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.