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