Thursday, October 27, 2011

Law Updates for October 21, 2011

McElroy, 36 FLW 2232, 2nd DCA, Hearsay - Trial Court erred in denying defendant's Motion in Limine to exclude hearsay statements, ruling improperly that statements made by CI were verbal acts.  CI statement here served only to prove the truth of defendant's participation in cocaine purchase rather to explain the nature of the transaction or the defendant's actions, and were hearsay and not verbal acts.

Molina, 36 FLW 2235, 2nd DCA, Trial Court committed harmful error in ruling that the CI was available to both parties and therefore the Defense was not permitted to call CI as a witness at trial.  No in-camera hearing, therefore court could only speculate where CI's testimony would warrant disclosure of CI's identity, and erred in ruling CI was equally available to the Defense for comment on State's failure to call at trial.

Hamilton, 36 FLW 2242, 4th DCA, Conviction of robbery with a weapon is reversed.  State presented evidence that weapon was a toy not used to strike the victim, can be brought up for first time on appeal as fundamental error legally insufficient as a matter of law.

A.H., 36 FLW 2243, 4th DCA,Juveniles - Possession of weapon at school bus stop - Evidence was insufficient to prove that unloaded BB gun seen on juvenile's person was "weapon" under Florida law.  No evidence that the juvenile used, or threatened to use, the BB gun in blunt fashion, consistent with being pistol whipped.

Deluise, 36 FLW 2244, 4th DCA, Trial court violated defendant's equal protection by proposing to consider a reduction in prison sentence if defendant paid at least $100,000 in restitution within 60 days of the sentence.

Davis, 36 FLW 2266, 1st DCA, Discovery - Defendant who sought to depose the victim on issue of consent after plea, prior to sentencing, was incorrect in claiming that he was entitled to depose the victim since the victim was a Category "A" witness.  Category was irrelevant after guilt is determined, since language of 3.220 does not prohibit rule's application to sentencing hearings, and new evidentiary issues may arise at sentencing.  Defendants have a right to conduct discovery at any crucial stage of criminal proceeding and trial court should treat discovery disputes at such stage in the same manner as those brought at trial.  Court erred in weighing the merits before granting protective order.  Error was harmless where issue of victims consent was fully addressed in victim's police report and testimony at sentencing hearing.

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

Thursday, October 20, 2011

Law Updates for October 14, 2011

A.S.F., 36 FLW 2182, 4th DCA, Trial court improperly denied motion for dismissal where the State presented no evidence that the juvenile had any participation in the attack.  He was present and might have, at some point been aware that the attack was going to occur, but such knowledge would not have been enough to establish the required criminal intent.

Williams v. Lamberti, 36 FLW 2223, 4th DCA, Recusal granted by Appellate Court after third time granting Habeas Corpus based on an excessive bond. At the emergency motion to grant bond the Court based its findings on the unsworn statements of a prior lawyer who had previously withdrawn, and would not listen to testimony of the Defendant, i.e., that he had complied with the previously imposed flight conditions, and had not received notice of a hearing he missed to determine that the Defendant was a flight risk for a third degree felony.

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

Tuesday, October 18, 2011

Law Updates for October 7, 2011

Davila, 36 FLW 579, Sup. Ct , A parent can be convicted of kidnapping of one's own child even if no court order involved.

Parker, 36 FLW 1245, 2nd DCA, Possession of child pornography - Defendant's conviction and sentence is reversed for possessing photographs depicting child's heads on bodies of adult females engaged in sex acts (not computer generated). 827.071 requires that the depicted sexual conduct be that of a child and photographs which leave no doubt that child engaged in a sexual act, actual or simulated and a reasonable viewer must believe the actors actually engaged in the conduct on camera, it must involve actual children.

Lester, Jr., 36 FLW 2157, 4th DCA, Hearsay, dying declaration.  No error in admitting out-of-court identification made by deceased victim by blinking once for no and twice for yes in identifying the defendant.

Williams, 36 FLW 2163, 5th DCA, Husband-wife privilege.  Trial court erred in admitting wife's statement that defendant needed money in order to pay his attorney (robbery case).  Covered by privilege - not waive objection by not objecting in her deposition - statement regarding defendant's street name was not protected because it was information generally known in the community.  Harmful error.

J.H., 36 FLW 2165, 5th DCA, Where trial court had orally announced juvenile's sentence of probation at initial disposition hearing, juvenile had begun serving his sentence when juvenile left the courtroom.  Summoning juvenile back in courtroom and sentence to 3 years in residential treatment violates double jeopardy. Fact that PDR was missing a comprehensive evaluation and report had DJJ'S probation plan, in error, was not fault of the juvenile causing him to be allowed to be sentenced again.

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

Wednesday, October 5, 2011

Law Updates for September 30, 2011

Theophile, 36 FLW 2090, 4th DCA, Mere presence - To deny defendant's JOA was error that there was insufficient evidence to be convict defendant as a principal to a robbery.  Questionable behavior is not enough to establish participation, facts presented did not prove or rebut defendant's explanation that he came into possession of a gun unwittingly took it from one of the co-defendant's when asked to do so.  Argument that he was a lookout based on testimony of the victim is rejected where victim said the defendant did not do or say anything to indicate he was a participant and only believed defendant was involved as he rode his bike with the co-defendant before and after the robbery.

Jones, 36 FLW 2120, 1st DCA, Criminal Punishment Code - Record did not support the finding that non state prison sanction would present danger to the public.  Defendant's history of driving  without a license arguably  supports the court's finding that he would continue to do so.  Court did not make sufficient findings and record does not establish that imprisonment in prison rather than county jail would better deter the defendant from continued unlicensed driving.  Trial court findings were speculative.  Remand for imposition of non state instead of prison (8 points).

Bush, Jr. 36 FLW 2123, 1st DCA, No legal justification to later modify bond from 60,000 set by magistrate judge to No Bond by a circuit court judge.  Only with good cause which is by change of circumstances or information not known to first appearance judge.  Information received by circuit court judge was substantially the same as heard by the first appearance judge.  Info was asst state attorney at first appearance did not know to ask for no bond, since armed robbery with firearm, and not agreed to the numerical amount.

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