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.

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