Wednesday, February 25, 2009

February 20, 2009

Galazz, 34 FLW 335, 3rd DCA, suspended sentence, standing alone, is an illegal sentence - power to suspend sentence can be exercised only as incident to probation - trial court properly vacated the plea - to render suspended sentence illegal, it would be necessary to add term of probation

Chen and Fifnje, 34 FLW 339, 2nd DCA, Anticipatory warrant - U.S. v. Grubbs, 547 U.S. 90(2006), long opinion for your review, ruled for the state that anticipatory warrant need not specify the triggering condition but need only id the place to be searched and the persons or things to be seized, and supporting affidavit must give the magistrate with sufficient info to evaluate where there exists a fair probability that contraband will be found at the place to be searched if the triggering condition occurs and if there is pc that the triggering condition occurs - Controlled delivery case

Wright, 34 FLW 344, 2nd DCA, motel room - exigent circumstances - although def was suspect in domestic violence case and was believed to be violent and armed, there were at least five officers at the motel and another two plain clothes units monitoring the area, no indication that the def was aware of the police presence outside the hotel, and state did not show there was insufficient time to secure the warrant before the officers opened the door and ordered the def out of the room to effectuate his arrest

Almond, 34 FLW 372, 1st DCA, failure to register as a sex offender after change of address - hearsay - error to admit registration forms and def application for a driver's license where none of the documents were self-authenticating business records, records custodian was not present to testify as to their authenticity and not public records exception to the hearsay rule - error to admit testimony of the deputy that he verified that the def did not reside at his address after speaking to a resident at that address, he located the def after speaking to his girlfriend, that the def was residing at a different address based on info he gathered, knew he was required to register based on info he received from FDLE - hearsay by inescapable inference

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

Thursday, February 19, 2009

February 13, 2009

Ramirez, 34 FLW 270, 4th DCA, Burden of proof-error for court to allow the state to shift burden of proof to def through its questions and comments implying that the def should have produced photographic evidence and medical records to support her version of events underlying the battery charge. Def did not assert affirmative defense and thereby voluntarily assume burden of proof, instead simply claimed that the battery never occurred, photos that state knew were available were subject to reciprocal discovery and therefore equally available to the state

Cox, 34 FLW 292, 2nd DCA, Agg child abuse - conviction based on incident in which def, while children were visiting, telephoned children's mother in their presence, launched into angry tirade against the mother and her new husband, rubbed blunt edge of pocket knife along child's leg and stabbed mattress several times, stating that this is what the def would do to the child's mother and her new husband. Insufficient to establish agg child abuse under malicious punishment theory where state presented no evidence that the def's actions were imposed as form of punishment against children - conduct did not involve level of brutality or extreme pain and suffering necessary to constitute agg child abuse by malicious torture - conviction was fundamentally erroneous

Barrientos, 34 FLW 304, 2nd DCA, Post 893.101 which eliminates "knowledge" that state has to prove that the def knew substances was cocaine as an element post 5/13/2002, court erred by eliminating word "knowingly" from the first element of trafficking jury instruction where issue of def's knowing possession of cocaine was a disputes issue at trial - new trial required

Curry, Jr., 34 FLW 313, 1st DCA. court erred in not having a Richardson hearing where the state failed to disclose that the witness gave a different prosecutor a tape recorded statement in which she stated the def had confessed the crime to her - entitled to hearing as a matter of law - fact that the ASA who tried the case was not aware of the tape is not a defense - timely disclosure of the tape may have changed defense strategy. Failure to hold hearing was not harmless error.

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

Friday, February 13, 2009

February 6, 2009

Supreme Court

Valdes, 34 FLW 116, New dj test, 775.021(4) (b) (2) prohibits separate punishments for crimes arising from the same criminal transactions only when the statute itself provides for an offense with multiple degrees-, (4)(b)(2) offenses constitute different degree of same offenses with multiple degrees, discharging a firearm within 1000 feet of a person in violation of 790.15(2) and shooting into an occupied vehicle 790.10 same offense does not violate double jeopardy, State v. Paul, 934/1167(J. Cantero-concurrence)

E.A.R., 34 FLW 120, Juvenile case and departure from DJJ recommendation, standard for departures

Rigterink. 34 FLW 132, error to admit inculpatory videotape of police interrogation of def where right-to-counsel warning was defective, it stated that def only had a right to have an attorney present prior to questioning-def was in custody under four-part Ramirez test, long opinion in Murder case

District Court of Appeal

L.B.B., 34 FLW 261, 2nd DCA, error to deny motion to suppress marijuana found on juvenile after arrest for riding a bicycle without a bell, in violation of a city ordinance-traffic offenses related to bicycles are noncriminal violations subject to only civil penalties and individual cannot be arrested for violating a bicycle-related city ordinance-equivalent ordinance previously found unlawful by Florida Supreme Court

Sinquefield, 34 FLW 262, 2nd DCA, Lawful execution of legal duty-police not engaged in lawful execution of legal duty when he attempted to detain def at time when ofc was outside his jurisdiction and acting as private citizen-erroneously convicted of obstructing ofc without violence

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

Tuesday, February 10, 2009

January 30, 2009

Bowers, 34 FLW 207, trial court erred in discharging the def from further prosecution based on a violation of rule 3.191-continuances and delays attributable to the def waived speedy trial time in rule 3.191(m) even after a mistrial one would have to file a demand.

Beam, 34 FLW 217, 5th DCA, def who had sexual intercourse with his 18 year old adopted daughter and niece by his marriage could not be convicted of incest because adopted daughter was not related to the def by consanguinity-does not extend to persons related by affinity or adoption or biologically by blood

Harris, 34 FLW 220, 2nd DCA, error to stop vehicle on ground that trailer hitch partially blocked the tag and ofcs could not read the letters on the tag from 30 to 50 feet-properly attached trailer hitch is not "other obscuring matter" for purpose of statute requiring that id information on plate be clear and distinct and free from defacement, etc.

Cromartie, 34 FLW 223, 1st DCA, evidence to exclude evidence of def's blood alcohol level at time of fight in which the def struck the victim one time and victim fell under theory of defense was that victim was acting in an aggressive, threatening manner, under the influence of alcohol and was defending himself when he struck the victim only once-new trial required

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

Wednesday, February 4, 2009

January 23, 2009

Meshell, 34 FLW 41, Fla, L & L, 800.04(4) not D.J. violation when oral sex and vaginal penetration in one single criminal episode can be more than one count, elements of different proof and and therefore distinct criminal acts

Evans, 34 FLW 150, 4th DCA, tampering with evidence-evidence that def threw or dropped cocaine rock in sand and ofcs were unable to find, without further evidence of specific intent to tamper with or conceal the evidence was insufficient to find anything more than mere abandonment-error to deny JOA

Spangler, 34 FLW 170, 5th DCA, Bolstering of witnesses-state's direct exam of arresting officers regarding their interest, bonus, discipline and incentives in relation to outcome of the case was relevant to only the bolster the officer's credibility and court erred in allowing this testimony-not harmless when the case is based on the two officer's credibility and state focused on it during closing argument

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

January 16, 2009

Brook, 34 FLW 121, 5th DCA, CCF-exemptions-def who was found in possession of a concealed firearm on premises of business of which he is an employee was improperly convicted of ccf-statute making it lawful for a person to possess arms at his or her home or place of business applied to the def in this case even though he did not have a proprietary or possessory interest in business and business was not open at the time of the arrest.

Lindsay, Jr., 34 FLW 130, 1st DCA, 10-20-Life-Mandatory minimum-Possession of firearm-failure to submit question of actual possession to jury was error, but error was harmless where no reasonable jury could have found possession by def without finding that the def was in actual possession of firearm-certified to Fla. Sup Ct.

Jackson, 34 FLW 132, 1st DCA, arrest of def for giving false name during consensual encounter before he was detained was unlawful-error to deny to suppress statements given post-arrest-exceptions to exclusionary rule-stolen shotgun and shotgun shells which were found in shed were properly admitted under independent source where the def's mother gave consent to search the shed-police discovered evidence through independent means untainted by the unlawful arrest-crack pipe found on def admissible under same doctrine because ofcs would have arrested the def for burglary after finding the stolen handgun and search incident to arrest would have led to the crack pipe

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