Tuesday, March 24, 2009

March 20, 2009

Cowan, 34 FLW 534, 4th DCA, Post-Arrest silence, video recording made of interaction between def and companion after they were arrested and left unattended in back seat of police car may have been admissible for limited purpose of showing that contrary to his testimony at trial def actually spoke to the companion, cross-exam of def as to why he did not to respond to companion's implied accusation and prosecutor's comments in closing argument emphasizing def's silence in patrol car was improper, comments on def post arrest silence - new trial

Robinson, 34 FLW 572, 1st DCA, sexual offender registration - evidence insufficient to support conviction for failing to comply with registration requirements by failing to report change in residence, although def was sleeping outside on the sidewalk of the homeless shelter which he listed as his current permanent residence, undisputed def advised local authorities where he could be located and complied with statutory requirement - fact that a client services rep. at homeless shelter did not see def at the shelter is not dispositive where def explained in unrebutted testimony he left early in the morning for work before rep arrived at shelter for his workday.

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

Tuesday, March 17, 2009

March 13, 2009

DeBolt, 34 FLW 482, 2nd DCA, trial court abused its discretion in allowing the state to question the defense experts regarding a disciplinary action in which the expert was formally disciplined in another state and received a four year restriction on his license as a sex offender treatment provided for adolescent sex offenders, focal point of state's case was not harmless error

Daniels, 34 FLW 483, 2nd DCA, expert testimony that she had never observed a child of the age of the victim react to certain testing procedure in the same manner that the victim had reacted and it was her opinion that victim's atypical reaction was "suggestive" of child sexual abuse lacked a proper factual basis where expert did not testify in her experience, children who did not exhibit a typical reaction during the procedure were likely sexually abused, harmful error, as prosecutor in closing argument emphasized expert's extensive experience in the field and her opinion that child's reaction was suggestive of sexual abuse

Lee v. DHSMV, 34 FLW 520, DUI, Adm review of suspension - licensee was denied due process when hearing officer failed to issue subpoena for individuals who inspected breath test, although inspection reports authored by these individuals were received in evidence and considered by the hearing officer in sustaining the license suspension - circuit court departed from the essential requirements of law in concluding the hearing officer did not have the authority to issue subpoenas

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

Wednesday, March 11, 2009

March 6, 2009

Two Williams Rule cases for the defense:

Berube, 34 FLW 436, 2nd DCA, Williams rule testimony was not similar or bear any logical relationship to any material aspect of the crime for which the defendant was being tried for. harmful error. state proof did not exclude the possibility that husband or unknown third person had actually strangled the victim, testimony had substantial effect on the jury and the prosecutor emphasized when he argued testimony of the rape victim and the def's encountered in the tried case showed that the def was the killer

Fike, 34 FLW 457, 5th DCA, evidence of prior acts as not sufficiently similar to charged act though not preserved for appellate review was fundamental error. charged offense of sexual battery on def's daughter and sexual molestation of def's ex-wife younger brother not sufficiently similar, other than occurred in familial context. no similarity between the two offenses, no physical evidence to support her version of events, admission of collateral crimes were fundamental error

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

Tuesday, March 3, 2009

February 27, 2009

Aime, 34 FLW 381, 4th DCA, Manslaughter with a firearm, evidence insufficient to support conviction where state failed to establish that the def was the shooter or aided and abetted in the shooting - def convicted of manslaughter with f/a as lesser included offense of first degree murder did not waive to raise sufficiency of evidence of manslaughter by failing to object to state's request for instruction of necessarily LIO

Reyes, 34 FLW 396, 3rd DCA, ofc had well founded suspicion justifying the investigatory stop where, upon approaching the defendant, officer noticed that the scooter had no key, def was nervous and sweating, he was coming from the direction of the scooter store, ofc had knowledge of recent scooter thefts in the area and he stated the scooter belonged to a friend whose name and address he did not know - ofc conducted a pat down and felt no weapon in def's clothing ofc actions in reaching into the pocket and retrieving driver's license was not valid - trial court properly suppressed evidence regarding def's identity, before the def arrested other ofc ran check on scooter's VIN and discovered that scooter belonged to the scooter store, evidence regarding ownership of the scooter was erroneously suppressed - evidence was secured independently from pat down search and was legally obtained followed valid investigatory stop and temporary detention

Kanji, 34 FLW 411, 5th DCA, denial of expungement, discretion of court to deny in not unfettered, remanded where no reason was given for the denial for the lower court to either grant or give reasons for denying the petition

Also, three cases about DHSMV cases about different issues where writs of cert granted by the trial court was overturned, cases more important for those who handle administrative hearings in refusal cases, Nader, 34 FLW 414, 2nd DCA, Escobio, 34 FLW 417, 2nd DCA, Yankey, 34 FLW 418, 2nd DCA.

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