Friday, November 21, 2008

November 14, 2008

Jean-Marie, 33 FLW 2592, Argument: failure to call witness - no abuse of discretion in prohibiting defense counsel from pointing out in closing argument that state failed to call as a witness the detective who had taken def's statement and investigated the crime where there was no explanation how the detective, who was not a witness to the crime, could have spoken about any relevant issue. Fact that state used portion of statement defendant investigated the crime does not demonstrate that the detective could elucidate anything

Andl, 33 FLW 2611, 5th DCA, error to revoke probation for failure to promptly and truthfully answer inquiries of probation where lie was willful but not so substantial as to warrant a finding of violation of probation. The probationer had mental health issues and was making reasonable efforts to comply with rules of probation. The lie did not give rise to material violation or warrant a 3 year prison sentence, even though no justification existed for lying to p.o. and unnecessary expenditure of time and effort (DECISION RESTRICTED TO FACTS OF CASE)

G.T.J., 33 FLW 2616, 2nd DCA, Self-defense. State failed to rebut juvenile's prima facie case of self-defense, failed to carry burden to prove delinquent beyond a reasonable doubt. Juvenile provided unrebutted testimony that he swung a rod at the victim only after they began chasing him with one of the men brandishing a knife and that he swung his belt at the two of them only after one of them began to choke him. Evidence presented by the state did not rebut the juvenile's testimony regarding aggressive, violent conduct of victims, and neither victim denied that the juvenile had been threatened with the knife and choked.

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

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