Monday, December 29, 2008

December 26, 2008

Hobbs, 33 FLW 1005, Fla, Confession-sexual abuse cases-92.565, which provides that in certain criminal actions a def confession or admission is admissible during trial without the state having to independently prove the corpus deliciti of the crime which sets forth factors which may be relevant in determining the state's inability to show the existence of each element of the crime, does not prohibit the court from considering the recantation of the victim as a factor relevant to whether the state is unable to show the elements of the crime, statute does not limit the trial court to considering only victim's physical and mental capacity at the time the crime was committed

D.S.D., 33 FLW 2872, 5th DCA, L & P, Juvenile presence early in morning in residential area without more not enough for L & P, ofc justified in questioning juvenile when he discovered them wearing dark clothes, in the area of a 3:30 a.m. prowler report, during encounter no additional facts came to light to support arrest for L & P, fact that ofc discovered a pair of gloves in juvenile's pocket does not alter result-cites cases

Smith. 33 FLW 2879, 4th DCA, Consent-voluntariness-where, after a traffic stop, def who was passenger in a car was detained on the side of the road by 2 ofcs with a canine unit while the driver of the vehicle was being searched and def was informed by officer that he was going to be searched and that he should turn over anything illegal before the search took place, def's act of handing officer pill bottle containing drugs was the product of an imminent pat down and not the result of an imminent act of free will

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

Wednesday, December 17, 2008

December 12, 2008

Larimore v. State, 33 FLW 948, Fla, Civil Commitment-individual must be in lawful custody when the state takes steps to initiate proceedings pursuant to Jimmy Ryce Act in order for the circuit court to have jurisdiction to hear this matter.

Nowak, 33 FLW 2788, 5th DCA, even though substantial evidence supported the trial court finding to suppress statements pursuant to not waiving her Miranda rights when the def disclosed location of the car pursuant to her illegal statement court properly held law enforcement would have found the car legally, even if the def had not led them to it, trial court erred in finding that the police could not search the car because they did not have pc to believe it contained any additional evidence of the crime that was ultimately charged in this case, police had practical common sense basis to conclude that def's car likely contained additional offense of her alleged criminal conduct based on items lawfully seized from the def and victim's statement to the police, pc to search car.

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

Wednesday, December 10, 2008

December 5, 2008

Estrich, 33 FLW 2726, 4th DCA, DUI Manslaughter-court abused its discretion in denying def's motion in limine to prohibit testimony about presence of marijuana in def's blood where DUI prosecution was based on ingestion of Xanax and state conceded marijuana did not contribute to the crash-probative value of evidence was substantially outweighed by danger of unfair prejudice, possession of another illegal drug would bolster the state's contention that yet another drug impaired his ability to drive, court erred on failing ot sever the misd marijuana charge

Brown, 33 FLW 2741, 3rd DCA, racial discrimination-juror's non verbal conduct which was not observed by either the judge or defense counsel was not a proper basis to sustain state's peremptory challenge as genuinely race-neutral

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

Monday, December 1, 2008

November 28, 2008

Nelson, 33 FLW 2687, 4th DCA, Original Opinion at 33 FLW 2088, prohibition-speedy trial-motion for continuance filed after the speedy trial period expired but before any notice of expiration invoked the right of recapture was a nullity and has no effect-Question certified: Does a motion for continuance made after the expiration of the speedy trial period but before a def files a notice of expiration under the rule, which activates the right of recapture period, waive a def's speedy trial rights under the rule, Naveira, 873 So. 2d 300(Fla 2004) does not change the court's ruling here.

Hernandez v. DHMSV, 33 FLW 2707, 1st DCA, can still challenge the legality of the arrest at DMV refusal Administrative hearings, also see Pelham 979 So. 2d 304, 5th DCA 2008)

Gordon, 33 FLW 2708, 1st DCA, Trafficking in Hydrocodone, trial court misapplied the law in refusing to suppress the evidence seized as a result of a probationary search and allowed the contraband evidence discovered during the search of the probationer's residence to be admitted into evidence in the prosecution of new charges against the defendant(should have obtained a search warrant), Soca 673/28

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