Thursday, December 30, 2010

Juvenile Convictions - More Trouble Than You Think

Juvenile cases are no joke. Many people scoff at the idea that anything serious will result from juvenile charges because they simply do not know the reality of the juvenile court system. Charges a child receives can and will follow him into adulthood. Perhaps the most important thing to note about juvenile court is the consequences a juvenile conviction poses. Many participants are under the impression that a juvenile conviction has no meaning and that it won’t “count” as an adult. This is a huge misconception. Under Florida Statute 921.0021, “Juvenile dispositions of offenses committed by the offender within 5 years before the primary offense are included in the offender’s prior record when the offense would have been a crime had the offender been an adult rather than a juvenile.” This means that juvenile convictions can count on an adult score sheet, which ultimately means that an 18 year old could score prison time on a first time adult offense.

When little Johnny is charged with battery after a neighborhood fight, he may get only a slap on the wrist, do some community service hours with the Boys and Girls Club, and have to write an apology letter. Everyone will jokingly say “boys will be boys!” and the whole incident will soon be forgotten. Then, when that same Johnny gets into a bar fight as an adult, those conviction points from his juvenile case could very well help land him in prison. On a first adult conviction. Better yet, on an adult conviction that, without the juvenile points, would likely have been resolved with probation. The old maxim that “boys will be boys” is no longer as endearing as it once seemed.

Juvenile Court handles the criminal cases of people who are arrested when they are under the age of 18. Juvenile Court is similar to “Adult Court” in many notable ways: minors who are tried in juvenile court have the right to an attorney, to remain silent, to confront witnesses and cross-examine witness testimony, to call witnesses, and to not incriminate themselves. Despite the similarities, it is important to understand that juvenile court is still separate from the adult court system and has different procedures and policies. The main difference: there is no right to a jury trial in the juvenile court; everything is held before a juvenile court judge. And, while juvenile cases generally result in rehabilitative treatment instead of incarceration, the court could detain a juvenile in a detention center for 21 or 30 days without bail in the case of a serious crime.

An important thing to note is that there is no guarantee that a person under the age of 18 will be sent to juvenile court. In fact, if the individual is close to the age of 18, has been charged with a violent crime, or is considered a "repeat offender," he may be tried as an adult in the regular criminal system and could face the same penalties as an adult.

Now it is easy to see why juvenile court cases should be taken just as seriously as adult cases. This is why minors should never speak to the police or authorities without legal counsel, or at least parents, present. Not only can what they say be used against them in court, but often, minors do not even realize what they are saying is incriminating. Parents seem to think that it's helpful to talk with the authorities, but it is important to remember that law enforcement officers are not usually a minor’s friends. Classroom lectures and after-school specials on TV would have youngsters believe that police officers are their best friends and that they should always talk to them because it’s the “right thing to do.” Wrong. Officers are there to do their job, which is to get evidence for their case, the outcome of which could affect that minor for the rest of his life. An adult would never talk to an officer about a pending criminal investigation without legal representation – and neither should a child.

11 year old Sallie is trying to break up a fight between two of her friends. She admits to the officer that she pushed someone in the process. Now she is charged with Battery. Did she technically do anything wrong by trying to break up the fight? No. But she did just get herself into trouble by explaining what she thought was a harmless scenario to an officer she wrongly believed would understand her side of the story.

This is not to say that honesty isn’t the best policy, as we all preach to our children from a young age. This is to say that silence is golden. A minor may think that he is “doing the right thing” or “helping” by talking to the police, but 9 times out of 10, he is only digging his hole deeper. He’s giving the police the evidence they need to arrest him, and usually he doesn’t even know it.

A lot of parents seem to want to “teach a lesson” to their children who have gotten into criminal trouble by telling the police to take them to jail. While this is an honorable, and certainly understandable, response to the situation, it really does more harm than good. “Let him sit there overnight and think about what he did,” is often the parent’s response. Or, even worse, “Timmy – you had better tell the officer the truth about what you did!” Maybe Tiny Tim will learn his lesson by being punished that way, but then later on in life when he gets a DUI or holds weed for a friend or is in trouble for carrying a knife that he didn’t realize was concealed, that childhood night in jail and forced admission will come back to haunt him.

Parents – do your kids a favor and don’t get them into trouble criminally. Ground them. Lecture them. Make them clean the house or run suicide sprints like a basketball coach. Embarrass them by supervising all of their dates. But don’t force them to talk to the police without a lawyer, and don’t make them sit in jail over night if you can help it. Juvenile convictions can have much larger effects than are immediately apparent and can be crucial later on in life.

The motto of the Juvenile Justice System is to "increase public safety by reducing juvenile delinquency through effective prevention, intervention and treatment services that strengthen families and turn around the lives of troubled youth." Rehabilitation and prevention are often used in place of punishment, and the sentences in juvenile court are generally “soft.” Minors who have stolen from others, or physically harmed someone, or even possessed drugs are often sentenced to community service hours and letters of apology instead of the incarceration they would be facing if they had committed the same crime after the age of 18. Although this means that juveniles often get what is viewed as a mere slap on the wrist, like little Johnny or Tiny Tim initially did above, juvenile court also gives young adults the opportunity to change their behavior and habits that they would not get if they were sent to adult court. They get a second, and often third, chance to straighten up. And if they do not, if they keep their bad behavior and continue to get into trouble, it will catch up to them.

One final important note: Police Officers can lie to juveniles. They can say anything they want and hold whatever a juvenile says against him, even if the juvenile’s parents or attorney were not present. Officers do not have to inform minors that they have a right to have their parents present; juveniles have to request to have their parents present, and they always should.

If you know a minor who is facing the juvenile justice system alone, have them contact a qualified attorney.

Legal Disclaimer: This information is not intended to create, and receipt or viewing of this information does not constitute an attorney-client relationship nor is it intended to be legal advice for any individual case or situation. You should consult an attorney regarding your individual case.

Copyright (c) 2010, Law Office of Roger P. Foley

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

Wednesday, December 29, 2010

Law Updates for December 24, 2010

Myles, 35 FLW 2819, 3rd DCA - DNA match with in the State Index Data Bank for unresolved crimes resulted in "cold hits" for unsolved rapes.  Probable cause for the arrest of the def, and DNA swabs taken after the arrest were admissible.

Watana, 35 FLW 2824, 4th DCA, Consent, Voluntariness -  Record supports trial court determination that there was no voluntary consent to search def's person even though def was properly stopped for speeding. Trial court was free to reject ofc's testimony that when he asked the def to step out of the vehicle, and then for permission to search his person, def complied with all the ofc's request without withdrawing or resisting consent.  Court finding any consent given was submission to authority and not voluntary, supported by competent evidence.  Nothing in record to indicate that a search of his person was anything more than one step in the ticket writing process.

Neal, 35 FLW 2835, 4th DCA, Evidence - Trial court erred in allowing police ofc to testify it is common not to find a gun in armed robbery cases.  Testimony describes general behavior and, used to bolster the charge this was an armed robbery even though no gun was found or linked to the def, was prejudicial and not harmless.

Barrios, 35 FLW 2837, 4th DCA - Prosecutor's comments during closing argument asking the jury if they would allow the def to get away with it and arguing the only true and just verdict was guilty was improper and prejudicial-new trial.

Lewis, 35 FLW 2848, 4th DCA, Kidnapping - Court should have granted a JOA, Def's actions of ordering store manager to a different room of the store during the robbery, ordering manger to lie on the floor, and unlocking one of the handcuffs so that neither victim was bound or barricaded when the def fled insufficient to lead to the separate crime of kidnapping.

Higerd, 35 FLW 2874, 1st DCA - Possession of child pornography in Airline luggage.  First Impression, Administrative search of an accordion folder inside def's checked baggage by TSA officer.  Bag was randomly selected.  Physical administrative search of luggage was not unnecessarily extensive or inclusive and did not violate the 4th A. TSA officer stopped as soon as saw the pictures and contacted police who got a warrant.  Even if search violated 4th A., good faith exception to warrant applies because TSA officer would not have known search was illegal.

McCoy, 35 FLW 2876, 1st DCA, Trafficking in Hydrocodone - Jury Instructions.  Trial court's failure to instruct the jury on prescription defense that the wife was holding her husband's medication was fundamental error, an error compounded by the prosecutor's closing arguments that there was no defense to the def's possession of the pills, where presenting an "affirmative defense" has to prove fundamental error for lack of the jury instruction which was done here.

Davis, 35 FLW 2882, 1st DCA,  - Error to admit testimony of police investigator recounting statement of witness who had previously confessed to the investigator and implicated the def, but who testified at trial he was unable to remember anything about the incident except that he was one of the robbers.  Testimony did not fall into the exception about statements identifying a person which applies if the declarant was an eyewitness or a victim or after perceiving that person soon after the crime or coming in contact with her.  Officer's testimony could not be used as impeachment as the witness said he did not remember anything and no evidence that the witness appeared to be fabricating lack of memory.  Not harmless error

Gentles, 35 FLW 2900, 4th DCA, - Seizure occurred when ofc directed the def  to turn off his car engine, when ofc notified the def asleep in his parked car with motor running during early morning hours in a shopping mall. Seizure not based on reasonable suspicion of criminal activity or specific concern for officer safety or the health and safety of def or others.  Trial court erred in denying the motion to suppress.

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

Friday, December 24, 2010

Law Updates for December 17, 2010

Dennis, 35 FLW 731,S. Ct., Stand your ground immunity.  Trial court should decide the factual questions of the applicability statutory immunity, 776.032, should not be a C 4 Motion but a Motion to Dismiss under 3.190(b).

K.C., 35 flw 2694, 4th DCA, Possession of BB gun on school property.  Evidence was insufficient to prove that BB gun juvenile with possessing was a deadly weapon, where it was in a book bag, not loaded and no evidenced used or threatened to use the BB gun as a bludgeon.

C.N., 35 FLW 2699, 2nd DCA, Disorderly conduct.  Error to adjudicate juvenile delinquent for DOC for shouting and using foul language.  No evidence that the juvenile's words either caused crowd to gather or incited the crowd to engage in an immediate breach of the peace.  Officer did not have a reasonable suspicion that juvenile was committing a crime and was not performing a legal duty when he arrested the juvenile without a warrant for that offense.  Error to adjudicate for the resisting charge.

Redd, 35 FLW 2706, 1st DCA, Trafficking in Cocaine.  Double hearsay elicited by the state and heavily relied on to prove that the def was in possession of cocaine was not admissible and def did not open the door to its admission.  Without hearsay statements state would not have been able to prove that the def had dominion and control over the contraband, knew of its presence, and knew of its illicit nature.  New trial required

Freeman, 35 FLW 2748, 2nd DCA, Voir Dire.  Error to deny challenge for cause for juror who expressed some doubt about her ability to be fair and impartial in her assessment of witness's credibility, stating she might give more credibility to police officers(Police officers in her family).  Preserved for appeal properly, not required to show legally objectionable juror on the jury.

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

Friday, December 17, 2010

Law Updates for December 10, 2010

Cable, 35 FLW 705, Fla, Knock and Announce.  Exclusionary rule applies to violations of Florida's knock and announce statute.

Burke, 35 FLW 2610, 2nd DCA, Evidence was insufficient to prove that the child was physically or mentally impaired, for purposes of 827.03(1), by def's acts of twisting his arm, pressing against his knee, and holding him by the hair, cites cases.

Colbert, III, 35 FLW 2624, 4th DCA, Evidence insufficient to sustain conviction for burglary of the retail store where the def was standing in the area of store open to the public when he broke the side glass panel of the jewelry case, reached in, and grabbed several pieces of jewelry.  Fundamental error  for leaving the scene of the accident. 316.061(1) when the evidence is insufficient to establish "driven or attended" where neither owner or someone in possession of the vehicle was present when the def crashed into the parked car.

Wyrick, 35 FLW 2666, 5th DCA, Def was properly charged with third-degree felony, rather than 1st degree MM, for DWLS where the defendant had been designated as a habitual traffic offender at the time the license was revoked.  All three prior suspensions have to be for suspensions based on factors listed in 322.34(10)a 1-5.

Stelmack, 35 FLW 2672, 2nd DCA, Possession of photograph or representation that, in whole or in part, includes "sexual conduct of a child." - Error to deny JOA where the conviction was based on def's possession of several images showing faces and heads of children pasted onto images of 19 year old women lewdly exhibiting her genitals.  No sexual conduct by a child only sexual conduct in images was that of an adult.

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

Thursday, December 2, 2010

Marijuana Cultivation: Grow Houses and Hydroponic Operations

When it comes to indoor marijuana cultivation, Florida is one of the nation's leaders. Grow houses have been found in more than two-thirds of Florida's counties, and over 1000 hydroponic operations have been busted in Florida to date. As a result of the drastic increase in marijuana cultivation, Florida has employed multi-agency drug task forces such as HIDTA (High Intensity Drug Trafficking Area) that work alongside the Office of National Drug Control Policy to bust hydroponic operations.

Hydroponic grow houses enable operators to cultivate marijuana plants with higher levels of THC than are typical of plants grown outdoors. Sophisticated hydroponic operations use little to no soil, simulate sunlight by utilizing high intensity lamps, and incorporate irrigation systems of water and chemical fertilizers. Often, these types of operations include specially designed timing systems for lighting and watering, as well as electric meter diversions. Because of the technology used, many cannabis grow houses require little oversight. However, there are cases in which helpers are hired by cultivators to oversee the operations.

The increasing number of arrests relating to marijuana cultivation can be attributed in large part to the tumultuous climate of the economy. The virtually non-existent Florida real estate market has essentially left homes open for cultivation. The rise of abandoned and foreclosed homes in Florida combined with the high level of unemployment has created a perfect storm for cultivation and hydroponic operations.

Not all hydroponic operations are found within foreclosed or abandoned homes. Many such operations are run in rental homes. Growers often rent homes from landlords as tenants, typically looking for homes with large attic space to accommodate the technology that will be used. If attic space is sparse, growers have been found to cut holes through walls, or run their operations underneath the houses in order to provide adequate ventilation for both the high intensity lamps and the dampness caused by the irrigation systems. Heat reducing curtains and blinds, concrete subfloors that absorb heat, foam insulation, and underground exhaust systems are also typical installations and modifications found within grow houses.

Landlords provide an invaluable resource to law enforcement because landlords often have the contractual right under the lease to inspect their rental properties upon giving merely 24 hour notice to renters. If a landlord enters a home and has reason to believe that a hydroponic operation is being run in the home, either because he observed hydroponic materials or noticed other unusual modifications or damage to the home (including mold), the landlord may be able to provide the police with the evidence they need to obtain a search warrant. Additionally, landlords and homeowners have incentive to report their findings to the police because Florida law allows charges to be brought against a homeowner or landlord who knowingly owns a house being used to grow marijuana, even if he or she does not live there. Reporting hydroponic operations immediately upon discovery to law enforcement provides homeowners and landlords a safe haven from prosecution.

Because the U.S. Supreme Court ruled in Kyllo v. United States, 533 US 27 (2001) that the use of infrared technology and thermal imaging to detect heat coming from suspected grow houses is intrusive on Constitutional rights and therefore illegal, law enforcement agencies have had to turn to other forms of investigation to locate hydroponic operations. The police have begun relying upon public reporting of unusual activities relating to the homes: uncommon amounts and types of trash around the home, added electrical equipment, exhaust emissions, unusual warmth around the house, smells coming from the house, et cetera. Many of these types of operations are discovered by law enforcement via anonymous tipsters and informants.

Other factors that alert law enforcement of the potential existence of a grow house may be unnoticeable by the general public. However, high power consumption and unusually large power bills (especially when the small number of people alleged to reside in the home is taken into consideration) are often the keys to discovering a hydroponic operation. Because of this, electricians and power companies are another important resource for the police. FPL can monitor spikes in energy use and report unusually high electric bills to law enforcement agencies. In addition, the very electricians who are paid by growers to bypass electric meters are often informants.

In conjunction with other methods of investigation, police officers have begun utilizing what is known as "knock and talks" at suspected grow houses, wherein officers attempt to speak with homeowners or renters without warrants. Aside from the factors previously mentioned that generally alert law enforcement to the existence of a grow house, officers have been known to wait outside of hydroponic stores and follow those who exit the stores home. Once they have this knowledge to tip them off, officers will either undergo long-term surveillance of suspected grow houses or immediately initiate the knock and talk. If they do not have sufficient evidence to obtain a warrant, they can and will try to gain access to a house by knocking on the door and simply asking whoever answers the door if the officers can come inside to talk for a minute. People who are not fully aware of their rights are often caught in this trap, either revealing their operations by cracking open the door enough for the officers to see inside or by letting the officers inside themselves. Once officers have either witnessed the operation first hand or obtained sufficient evidence to obtain a search warrant, they may enter the suspected grow house and seize and destroy all hydroponic equipment found, so long as photographs or videos of the evidence are taken. Videos and pictures of the evidence are now allowed to replace the actual evidence itself in courtroom presentation, making preservation of the evidence unnecessary pursuant to Florida Statute 893.10. Police officers who destroy the equipment are immune from civil liability.

Possession of cannabis (less than 20 grams) is a misdemeanor in the State of Florida. However, such charges can quickly transform into felonies when hydroponic operations come into the picture, under Florida Statute 893.1351, the Marijuana Grow House Eradication Act. Until recently, Florida law charged growers whose operations had more than 300 plants with a drug trafficking charge. Now, only 25 plants are necessary to constitute prima facie evidence that the cannabis is intended for sale or distribution. A grower with 25 plants can be charged with a second degree felony which carries with it a maximum sentence of 15 years in Florida State Prison. Grow houses that are found to have been the homes of a child further transform those same charges into first degree felonies, with a maximum sentence of 30 years in Florida State Prison. Florida's new grow house laws are even tougher than the Federal standard, which allows up to 100 plants before a trafficking charge can be pursued. Florida statutes, specifically section 893.135, define marijuana plants as seedling or cuttings with noticeable "root formation." Thus, even dead or already-harvested cannabis plants are figured into the total plant count by law enforcement. In addition to prison time, fines included with such charges can be in the tens of thousands, and they can be enhanced if the accused is a prior offender.

Other Ways Grow Houses are Discovered:
•Long-term police surveillance
•Hydroponic Store surveillance
•Anonymous tips
•Tips from "friends" and/or significant others
•Reports from FPL
•Landlord tips
•Knock and Talks
•Search Warrants
•Operations in plain view

Key Grow House Indicators:
•Spikes in power usage
•Electricity bypass
•Unusual warmth around the house
•Odors from the house
•Reports of unusual activities
•People coming and going
•Uncommon amounts and types of trash
•Added electrical equipment
•Exhaust emissions

For the Florida statute chapter regarding marijuana cultivation and penalties, see §893.135, Fla. Stat. (2010).

Copyright (c) 2010, Law Office of Roger P. Foley

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

Wednesday, December 1, 2010

Law Updates for November 26, 2010

Fernandez, 35 FLW 2549, 3rd DCA, Exclusionary rule does not apply to knock and announces cases, certify conflict with Coble 18 So. 3d(2nd DCA) to Florida Supreme Court. Does Florida statutory knock and announce provisions apply such that the exclusionary rule would apply.

Johnson, 35 FLW 2554, 3rd DCA, Prior testimony - The Court erred in excluding witness testimony from a prior trial where defense was unable to locate the witness to testify in second trial and witness testimony was relevant to claim of self defense.

J.T., 35 FLW 2559, 4th DCA, BB Gun - Deadly Weapon, for the state, cites the law, seems to be important that the BB gun was placed in evidence.

Holley, 35 FLW 2560, 4th DCA, Trial court reversibly erred in limiting defense counsel cross exam of state witness about her failure to appear for defense deposition and response for rule to show cause issued by trial court, where information was relevant to show her motive, bias, and lack of trustworthiness.

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

Monday, November 29, 2010

Plea Bargains in Criminal Cases – Do You Really Want to Plea?

Less than 8% percent of criminal cases go to a jury trial. Many argue that the percentage of individuals who actually make it to a jury is less than five percent. But does it really matter what the number is when we are talking about such low percentages?  Why are defendants not exercising their Sixth Amendment right to a jury trial? The United States judicial system still operates under the ideal that the accused are innocent until proven guilty; so why are defendants accused of crimes relinquishing their given right? While it’s possible that the police are doing a wonderful job of investigating crimes and that everyone arrested is actually guilty of the crime charged, I don’t buy it and neither do you.
So why is this phenomenon repeatedly occurring? I think there are several likely reasons causing criminal defendants to forfeit their rights to a jury trial, but today I’m going to discuss two.
1. Police say what they need to say in order to get the conviction.
Do police officers lie? Yes. Why? I don’t know. But if I had to guess, I would say that it probably has to do with their frustration with the system. Police officers have to deal with individuals at their worst every day and are affected by the negativity. They see these perpetrators go to court, take a deal, and get slapped on the wrist with probation or a fine. Is that justice for the victims? Is that justice for the officers who put their lives on the line for the benefit of society? If you attempt to stand in an officer’s shoes, it is not difficult to see how an officer can feel that the high risks they assume are not fairly balanced against the punishments, or lack thereof, that defendants often receive. Through an officer’s eyes, defendants commit serious crimes and usually wind up pleading only to probation, only to be out on the street again ultimately putting the officer at risk once more. Combine that knowledge with normal daily stresses of the job, and you have an officer who takes justice into his/her own hands, altering testimony, saying what needs to be said in a police report so that the case never goes to trial, the defendant pleads guilty, the State gets the conviction, and the defendant goes to prison.
The career criminal will eventually commit enough criminal acts that he/she will score mandatory prison – finally paying their debt to society. … Right? Maybe. But the problem with this type of “justice” lies with the first time offender. The suspect who is in the wrong place at the wrong time. The guy who has the wrong friend. That guy, maybe you, who gets charged with a crime by an officer who embellishes the truth to get a conviction. Suddenly your life is ruined by the possibility of prison or the criminal record you will receive by a plea bargain to a probationary period. The officer has made the facts look unbeatable, the court system scares you, and so you forfeit your right to a trial by taking a plea. You see no other way out, and now your life is forever changed. That is one reason I believe defendants are throwing away their right to trial, their day in court, their opportunity to be heard, and taking the safe route: because officers have made defending a criminal case seem impossible to defendants.
Why else do defendants forfeit their right to a jury trial?
2. Inexperienced, greedy, lazy Criminal Defense Lawyers.
Walking into the court room every day of the week allows me to watch and critique other criminal lawyers. Who am I to critique others? I’m nobody famous. But I am a guy who took an oath to do my best for my client and I’m the guy writing this blog, so I will call it as I see it. The numbers may not be as low as the numbers of defendants avoiding jury trials, but when looking around the court room it appears that maybe 10% percent of the criminal defense bar actually cares about the system. Sure, all attorneys sit around discussing war stories, convincing themselves and others that they care. But the truth is that they sleep like babies when their clients plea to a crime and/or go to prison… especially when they have been paid their entire legal fee. How is it that 90% percent of criminal defense attorneys drive exotic cars, have $500-$1000 shoes, have multiple houses, but plea bargain nearly 100% percent of their cases without ever taking a deposition? How can they recommend to their clients that they plead guilty or no contest on cases that can be won by doing actual work; by taking depositions, by ordering 911 and dispatch tapes, by going to the scene of the alleged crime, and by talking to their client and witnesses? How?
It’s easy. Defendants have no idea that these lawyers plea bargain every case instead of actually fighting the fight. Criminal defense lawyers take advantage of the fact that the Florida Bar does not allow them to advertise their wins; if no one is actually counting, then attorneys can easily embellish to their clients how great they are prior to getting paid. Once they have their client’s money, the future becomes bleak for the client. Instead of taking depositions, looking for mistakes and constitutional rights violations, and doing actual work to represent the client to the best of their ability, the attorneys offer their professional advice that a plea is inevitable and the best choice, as contrasted against the possibility of prison. There is rarely a mention of the client being innocent until proven guilty. Instead of fighting the case and making the State prove guilt beyond and to the exclusion of all reasonable doubt, these attorneys are quick advise their clients to admit guilt (sometimes when they aren’t even guilty) and sustain convictions that will, in many cases, forever change the clients’ lives. All for the sake of getting paid and quickly getting rid of cases. Defendants take the plea because they trust their lawyer’s advice; they believe that the lawyer is looking out for their best interest. Unfortunately it seems that in actuality, many defense attorneys are looking out only for Number One.
It is sad to see that so many attorneys lack the enthusiasm necessary to do their job properly, even when paid. Did anyone get the memo that pleading Guilty or No Contest should be avoided, if possible, because of its actual effects on the client’s life? Not only can a plea eliminate future possibilities for the defendant, such as the ability to gain employment, rent an apartment, gain admission to a university, but a plea also carries with it numerous negative aspects, such as a criminal record, punishment, and possible future harassment or harsher treatment by police. When positive opportunities cease to exist and are replaced by negative consequences in a person’s life, the individual deteriorates and so does our society.
Whether the client actually committed the crime is irrelevant in this discussion. A defense attorney is supposed to fight for the defendant’s rights, as all of their billboards and advertisements so ironically say.
If you’re a criminal defense attorney and you disagree, re-examine yourself and think about the last case you plead without taking a deposition. Talk is cheap. Take a deposition and work on the case. Don’t plead every case. Force the State to prove your client guilty. When police make mistakes, when prosecutors make mistakes, those mistakes should be revealed and the defendant should walk away. Once enough people walk, the police and State will have to work harder to do their jobs right; they will be held to a higher standard and will be educated on the law. Don’t devalue our society by being lazy and taking the easy plea – take some pride by looking in the mirror at who you really are, not by what you hope is portrayed to people as you disguise yourself as successful with your fancy suits and expensive shoes. Try earning them before wearing them; it makes you feel a lot taller.
If you’re a police officer and you disagree, think about the last report you wrote, or the last time you testified. Was everything negative, or did you actually talk about the weaknesses of the arrest, or what the defendant did well during their roadside sobriety exercises?
If you’re a member of the general public, then I say: you’re welcome. Because it is better that you are informed.

Copyright (c) 2010, Law Office of Roger P. Foley

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

Wednesday, November 24, 2010

The Criminal Process: A Briefing

The criminal justice system can be very complex, extremely difficult, and intimidating without a guide to navigate you through it. The following is a brief explanation of the various steps in a criminal case.
Arrest: The criminal process usually begins when the police have begun a criminal investigation and subsequently take you into custody. “Custody” can mean one of two things: either you were physically arrested (handcuffed, taken to jail, fingerprinted, etc.), or you were served with a written Notice to Appear in lieu of physical arrest. Either way, you are considered arrested and this ultimately means that the government will formally charge you with alleged criminal violations.
First Appearance: After the initial police investigation and arrest, the first court date in a criminal case is First Appearance. During First Appearance, a person who has been arrested will stand in court before a Judge or Magistrate for the first time. That judge/magistrate will determine if there was probable cause for the arrest. If the judge finds that there was probable cause, he or she will set a bond. It is often beneficial to have an attorney present at First Appearance because an attorney can negotiate or argue on your behalf for a lower bond amount. Without an attorney present, the judge/magistrate will set the bond at his or her discretion. From there, the case will go to the State Attorney’s Office.
Case Filing: After the first appearance, a criminal case is then sent to the Case Filing Division of the State Attorney’s Office. There, an assistant state attorney is assigned to review the basic facts of the case and determine how charges should be filed. In making this decision, the case filer reviews police reports and witness information. Based on this, he or she ultimately decides whether the arrest charges should remain the same, be increased, decreased, or dismissed (also called no information). Often this is a critical time for a criminal defendant. If a person suspected of a crime retains an attorney quickly, that attorney may be able to speak with the case filer and influence his or her filing decision by discussing important factors in the case, such as mistakes made by law enforcement and important facts that may not be given in the police report. If the case filer decides to go forward and file the charge against you, despite your attorney’s best efforts, the next step is Arraignment.
Arraignment: Arraignment is a court date for the formal reading of the charges that the case filer has set forth in the charging document (called the Information). Arraignment is also where you will plead one of three ways: Not Guilty, Guilty, or Nolo Contendere (Latin for No Contest).  Unless you want to waive your rights, get your case over with immediately, and you don’t care about being convicted, you will plead Not Guilty. Remember, you are innocent until proven guilty. Not Guilty pleas are entered when you are innocent, when there is insufficient evidence to prove guilt, when you are uncertain how to plea, or when you want to demand your right to a trial. If you hire an attorney before your arraignment, he or she will generally enter a notice of appearance, written plea of not guilty, and request for jury trial for you so that you do not have to go to court on that date. After a formal plea of Not Guilty is entered, the next court date will be set.
[Note that just because your attorney requests a jury trial does not mean you have to go to trial; it is merely posturing to put you on the path that will allow you to get the most information on your case. No one wants to go to trial, and anyone who is eager to go to trial is generally a fool. Requesting a jury trial is merely a formality that will allow you to get Discovery, make arguments, and fight your case as far as you can before even getting to trial. You may wind up not going to trial at all, but in any event, the formality of requesting is generally necessary.]
Discovery: After an attorney signs onto a case, he or she will demand Discovery from the State Attorney. Discovery is essentially all of the evidence the State has available to use against you in your criminal case. It is your right to examine discovery if you are going the trial route, and it includes written documents, police reports, pictures, witness statements, video recordings, audio recordings, etc. Generally, Discovery documents take 60 to 90 days to obtain. Once an attorney is able to examine the discovery, he or she will be able to see who all of the witnesses against you are, take depositions and find out what the witnesses have to say, investigate your case, and form a defense strategy. This is also the time during which your attorney will file applicable motions. Perhaps your Constitutional rights have been violated by an unlawful search and seizure. An experienced attorney will know to file a motion to suppress evidence obtained in violation of your rights. Or, maybe the State does not have sufficient evidence against you and will be unable to prove the elements of the charges. A skilled attorney will know to file a Motion to Dismiss and argue that your case should be thrown out all together. If the motions are successful, odds are your case will be over. If the motions are ultimately unsuccessful, then you will have to decide whether you want to negotiate a plea agreement with the State or take your case to trial.
Plea: If you choose not to go to trial, your attorney will negotiate a plea agreement with the State Attorney that will include the sentence to be imposed. You will ultimately go to court for a Plea Conference and change your plea from Not Guilty to either Guilty or No Contest.  Although the Judge is not required to accept the State Attorney's agreement, most Judges will honor negotiated plea agreements. At this point, you will have to comply with whatever sentence has been negotiated or is imposed, and your case will be over. It is important to note that there are various alternatives in sentencing that may include Pretrial Diversion, Pretrial Intervention, Drug Court, and Probation. Each of these programs has limitations and requirements.  It is extremely important that you seek out an attorney who is familiar with these programs as well as which Judges may or may not look favorably upon these options.
Trial: If you choose to go to trial, your attorney will fight your case either before a Judge or before a Jury of your peers. [Note that you have the right to a Speedy Trial. This means that if you demand Speedy Trial and do not waive your right to it, the State will have to bring you to trial within a certain time period (90 days for a Misdemeanor, or 175 days for a Felony). However, most cases are benefited by waiving the right to a speedy trial to allow an attorney more time to defend the case.] If you are acquitted during Trial by a Judgment of Acquittal or you are found Not Guilty by the Judge or Jury, your case is over and you are free to go. You cannot be retried under Double Jeopardy protections. If, however, you are found guilty, there will be a Sentencing Hearing.  This will give you, your attorney, and any other interested persons the opportunity to speak on your behalf; this is the time to present witnesses who will testify as to your character.  For the purposes of sentencing, the Judge may order a Pre-Sentence Investigation into your background and circumstances. At the end of the hearing, after the Judge has considered everything put before the court, the Judge will impose a sentence. Hopefully, though, you will be acquitted during trial and will not ever have to worry about a sentencing hearing.
Appeal: A person convicted of a crime has the right to appeal his or her conviction. During the appeal process the Judge may allow your release on bail pending the outcome; however, the Judge will only do this if he or she believes that the appeal has merit and that you will reappear in court.  An appeal must be filed within 30 days of sentencing, but should be filed as soon as possible.
Although this explanation doesn’t cover everything you will encounter in the criminal justice system, hopefully it gave you a basic understanding of what you can expect. If you have any questions, do not hesitate to call an attorney to guide you through the process.

Copyright (c) 2010, Law Office of Roger P. Foley

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

Tuesday, November 23, 2010

Law Updates for November 19, 2010

Riggins, 35 FLW 2480, error to deny JOA - Charge of operating unregistered vehicle where the sole evidence presented by the state was officer's hearsay testimony that he ran VIN through database on his in-car computer and determined that the car was not registered properly.  Testimony did not fall "within absence of record or entry" exception to hearsay where officer did not perform a diligent search that failed to disclose a record that should have been made and preserved.  State failed to call witness who could have established a foundation. Officer only relayed the date written on the expired tag and the date of the traffic stop with nothing more.

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

Friday, November 19, 2010

Law Updates for November 12, 2010

Quick, 35 FLW 2451, 4th DCA, Jury instructions - Error to deny def's request for jury instruction on the affirmative defense of lack of knowledge that substance he possessed was cocaine where he testified that he did not know the glass pipe in which cocaine residue was found contained cocaine at exact time of his arrest. Error not harmless where lack of knowledge of what the pipe contained was def's sole defense.

M.L. 35 FLW 2456, 3rd DCA, Officer's warrant-less of a seizure of a pipe with residue. Officer observed pipe partially sticking out of a bag on the floor near where juvenile was sleeping. Was not justified under the plain view exception. State failed to present evidence that it was immediately apparent to officer that partially concealed pipe in the bag contained evidence of a crime or illegal paraphernalia, or that the officer, prior to seizure, had probable cause to believe that the pipe was evidence of criminal activity.

Bennett, 35 FLW 2461, 2nd DCA, Trafficking in Cocaine-Constructive Possession - Drugs found in living room and bedroom of cottage, some of it in plain view, where evidence failed to show def had control over the premises and no independent proof that the def had dominion and control over the contraband. Fact that def's drivers license and a letter addressed to him were found on or in cardbox box containing men's clothing and sandwich bag containing drugs insufficient to establish dominion and control over contraband where evidence did not show the cottage was def's residence or suggest how many others have visited or used cottage and did not prove who owned the clothes in the open box.

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

Tuesday, November 16, 2010

Law Updates for November 5, 2010

Urban, 35 FLW 2416, 5th DCA, Youthful Offender - Trial court applied wrong version of statute and is refusing to consider Y.O. for def who was under age 21 on the date of the crimes, but over 21 at the time of the sentencing. Statute at time of the offense applies.

Post-Graham, Manuel, 35 FLW 2417, 2nd DCA, Attempted First Degree Murder with Firearm - Sentence of life in prison without possibility of parole constituted cruel and unusual punishment under the 8th Amendment where def was juvenile when he committed the non-homicide crime at issue.

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

Depositions and DUI

Driving Under the Influence charges are generally misdemeanors, which means that the ability to depose witnesses is not guaranteed. In order to be able to take a misdemeanor deposition, Florida Rule of Criminal Procedure 3.220(h) requires that "good cause" be shown to the judge. To determine if there is good cause to order depositions, the judge will consider the consequences to the defendant, the complexity of the issues involved, the complexity of the witness' testimony, and the other opportunities available to the defendant to discover the information sought by deposition. Some jurisdictions make it difficult to take depositions in misdemeanor cases, which means that lawyers have to be creative in finding other means to get the information. But, when a deposition is permitted, it should be taken.

Depositions are extremely important resources in the defense of a criminal case. Often, a simple question asked in a deposition will lead to the discovery of information that the defense attorney and prosecutor did not know existed, such as an additional police report, or witnesses that were on scene but not noted. Depositions show the defense lawyer what to expect the witness to say at a later court date and/or provide fodder to impeach the witness if his story later changes. Depositions also provide valuable insight to possible flaws in the case that may not have been otherwise revealed through the standard discovery documents. Examining these flaws can help a case by either revealing grounds for motions to suppress evidence or motions to dismiss the case based on a violation of a Constitutional right, or by simply showing the prosecutor the weakness of the case and giving a lawyer grounds to argue that the case should be dismissed or broken down into lesser charges.

Unfortunately, many attorneys do not take depositions in misdemeanor cases. It is possible that this is due to their feeling that depositions in misdemeanor cases will not reveal anything new or believing that they are a waste of time. However, depositions are a great tool that is extremely under-utilized in the current legal arena. Attorneys who do not take depositions are missing out on a wealth of information that they may not even realize exists in each case. More often than not, an officer's answers in a DUI deposition will reveal extremely helpful defense issues such as Taylor warnings not being read, simple improper phrasing by an officer that turns a request into a command, invalid consent for searches, and numerous other grounds for suppression that may never have otherwise crossed a lawyer's mind when reviewing a case.

Hiring an attorney who will work hard to get all of the information available is important in successfully defending against criminal charges. Although depositions are not always necessary, a case cannot usually be properly defended without digging deep, going outside of the box, and searching for the answers that aren't necessarily obvious at first glance. Depositions are just one weapon in a defense attorney's arsenal, but they can be one of the deadliest if used properly. Defense strategies are always formed more completely when all of the information available is laid out for the attorney to see. Why wouldn't an attorney use such a great tool that is available at the simple filing of a motion?

Copyright (c) 2010, Law Office of Roger P. Foley

Tuesday, November 2, 2010

Law Updates for October 29, 2010

R.O., 35 FLW 2320, 3rd DCA, Possession of Cocaine - Trial judge departed from neutral arbiter and became advocate for prosecution when he questioned juvenile regarding his possession of cocaine after defense counsel completed his direct examination of juvenile without questioning juvenile regarding cocaine possession. Remand for new trial before a different judge

Fudge, 35 FLW 2322, 3rd DCA, Vindictiveness - Where state made the plea offer to dispose of all 3 cases with a sentence of twenty five years with mandatory ten on the condition the def would not appeal his conviction in a jury verdict case, and trial court sentenced him to life after def refused to give up right to appeal in jury verdict case. Sentence was vindictive.

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

Tuesday, October 26, 2010

Law Updates for October 22, 2010

L.O., 35 FLW 2253, 4th DCA, Officer dispatched to armed robbery in progress by BOLO described suspects simply as two black males, one wearing a black shirt and shorts, and other wearing a black shirt and red pants. Did not have founded suspicion to detain juvenile, who was wearing long black shorts and a black shirt, and walking alone down the street in a black neighborhood in the middle of the afternoon, outside the perimeter of the crime scene. Juvenile not required to give his name since not lawfully detained. Error to deny JOA for Resisting Arrest without Violence.

Munoz, 35 FLW 2263, 3rd DCA, Self-defense - Trial court did not abuse discretion by prohibiting the defendant from introducing reputation evidence in the community for carrying firearms unless def could first demonstrate that, prior to the shooting, he was aware of victim reputation in the community for possessing firearms.

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

Thursday, October 21, 2010

Law Updates for October 15, 2010

Austin, 35 FLW 2205. 1st DCA. general behavior patterns of drug trafficking - The discovery of cocaine in rental vehicle was driven by defendant and rented by wife. Error to allow highway trooper to testify that it was a practice of drug dealers to use vehicles rented in someone else's name to transport drugs. Error not harmless

Flores, 35 FLW 2209, 3rd DCA, Six year cap for VOP/VCC does not apply even when new charges are dismissed or nolle prossed - Conviction in the new case need not precede sentencing on the
probation violation as long as the court determining the violation has sufficient evidence that def committed the new offense, 4th DCA language cited in this opinion according to the 3rd DCA is dicta. see Rogers, 972/1017(4th DCA 2008)

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

Wednesday, October 13, 2010

Law Updates for October 8, 2010

McFadden, 35 FLW 556, Fla, Discovery, oral or unrecorded witness statements - State is not required to disclose to def an oral, unrecorded witness statement if that statement does not materially change a prior recorded statement previously provided to the def by the state. Here the oral statement occurred before the def's sister made any recorded case related statements.

K.J.F., 35 FLW 2170, 1st DCA, A juvenile who has committed a qualifying offense does not qualify a as a sex offender where adjudication of delinquency has been withheld.

Bruce, 35 FLW 2185. 5th DCA, Similar Fact Evidence - In sex battery case, trial court did not err in admitting evidence of def prior sexual battery of a different victim. The evidence demonstrated a clear pattern of conduct, and was relevant to corroborate the victim's testimony and rebut def's claim of fabrication.

Jimenez, 35 FLW 2186, 5th DCA, Def is not entitled to be discharged pursuant to 3.191 when the state filed an information within the speedy trial period, but does not notify the def until after the speedy trial period expires. CONFLICT CERTIFIED, cites other case.

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

Tuesday, October 5, 2010

Law Updates for October 1, 2010

Wilson, 35 FLW 2116, 4th DCA, Hearsay exception: Former testimony of unavailable witness - No abuse of discretion in ruling the def failed to establish unavailability of witness under 90.804 so that witness testimony at original trial could be used at the second trial where, although witness was demonstrably unavailable as a witness, def did not subpoena the witness for the second trial and simply told him where to appear and relied on oral promise that the witness would be there, although similar promise had been broken before.

Hicks, 35 FLW 2118, 4th DCA, Discovery violation: Richardson hearing not conducted. Error where it failed to list detective as a witness to a particular statement until the day of trial, error not harmless where the def was alibi and mistaken ID and this detective testimony contradicted the testimony of three alibi witnesses.

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

Friday, October 1, 2010

Law Updates for September 24, 2010

J.M.P., 35 FLW 2072, 4th DCA, error to deny juvenile JOA for dismissal of the charge, which was based on juvenile bringing a BB gun to school, where the state failed to present evidence that the BB gun at issue fit within the parameters of the statute which juvenile was charged with violating, 790.115(2).

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

Friday, September 24, 2010

Law Updates for September 17, 2010

Harper, 35 FLW 2009, 3rd DCA. Limitation of actions - The initial info was filed within the statute of limitations, however the amended charge added fleeing and eluding filed outside of statue of limitations. The new charged broadened and substantially amended original charge and added a new and distinct charge with different elements. Amended info was not a continuation of the timely filed information, not preserved for appeal court ruled ineffective counsel on the face of the record.

Ingraham, 35 FLW 2021, 4th DCA, Speedy trial recapture period - State is entitled to the recapture period if the re-file is within the natural speedy period even if the client does not receive notice for the re-file as long as the state/clerk attempts to serve, case-by-case factual determination. Here state attempted to notify def of re-file before speedy period expired, clerk's notice of arraignment sent to address in the file which the def originally gave at the time of the arrest and the client had a new address which he did not change.

Cooper, 35 FLW 2029, 4th DCA, Hearsay, business records exception - Trial court did not abuse discretion in allowing Verizon store manger to testify how the wireless company maintains its business records and in admitting phone records into evidence since the store manager had training and experience in maintaining business and billing records, even though he was not individually responsible for maintaining the business and billing records.

Hanks, 35 FLW 2032, 2nd DCA, Error to give the jury principal instruction where the def was only present and no evidence def aided the co-def in aiding and abetting in the beating up of the victim. Error compounded by closing argument that def bursting into victim's RV with other individual "if nothing else" supported conviction as principal.

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

Thursday, September 16, 2010

Law Updates, September 10, 2010

Alleyne, 35 FLW 1971, 4th DCA, Possession of Marijuna with Intent to Sell - Circumstantial evidence was insufficient where evidence did not exclude reasonable hypotheses of innocence that the marijuana was for personal use.

T.D.W., 35 FLW, 1972, 4th DCA, state failed to establish element of robbery charge because it presented no evidence to negate juvenile's testimony that he had good faith belief that he was the owner of the cell phone which was the object taken during the robbery. Cell phone is type of property that claim-of-right defense applies.

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

Thursday, September 9, 2010

Law Updates for September 4, 2010

Shenfield, 35 FLW 479, Fla., ex post facto laws - application of 948.06(1) amendment which provides for tolling of a probationary period upon the filing of an affidavit alleging a Violation Of Probation and following issuance of a warrant, a warrant-less arrest, notice to appear to def placed on probation prior to the change in the tolling law is not ex post facto.

Adderly, 35 FLW 1905, 4th DCA, trial court improperly admitted evidence four months after the charged offenses where def gave the police a false name and ran whether the state failed to establish a sufficient nexus between flight and charged offenses, aggravated assault on person 65 years of age or older, cites cases

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

Thursday, September 2, 2010

Law Updates for August 27, 2010

Martin, 35 FLW 1876, 4th DCA, Alibi witnesses. Trial court abused its discretion in excluding defendant's two alibi witnesses under rule 3.200. The defense was not required to provide state with the alibi witnesses when the state did not comply with 3.200, written demand for notice of the alibi. The defense did not have to comply with 3.200 because they participated in discovery and thus were required to supply the state with defense witnesses under Rule 3.220(d)(1)(A). Trial court was required to conduct a Richardson hearing for this discovery violation, failed to do so. Not harmless beyond a reasonable doubt. New Trial.

Walton, 35 FLW 1895, 2nd DCA, Where evidence established that all three occupants of the vehicle had been drinking and showed signs of impairment, and that vehicle ran a red light, collided with another vehicle, and caused serious injury to the occupant of the other vehicle, it is not necessary for the state to prove the identity of the driver to establish that DUI-SBI had occurred. An interesting corpus delicti discussion.

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

Friday, August 27, 2010

Law Updates for August 20, 2010

Ramsammy, 35 FLW 1824, 4th DCA, Murder 2 reversed should have been a Judgement of Acquittal. Interesting opinion.

Diaz, 35 FLW 1835, 4th DCA, trial court committed manifest error by refusing to dismiss potential juror for cause when there was reasonable doubt about impartiality and not rehabilitated for further questioning. Prospective juror's silence when asked if anyone could not do their job in determining whether a crime was committed and whether def committed the crime did not erase reasonable doubt as to impartiality created by her earlier equivocal response that it would be difficult and not sure if could be fair and impartial. New Trial required

Akien, 35 FLW 1836, 4th DCA, could admit a victim, 17 year old, 911 call in a rape case as excited utterance to hearsay after 35-40 minutes still under stress of excitement and not time to reflect yet.

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

Tuesday, August 17, 2010

Law Updates for August 13, 2010

E.J., 35 FLW 1728, 4th DCA, vehicle passenger consent - Passenger did not consent to pat down by spontaneously turning and placing her hands on the top of the car, and spreading her legs, after she exited the vehicle at the request of the officer for an inventory search where the driver was arrested for DUI. Passenger merely acquiesced to police authority. The passenger was 14 year old juvenile and first encounter with the police. Officer did not requested consent and juvenile copied what the arrested driver was doing. Frisk not supported by reasonable suspicion as the police had no information that the def was armed and dangerous.

Wicklow, 35 FLW 1734, 4th DCA, Prosecutorial Misconduct - New trial cumulative effect elicited sympathy for the victim, suggested improper defense tactics, disparaged defense counsel, and improperly bolstered credibility of key witness. The combined effect of this improperly led to a conviction.

Beahan, 35 FLW 1760, 1st DCA, suppress evidence - No reasonable suspicion that the def was impaired at the time of the traffic stop, therefore subsequent search of the vehicle was unlawful. Evidence seized from the vehicle should have been suppressed. Neither fact that def was driving slowly in residential neighborhood, fact he stopped a few times on the side of the street, made improper u-turn, nor fact that took place in area where drug transactions are known to take place is sufficient to support decision def was driving his car impaired.

Kates, 35 FLW 1795, 1st DCA, Resist ofc without violence - Error to admit detailed testimony regarding an uncharged drug transaction to describe events leading up to the charged offenses. Was not necessary for jury's understanding of officers encounter with the defendant.

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

Friday, August 13, 2010

Law Updates for August 6, 2010

Nicholas, 35 FLW 1668, 2nd DCA, Trafficking in cocaine,constructive possession - Defendant's statement that he cooked and sold unknown quantity of cocaine at an unknown time and that he had sold large quantities of drugs in the past were not sufficient to establish constructive possession of large quantity of cocaine found in co-conspirator's apartment.

Stone, 35 FLW 1687, 4th DCA, State cannot appeal ruling granting JOA by the court after the jury is sworn but before the verdict is rendered. State's failure to present evidence after being given an opportunity to do so, and not a defect in the indictment or other ground unrelated to factual guilt or innocence, was not an appealable order dismissing an indictment. Appeal would have violated def's double jeopardy rights.

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

Tuesday, August 3, 2010

Law Updates for July 30, 2010

Ferguson, 35 FLW 1612, 2nd DCA, Loitering & Prowling - Officer did not have probable cause to arrest the defendant, although engaged in unusual behavior. Defendant stopped when asked to do so by the officer, provided proof of identity, and where he lived, and explained he was in the area to visit a friend. The friend confirmed identity and said not unusual for him to visit her. Suspicious actions do not effect determination of probable cause. To believe Loitering & Prowling that offense must be complete before any police action occurs.

Pulcini, 35 FLW 1620, 4th DCA Unlawful sexual activity with minors, other crimes, wrongs or acts - Abuse of discretion to admit collateral crime evidence relating to acts that occurred 19 or 20 years before and involved a twelve year old child where collateral acts did not share sufficient points of similarity with charged crime to be admissible. Error not harmless where case boiled down to credibility of the victim's testimony contradicted by two defense witnesses and uncorroborated by any physical evidence, and state highlighted the improperly admitted evidence in closing argument.

Johnson, 35 FLW 1628, 4th DCA, Lewd or Lascivious battery - defendant was 37 and 13 year old girl - Trial court erred by admitting evidence the victim twice attempted to commit suicide after relationship was revealed and defendant was arrested. Error not harmless probative value outweighed by unfair prejudice. New trial.

*******, 35 FLW 1652, 2nd DCA, Pharmacy records - Trial court applied wrong statute when it suppressed prescription records obtained from pharmacy without subpoena or consent of patient. 456.057 applies to health care practitioners and excludes pharmacies and pharmacists. Standing error to fail to address state's claim that defendant did not have an expectation of privacy in prescription records as they were fake. On remand court should make a ruling of reasonable expectation of privacy in the prescriptions.

T.T.N, 35 flw 1653, 2nd DCA, Police stop outside of his jurisdiction - Municipal officers initiated a traffic stop, driver fled on foot, remaining passengers drove away in the vehicle. Fleeing driver apprehended and arrested, officer did not have jurisdiction to initiate an investigation at the vehicle's registered address in a different city. No evidence that juvenile was involved or about to be involved in crime at the time the officers arrived at the address of the vehicle's registered owner. Juvenile's attempt to run away was not sufficient to justify an investigatory stop. Trial court erred in stating that even if stop was unlawful, tube of cocaine dropped when officer approached was voluntarily abandoned. Officer's testimony showed that child submitted to the officer's authority after he was ordered to show his hands, and tube fell from juvenile's body.

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

Friday, July 30, 2010

Law Updates for July 23, 2010

Ray, 35 FLW 1552, 4th DCA, vehicle stop - No reasonable suspicion that def had committed a crime at the time of the traffic stop. Officer monitoring the neighborhood based on recent complaints of drug dealing observed def drive up and stop in the middle of the road and engage in a hand-to-hand exchange with unknown adult male. Traffic violation that occurred after the emergency lights were activated not a basis for finding the stop was lawful. Evidence subsequent to the stop suppressed.

Williams, 35 FLW 1554, 4th DCA, Severance - Error to fail to sever GT of a firearm charge from the manslaughter charge that occurred the next day based on an alleged accidental shooting of his friend. Collateral crime evidence, presumptively harmful and prejudicial, outweighs the relevancy of the jury hearing the GT charge.

Ward, 35 FLW 1156, 4th DCA, Error to give the jury instruction regarding inference to be drawn from possession of recently stolen property, where victim could not positively ID the def as one of the two assailants at the scene of the crime, and where stolen property was never found in the def's possession.

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

Friday, July 23, 2010

Law Updates for July 16, 2010

Koch, 35 FLW 1483, 2nd DCA, Fleeing and eluding a police officer - Error to fail to instruct jury on permissive LIO of refusal to obey officer's lawful order on ground that 316.072(3)(obedience to police and fire department officials) that the statute only applied to emergency situations. Trial court was requested to instruct the jury on offense where elements were alleged in information and evidence of those elements were presented at trial.

Kiss, 35 FLW 1506, 4th DCA, DSP/GT - Trial court committed fundamental error by failing to instruct the jury, pursuant to 812.025, that it could not return a guilty verdict on both charges of grand theft and dealing with stolen property when charges arise in connection with one scheme or course of conduct. Trial court did not properly cure such error by adjudicating the def guilty for DSP and discharge to the GT. Remand for new trial rather than reversing lesser offense conviction and affirming greater. Conflict certified.

Tamulonis, 35 FLW 1535, 2nd DCA, Officers not required to procure a search warrant or subpoena prior to obtaining controlled substance records from pharmacies. Error to grant motion to suppress patient profiles and prescriptions obtained from pharmacies without a subpoena or warrant. Statute, 893.07(4) requiring pharmacists to maintain controlled substance records, including prescription records, and to make records available for inspection and copying by police does not violate constitutional privacy provisions under the Florida constitution, Carter 23 So. 3rd 798(1 DCA 2009).

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

Wednesday, July 14, 2010

Law Updates for July 9, 2010

Caldwell, 35 FLW 425, Fla. Supreme Court, Miranda. An officer's reading of Miranda during a otherwise consensual search does not always transfer the consensual encounter into an investigatory stop. Reading of Miranda may add to the coercive nature of the encounter sometimes and must be decided on a case by case basis. In this case does not convert the consensual encounter into a seizure. Def not seized before voluntarily entered a police vehicle; confession not a product of an illegal detention.

Gomez, 35 FLW 432, Fla. Supreme Court, Forefeiture, Probable Cause. Seizing property initially does not require that the owner knew, or should have known after reasonable inquiry, that property was employed or likely to be employed in criminal activity.

Tindall, 35 FLW 1449, 4th DCA, Error to adjudicate def guilty of two counts of aggravated kidnapping where charges were based on movement of child victims of sexual battery from front door of the house to a bedroom where the sexual battery occurred and victims were held in the room for as the long as the crime occurred and then released.

Hill, 35 FLW 1455, 3rd DCA, Consent-Investigatory stop. Where one ofc positioned his vehicle directly in front of the def and pointed the vehicle's spotlight on the def, another ofc approached def on foot in a manner that indicated a sense of urgency, and immediately thereafter two other officers joined at the scene. Investigatory stop and not a consensual encounter, no reasonable suspicion of criminal activity, def's consent to search during the stop while the ofc retained his license to run a warrants check was not voluntary.

Lowe, 35 FLW 1463, 5th DCA, Lewd and Lascivious exhibition. Def's actions of placing a dildo in his mouth in the presence of a seven year old child does not constitute sexual activity within the statutory definition. Definition of sexual activity in the statute does not include the simulation of oral sex with an object. Error to deny the motion to dismiss the information.

Downs, 35 FLW 1465, 5th DCA, Sexual Battery on a child, Uncharged crimes. Def was charged with digital penetration of a child. Error to admit evidence of later incidents in which the def came into the bathroom while the victim showered and touched her inappropriately. Not admissible that was inexplicably intertwined with charged crime when two years after the charged crime. Not admissible as separate crime or acts of child molestation where the def had not been given notice of evidence the State intended to offer.

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

Friday, July 9, 2010

Law Update for July 2, 2010

Gonzalez and Garcia, 35 FLW 1402, 2nd DCA, Search warrant - Facts as alleged in pc affidavit, which reference uncorroborated tip that the def's were allegedly growing marijuana and selling cocaine, failed to demonstrate reasonable probability that contraband would be found in the residence at the time the warrant was issued. Info contained in the tip was received more than 3 months before warrant issued was stale. Def possession of one gram of cocaine on her person during a traffic stop did not suggest a fair probability that the def was selling cocaine from her home. Good faith exception to warrant requirement does not apply where objectively reasonable officer would have known affidavit was insufficient to establish probable cause.

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

Roger P. Foley Named Legal Elite by Florida Trend Magazine


Roger P. Foley Named Legal Elite by Florida Trend Magazine

Fort Lauderdale, Florida - July 8, 2010 – The Law Offices of Roger P. Foley, P.A. is pleased to announce that Mr. Roger P. Foley has been named to Florida Trend magazine's 2010 Legal Elite list which recognizes the top tier of attorneys practicing in Florida as chosen by their colleagues.

Balloting for this year’s list began in October 2009, when Florida Trend invited all in-state members of The Florida Bar to participate. Announcements in The Florida Bar News publicized the ballot deadline and voting guidelines. Lawyers were asked to name attorneys whom they hold in the highest regard or would recommend to others.

The ballots were processed, checked and tabulated by Bradenton-based Outsource America and Suncoast Opinion Surveys in St. Petersburg. Each lawyer was given a score based on the number of votes received: one point for votes from within their firm or three points for votes from outside their firm. Only lawyers who are currently licensed and practicing in Florida were eligible for selection.

The list of top vote recipients was further examined using membership status and histories provided by The Florida Bar. A panel of previous Legal Elite winners, representing different practice areas in cities across the state, reviewed the selection process and the list of finalists.

The Legal Elite Award is given to less than 2% of the active, practicing lawyers in the State of Florida.

Arthur James
Law Offices of Roger P. Foley, P.A.
524 South Andrews Avenue, Suite 200N
Fort Lauderdale, Florida 33301
Ph 954-467-2946


Tuesday, June 29, 2010

Law Updates for June 25, 2010

Yaqubie, 35 FLW 1342, 3rd DCA, Immunity/Stand your ground law. Error to treat def's immunity claim as an affirmative defense and to deny motion to dismiss because material facts were at issue. Statute is true immunity provision which requires the trial court to adjudicate disputed fact issues rather than passing them on to the jury. Remand for the court to determine if def's immunity claim is supported by the preponderance of the evidence.
N.B. There is conflict in this state on this issue, and the 4th does not follow the 3rd DCA opinion. This isssue is on appeal right now to the Florida Supreme Court in Dennis v. State.

Link to the ACLU Summary of the 2009 Supreme Court Term

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

Friday, June 25, 2010

Law Updates for June 18, 2010

Vice, 35 FLW 1273, 1st DCA. Aggravated Child Abuse - error to admit testimony of def's former husband and former mother-in-law regarding their observations of the def shaking a different child 6 years earlier without injuring the child, where the evidence was not relevant to any material fact at issue in which this infant sustained injuries formerly said to characterize Shaken Baby Syndrome. Paucity of evidence; reasonable possibility that this evidence contributed to the conviction.

T.M., 35 FLW 1290, 4TH DCA, Pat down of juvenile during an investigatory stop was unwarranted and illegal. No facts or circumstances to warrant the pat down for officer who safety-stopped juvenile in high crime area at 11 a.m. based on suspicion they were unlawfully missing school or were about to commit a burglary or drug sale. Officer admitted the answers they gave dispelled any concern related to crimes. Ofc did not observe any bulges that resembled a weapon near the waistline where juvenile was moving his hands. Juv did not attempt to grab anything from his pockets and ofc had no info linking to juvenile criminal activity involving a weapon.

Dixon, 35 FLW 1298, 4th DCA, Warrant-less entry into a home. Police entered the apt without consent and without exigent circumstances to justify the entry. Failure to protest the entry did not constitute consent to enter. Ofc had duty to investigate a 911 call until he was reasonably satisfied that no urgency existed or once urgent situation was no longer urgent. Exigency dissipated once ofc received the official description of robbery from the victim, who was out of harm's way and thereafter the conversation occurred at the apartment door.

Shelden, 35 FLW 1316, 2nd DCA, Corpus delicti - Trial court erred in admitting def's statement to police where the state failed to prove C.D. State's evidence showed a firearm was discharged inside def's home. No evidence apart from the def's statements that the shots were fired wantonly and maliciously.

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

Wednesday, June 16, 2010

Law Updates for June 11, 2010

Ferrey. 35 FLW 1242, 3rd DCA. Hearsay - Court was correct to order a new trial where the victim and the detective referred to the victim's neighbor, a non-testifying witness. Statements of the non-testifying witness inferred that the witness had observed the defendant. The defendant's right to confront the witness was violated. The error was pervasive court; did not abuse discretion in ordering a new trial.

McNeal, 35 FLW 1261, 2nd DCA, Fact that the dog had been trained and certified, "standing" alone is insufficient to give officers probable cause to search based on dog's alert. Trial court must consider other factors, including dog's past performance in the field.

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

Wednesday, June 9, 2010

Law Updates for June 4, 2010

Blair, 35 FLW 311, Fla., Error for the court to order pretrial detention based on def's failure to appear without finding that the failure to appear was willful and without determining whether conditions of release were appropriate as delineated in 907.041.

Miller, 35 FLW 1177, 4th DCA, Jury instructions - Trial court erred in refusing to give requested instruction on affirmative defense of lack of knowledge that substance he possessed was cocaine where def presented some evidence in support of defense.

Gestewitz, 35 FLW 177, 4th DCA, Police unlawfully detained the def outside of a bar after an argument with a bartender for the purpose of issuing a written trespass warning. Officer had no lawful purpose to detain the defendant because at the time he was detained there was no reasonable suspicion that the def committed the crime of trespass and the warning is a prerequisite of the crime. Def should have been given a verbal warning and allowed to leave with a friend.

Gonzalez-Ramos, 35 FLW 1203, 5th DCA, Trial court lacked jurisdiction to find the def in violation of probation where affidavit was filed and warrant issued after the term of probation expired. Probationary term was NOT tolled for the period of time between the issuance of the warrant and hearing on two prior violations where trial court did not extend the term of probation each time he violated, but simply continued(reinstated) the probation.

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

Friday, May 21, 2010

Law Updates for May 14, 2010

J.M., 35 FLW 1103, 3RD DCA, Juveniles - Statement of juvenile in which he revealed his date of birth that was relevant to the case was properly admitted even if given pre-Miranda. Basic biographical information, and Miranda does not apply to a question to obtain basic booking information

Harris, 35 FLW 1007, 1st DCA, Other crimes evidence. Prosecution witness' non-responsive statement during cross that he changed his earlier statement to wit the def was not involved in the fraud as there was a warrant out for the def for a different offense, and witness did not believe the def's testimony in the matter was improper and irrelevant - harmful error.

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

Wednesday, May 5, 2010

Law Updates for April 30, 2010

S.D.T. 35 FLW 879, 4th DCA, BOLO - Contents of BOLO Dispatch received by arresting officer were non-hearsay and were admissible to establish an element of the crime of resisting arrest without violence. BOLO not offered to prove the truth of its contents, but to establish the officer was engaged in the lawful execution of a legal duty when he commanded the juvenile to stop and the juvenile fled.

E.L.F., 35 FLW 883, 4th DCA, Self-defense - Error to deny JOA where juvenile presented evidence that he became involved in altercation as Good Samaritan when he attempted to stop the male victim from striking a woman, and that he acted in self-defense after victim began swinging at him and state's testimony was legally insufficient to rebut the testimony that the juvenile was acting in self-defense.

WHITFIELD, 35 FLW 915, 5th DCA, Automobile stop - Prolonged detention in writing citation after traffic stop for speeding - Error to deny motion to suppress drugs which were discovered when dog alerted on vehicle, where the officer detained the defendant for almost 30 minutes before issuing the citation, and dog search did not begin until after the citation had been issued and the purpose of the traffic stop was completed. Absent an articulable suspicion of criminal activity, the time the officer takes to issue the citation should last no longer than is necessary to make any required license or registration checks and write the citation. Completed traffic stop cannot be extended to conduct a dog sniff search, even if the delay is de minimis. WELL WRITTEN OPINION

Riles, 35 FLW 930, 1st DCA, Robbery - Trial judge should have given request for a special instruction for the "afterthought" defense. Force was done as to another offense and not the theft offense which was completed.

Nicholson, 35 FLW 931, 1st DCA, Trafficking in Hydrocodone, Constructive possession - State failed to prove, through circumstantial evidence or otherwise, that def knew the hydrocodone was hidden in a leather change purse on the living room coffee table next to the couch where defendant, his brother, and their girlfriends were sitting, even though leather change purse was in plain view. No record of evidence that the incriminating nature of the packaged contraband was immediately apparent. Requirement of plain view analysis.

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

Monday, April 26, 2010

Law Updates for April 23, 2010

S.B., 25 FLW 841, 4th DCA, Juv, resisting without violence, fleeing - Error to deny JOA where there was no command by the officer to stop at the time. The juveniles began to flee upon seeing officers and no evidence that juveniles knew of officers intent to detain them. Flight alone is not enough to sustain the charge, Clark 976/1225(4th DCA 2008) and Parker, 18 So, 3d 555(1st DCA 2008)

Bannister V. Lamberti, 35 FLW 873, 4th DCA, pretrial detention - Error to enter order of pretrial detention where the def failed to appear at the arraignment for GT without finding that no further conditions of release would assure the def's presence at trial, although the trial court did not make express finding that the failure to appear was willful. No such finding was necessary where the def did not place her conduct in failing to appear at issue.

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

Monday, April 19, 2010

Law Updates for April 9, 2010

Hankerson, 35 FLW 742, 4th DCA, Police observed the def exchange some object for paper currency at residence where ofc believed people might be selling drugs, and drive away pocketing what he received from others. Officers pulled the def over and ultimately searched the def's person. Def began removing his shoes before ofc could order him to do so and bag of what appeared to be cocaine lay inside one shoe. Police did not have pc to search the def without consent where the ofc did not see what was exchanged for money, did not see what was in his shoe, and did not see the def involved in more than one transaction. see Coney 822 So. 2d 1012(2nd DCA 2002)

Farias, 35 FLW 742, 4th DCA, Lewd and Lascivious molestation - Error to admit photographs of child's physical examination because photo showing no injuries had no relevance to issue of whether def molested the victim. Photo had minimal probative value and its potential for offending jury's sensibilities and evoking sympathy for the victim was substantial, not harmless, not said beyond a reasonable doubt had improperly admitted photo did not effect jury's verdict.

Hunter, 35 FLW 744, 4th DCA, Error to deny motion to suppress cocaine seizure as a result of a stop and seizure. Totality of the circumstances did not amount to reasonable suspicion that there was a Loitering and Prowling. Officer had no more than a bare suspicion of any incipient criminal conduct when they approached the def and co-def sitting equal distance between residences and a closed church and rummaging in their pockets. Mere presence close to closed business in late evening not enough to show incipient criminal conduct. Error to deny JOA as to charge of resisting arrest without violence where ofcs, with no reasonable suspicion to stop the def, were not engaged in lawful execution of a legal duty.

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

Tuesday, April 13, 2010

Law Updates for April 2, 2010

Kurecka et al., 35 FLW 666, 4th DCA, Florida’s implied consent statue does not require police officers to advise persons arrested for DUI that the right to counsel does not attach to their decision to submit to the breath test. The statue only requires that the person be told that the failure to submit will result in suspension of driving privileges, and refusal to submit can be admitted at trial. Refusal to submit based on def’s misconception is not basis for excluding refusal from evidence where confusion was not the fault of law enforcement on any action of the police.

Harrison, 35 FLW 678, 1st DCA, Lewd and Lascivious, expert - Where the trial counsel defended the case by challenging the reliability of the 11 year child’s memory of events, trial court erred in excluding expert testimony of the formation of children’s memories. Abuse of discretion to prevent the expert from testifying because of failure to list expert as a witness until 13 days before trial as state made no objection and court failed to conduct a hearing.

Bellamy, 35 FLW 680, 1st DCA, Peremptory challenges - Trial court erred in failing to determine whether state’s purported race-neutral reasons for striking jurors were genuine or a pretext.

Slack, 35 FLW 690, 1st DCA, 316.1935(1) is a lesser included offense of 316.1935(2) although they are both third-degree felonies: fleeing or attempting to elude a law enforcement officer. No evidence that the vehicle driven by LEO had contained agency insignia and other jurisdictional markings, court should have directed a verdict to the lesser included offense.

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

Tuesday, March 30, 2010

Law Updates for March 26, 2010

Farinacci, 35 FLW 608, 4th DCA, Hearsay: Where def was charged with Lewd and Lascivious fondling the clothed buttocks of a child under 12, it was harmful error to permit the detective to testify and demonstrate the victim's description of them manner in which the def touched him.

M.D., 35 FLW 610, 4th DCA, Constructive possession: Evidence was insufficient to establish that juvenile had dominion and control of marijuana found near him at the time of the arrest. Juvenile's statement that he was in the utility room "to smoke" was not enough to prove juv constructively possessed marijuana. Juv theory was he was smoking tobacco, not marijuana. This was reasonable, and circumstantial evidence was not inconsistent with a reasonable hypotheses of innocence.

Good, 35 FLW 611. 4th DCA, Court can withhold adjudication for two pending felonies pled at the same time. Two concurrent felony pleas, even though one incident was before the other, is not considered a prior case.

Mead, 35 FLW 617, 4th DCA, Intercepted communications: Law enforcement officer's direction to the victim to record any future conversations with the suspect was sufficient even if the ofc is not present. Brings it under the exception of 934.03(2)(c). Language of statute does not require active police involvement or presence during the recording session.

Hernandez, 35 FLW 618, 4th DCA, It was error to permit state to call the def's wife to the stand as a witness for the purpose of impeaching her with the transcript of a taped phone which was inadmissible hearsay. Tape was not admissible as a past recollection recorded where witness was unable or unwilling to attest to the accuracy of the tape recorded conversation.

D.B.P. 35 FLW 629, 5th DCA, search and seizure/ stop and frisk: Juvenile's act of putting his hands in his pocket during a stop for a non-criminal infraction in a high crime area was not sufficient to provide reasonable suspicion to justify the pat down.

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