Thursday, November 17, 2011

Law Updates for November 11, 2011

Hernandez, 36 FLW 648, Fla, A Driver's License Suspension can be predicated upon a refusal to submit to a breath test, not only if the refusal is incident to a lawful arrest.  Driver can not be precluded from challenging whether the refusal is from an unlawful arrest.

Page, 36 FLW 2395, 4th DCA, Trial court erred in finding that the officer's use of defendants's name and date of birth for a warrants check turned consensual encounter into an encounter requiring reasonable suspicion.

Blue, 36 FLW 2399, 4th DCA, Jessica Lunsford Act went into effect July 1, 2007.  If someone's case happened in 2001 and VOP in 2009, they do not automatically have to wear the monitor, but can still apply monitor under 948.30(2)(c) if the court makes the requisite findings.

Harris, 36 FLW 2400, 4th DCA, Possession of cocaine with intent to sell - Evidence was insufficient to exclude the reasonable hypothesis of innocence that crack cocaine found in defendant's possession was for personal use. The officer's conclusion that the fifty rocks found were for sale to others was not supported by any corroborating facts other than the amount, and the fact that the defendant did not possess any paraphernalia, and the rocks were all in one package.  This is a good summary of the case law in this area.

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

Monday, November 7, 2011

Law Updates for October 28, 2011

Perez, 36 FLW 2288, 2nd DCA, Limitation of actions - Trial Court properly dismissed grand theft charge where capias was issued within limitation period but not executed until eight years after the offense, when earlier than when the information was filed.

Baynham, 36 FLW 2291, 4th DCA, Speedy trial - Error to find that speedy trial period commenced on date defendant was taken into custody for acts of using a false name and riding bike without a light.  Trial Court misapplied "criminal episode" standard of speedy trial rule by placing greater emphasis on ongoing investigation of police, than actions of defendant. Delivery earlier same day of arrest but not charged for that offense for a year.

Dorsey, 36 FLW 2299, 4th DCA, Jury instruction, Stand your Ground Law - Trial Court erred in instructing jury on the stand your ground law,  rejecting defendant's proposed instruction, where there was evidence that defendant was engaged in an unlawful activity at the time of the shooting that adequately addressed the scope of the duty to retreat in these cases and was a correct statement of the law, not misleading or confusing.

Lanzo, 36 FLW 2335, 5th DCA, Burglary dwelling - Error to give stealth instruction after victim came home to see defendant in open garage during the day holding the victim's bicycle.  Error to permit stealth instruction where the defendant was seen in an open garage, in daylight hours, in full view of any passerby.  There was no evidence that defendant approached the home in a furtive manner.  Defendant left the garage by simply walking  down the street, and defendant readily spoke with the victim and the officer.

Price, 36 FLW 2343. 2nd DCA, "Under color of office doctrine", Officer did not violate color of office doctrine where officer could have made a citizen stop, where defendant's erratic driving was observable by any private citizen on the interstate, and the defendant's conduct amounted to a breach of the peace.  Officer did not use the power of his office to observe unlawful activity or gain access to evidence not available to a lawful citizen.

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