Thursday, October 30, 2008

September 29, 2008

T.G., 33 FLW 2201, 3rd DCA, where state provided late discovery to the defense, court did not err in finding material prejudice to def, granting motion for continuance to be charged to the state and subsequently discharging the juvenile under the juvenile speedy trial rule, in appropriate circumstances a def continuance does not waive the speedy trial rule where there has been an inexcusable delay in providing discovery.

Bartling, 33 FLW 2204, 4th DCA, search and seizure residence, residence, consent, under totality of circumstances. trial court did not err in granting motion to suppress drugs found in def's studio apt where ofcs asked for consent to search for a dead body, although they were following a tip that drugs were being sold out of the def's apt-def's desire to clear his name of a stigma of a murder accusation was circumstance for trial court to consider-search of cigarette pack clearly exceeded scope of consent to search for a dead body

Remor, 33 FLW 2209, 4th DCA, Att burglary, Def's reasonable hypothesis of innocence was that his employer sent him to hurricane zone his employer sent him to hurricane zone to seek work during clean up process, that he was in the shopping plaza to ride out the storm when he encountered the police officer and that he ran away because his co-def ran-def's claims were partially supported by his employer's testimony, no physical evidence connected def to the two boards removed from a shopping plaza store window, gloves, short worn around his neck, miner's light were not burglary tools as no intent they were being used to commit a burglary

Resh, 33 FLW 2233, 5th DCA, trial court did not abuse discretion in downward departure from the guidelines on ground that the def's capacity to appreciate the criminal nature of his conduct or conform his conduct to the requirements of law was substantially impaired, where evidence supported finding that def judgment and decision making were at the same level as an elementary school child and def suffered from severe mental deficiencies

King, 33 FLW 2225, 5th DCA, Modification of sex offender probation-def failure to provide a suitable residence address prior to release from prison did not constitute a willful and substantial violation of condition of Sexual Offender probation from living within 1000 ft of designated places where children regularly congregate, where the def had not yet been released from prison, error to modify probation to require that the def reside in county jail for 11 months and 29 days, or until such time as def had a suitable residence

Weyant, 33 FLW 2231, 2nd DCA, dismissal-ccf-no error in dismissing CCF based on finding that unloaded firearm wedged between the tow front seats of the vehicle was "not readily accessible for immediate use" where ammunition was inside closed center console of vehicle

J.L.H., 33 FLW 2233, 2nd DCA, Resist ofc without violence-Flight-Juvenile could not be guilty of resisting an office by flight because, even thought juvenile knew of ofc intent to detain him when he ran from the officer, ofc was not executing a legal duty-no basis to detain juvenile where the burglary investigation had concluded prior to juvenile's identity and ofc provided no testimony to indicate that he had reasonable suspicion that juvenile was committing, had committed or about to commit a crime

Culver, 33 FLW 2236, 2nd DCA, Trafficking in cocaine-Constructive possession-where def was driving vehicle in which a passenger was present, and the passenger remained inside the vehicle when def was asked to step outside the vehicle after a traffic stop, insufficient evidence to establish that def had the knowledge of presence and dominion and control of a bag of cocaine found behind the passenger seat-actual possession of powder cocaine in pocket she handed to ofc upon arrest under trafficking amount insufficient to establish constructive possession of trafficking amount

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

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