration forms and def application for a driver's license where none of the documents were self-authenticating business records, records custodian was not present to testify as to their authenticity and not public records exception to the hearsay rule - error to admit testimony of the deputy that he verified that the def did not reside at his address after speaking to a resident at that address, he located the def after speaking to his girlfriend, that the def was residing at a different address based on info he gathered, knew he was required to register based on info he received from FDLE - hearsay by inescapable inference

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

Thursday, February 19, 2009

February 13, 2009

Ramirez, 34 FLW 270, 4th DCA, Burden of proof-error for court to allow the state to shift burden of proof to def through its questions and comments implying that the def should have produced photographic evidence and medical records to support her version of events underlying the battery charge. Def did not assert affirmative defense and thereby voluntarily assume burden of proof, instead simply claimed that the battery never occurred, photos that state knew were available were subject to reciprocal discovery and therefore equally available to the state

Cox, 34 FLW 292, 2nd DCA, Agg child abuse - conviction based on incident in which def, while children were visiting, telephoned children's mother in their presence, launched into angry tirade against the mother and her new husband, rubbed blunt edge of pocket knife along child's leg and stabbed mattress several times, stating that this is what the def would do to the child's mother and her new husband. Insufficient to establish agg child abuse under malicious punishment theory where state presented no evidence that the def's actions were imposed as form of punishment against children - conduct did not involve level of brutality or extreme pain and suffering necessary to constitute agg child abuse by malicious torture - conviction was fundamentally erroneous

Barrientos, 34 FLW 304, 2nd DCA, Post 893.101 which eliminates "knowledge" that state has to prove that the def knew substances was cocaine as an element post 5/13/2002, court erred by eliminating word "knowingly" from the first element of trafficking jury instruction where issue of def's knowing possession of cocaine was a disputes issue at trial - new trial required

Curry, Jr., 34 FLW 313, 1st DCA. court erred in not having a Richardson hearing where the state failed to disclose that the witness gave a different prosecutor a tape recorded statement in which she stated the def had confessed the crime to her - entitled to hearing as a matter of law - fact that the ASA who tried the case was not aware of the tape is not a defense - timely disclosure of the tape may have changed defense strategy. Failure to hold hearing was not harmless error.

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

Friday, February 13, 2009

February 6, 2009

Supreme Court

Valdes, 34 FLW 116, New dj test, 775.021(4) (b) (2) prohibits separate punishments for crimes arising from the same criminal transactions only when the statute itself provides for an offense with multiple degrees-, (4)(b)(2) offenses constitute different degree of same offenses with multiple degrees, discharging a firearm within 1000 feet of a person in violation of 790.15(2) and shooting into an occupied vehicle 790.10 same offense does not violate double jeopardy, State v. Paul, 934/1167(J. Cantero-concurrence)

E.A.R., 34 FLW 120, Juvenile case and departure from DJJ recommendation, standard for departures

Rigterink. 34 FLW 132, error to admit inculpatory videotape of police interrogation of def where right-to-counsel warning was defective, it stated that def only had a right to have an attorney present prior to questioning-def was in custody under four-part Ramirez test, long opinion in Murder case

District Court of Appeal

L.B.B., 34 FLW 261, 2nd DCA, error to deny motion to suppress marijuana found on juvenile after arrest for riding a bicycle without a bell, in violation of a city ordinance-traffic offenses related to bicycles are noncriminal violations subject to only civil penalties and individual cannot be arrested for violating a bicycle-related city ordinance-equivalent ordinance previously found unlawful by Florida Supreme Court

Sinquefield, 34 FLW 262, 2nd DCA, Lawful execution of legal duty-police not engaged in lawful execution of legal duty when he attempted to detain def at time when ofc was outside his jurisdiction and acting as private citizen-erroneously convicted of obstructing ofc without violence

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

Tuesday, February 10, 2009

January 30, 2009

Bowers, 34 FLW 207, trial court erred in discharging the def from further prosecution based on a violation of rule 3.191-continuances and delays attributable to the def waived speedy trial time in rule 3.191(m) even after a mistrial one would have to file a demand.

Beam, 34 FLW 217, 5th DCA, def who had sexual intercourse with his 18 year old adopted daughter and niece by his marriage could not be convicted of incest because adopted daughter was not related to the def by consanguinity-does not extend to persons related by affinity or adoption or biologically by blood

Harris, 34 FLW 220, 2nd DCA, error to stop vehicle on ground that trailer hitch partially blocked the tag and ofcs could not read the letters on the tag from 30 to 50 feet-properly attached trailer hitch is not "other obscuring matter" for purpose of statute requiring that id information on plate be clear and distinct and free from defacement, etc.

Cromartie, 34 FLW 223, 1st DCA, evidence to exclude evidence of def's blood alcohol level at time of fight in which the def struck the victim one time and victim fell under theory of defense was that victim was acting in an aggressive, threatening manner, under the influence of alcohol and was defending himself when he struck the victim only once-new trial required

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

Wednesday, February 4, 2009

January 23, 2009

Meshell, 34 FLW 41, Fla, L & L, 800.04(4) not D.J. violation when oral sex and vaginal penetration in one single criminal episode can be more than one count, elements of different proof and and therefore distinct criminal acts

Evans, 34 FLW 150, 4th DCA, tampering with evidence-evidence that def threw or dropped cocaine rock in sand and ofcs were unable to find, without further evidence of specific intent to tamper with or conceal the evidence was insufficient to find anything more than mere abandonment-error to deny JOA

Spangler, 34 FLW 170, 5th DCA, Bolstering of witnesses-state's direct exam of arresting officers regarding their interest, bonus, discipline and incentives in relation to outcome of the case was relevant to only the bolster the officer's credibility and court erred in allowing this testimony-not harmless when the case is based on the two officer's credibility and state focused on it during closing argument

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

January 16, 2009

Brook, 34 FLW 121, 5th DCA, CCF-exemptions-def who was found in possession of a concealed firearm on premises of business of which he is an employee was improperly convicted of ccf-statute making it lawful for a person to possess arms at his or her home or place of business applied to the def in this case even though he did not have a proprietary or possessory interest in business and business was not open at the time of the arrest.

Lindsay, Jr., 34 FLW 130, 1st DCA, 10-20-Life-Mandatory minimum-Possession of firearm-failure to submit question of actual possession to jury was error, but error was harmless where no reasonable jury could have found possession by def without finding that the def was in actual possession of firearm-certified to Fla. Sup Ct.

Jackson, 34 FLW 132, 1st DCA, arrest of def for giving false name during consensual encounter before he was detained was unlawful-error to deny to suppress statements given post-arrest-exceptions to exclusionary rule-stolen shotgun and shotgun shells which were found in shed were properly admitted under independent source where the def's mother gave consent to search the shed-police discovered evidence through independent means untainted by the unlawful arrest-crack pipe found on def admissible under same doctrine because ofcs would have arrested the def for burglary after finding the stolen handgun and search incident to arrest would have led to the crack pipe

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

Wednesday, January 21, 2009

January 9, 2009

Nowell, 34 FLW 26, Fla Sup Ct., Murder case revered unlawful strike in voir dire for the following reasons; prosecutor's general feeling or "dislike" of juror not genuine race neutral, juror's age not legitimate where other juror left on jury was equally applicable and not challenged by the state, prosecutor's concern about juror following the law based on juror's wife job at day care center and his philosophy on death penalty was contradicted by the record, concern that juror felt he was judging the person, offered by the prosecutor was an "afterthought"when trial court revisited the issue the following day, was equally applicable to other jurors not challenged.

Sheppard, 34 FLW 5, 2nd DCA, aiding and abetting-although there was sufficient evidence that def was guilty of aiding another person in selling and delivering cocaine to undercover officer, insufficient in aiding and abetting possession of that cocaine no showing actually or constructively possessed that cocaine or aided or abetted the other person in acquiring or retaining the cocaine-JOA for possession should have been granted

Steadman, 34 FLW 78, 2nd DCA, Pat down-plain feel, ofc justified in conducting a pat down here, however, ofc did not lawfully remove plastic baggie of cannabis from def's pocket where he did not immediately recognize items as contraband, but instead needed to extract "baggie" to discover what it contained-error to deny motion to suppress, Perkins, 979 So. 2d 409(1st DCA 2008).

Stumpf, 34 FLW 87, 4th DCA, CCF without a license-def who worked as a volunteer with Fla. Fish and Wildlife Commission, and authorized to carry firearm as part of his employment was exempt from licensing requirement for CCF although the def had been placed on inactive status but not officially suspended, 790.052

Sharrard, 34 FLW 94, 4th DCA, Circuit Court exceeded jurisdiction by entering orders requiring DOC to effect warrant less arrests of def on c.c. or probation upon def testing positive for a prohibited substance and require Dept to transport offender to jail-violate separation of powers.

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