Tuesday, April 21, 2009

Law Updates for April 17, 2009

Mathis, 34 FLW 736, 3rd DCA, C.I. Tip - officer did not have probable cause to search the def on the basis of a reliable c.i. tip that the informant had seen the man make a hand-to-hand transaction by a described man at a specific location where the informant did not describe the type of drugs sold or the method of delivery, and there was no evidence that the location had any prior history of drug transactions or that the officer had any prior knowledge of def's involvement in drug dealing. Hand-to-hand standing alone insufficient, under totality of circumstances, to provide officer with probable cause to search the def -see Chaney, 956/535(4th DCA 2007)

K.H., 34 FLW 739, 3rd DCA, Battery LEO-Ofc did not have pc or founded suspicion that juvenile was committing an offense(L & P) ofc not engaged in lawful performance of legal duties when he stopped the juvenile-error to convict juvenile of Battery L.E.O-remanded to reduce to battery as pushed ofc when he attempted to grab him-Act of placing hands on and looking inside window of vehicle with dark tinted windows not L an P

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

Thursday, April 16, 2009

April 10, 2009

Masaka, 34 FLW 664, 2nd DCA, Attempted manslaughter - error to exclude statements made by uncharged passenger during the police interview where the passenger admitted that he had a gun matching that used to shoot cab driver in his pocket earlier on the day of the incident and telling people "I'm fixin to rob somebody", stated he had the gun in his possession used in the shooting after the incident and sold it to a stranger two days later, admitted to changing clothes immediately after the shooting as he knew the police would look for the shooter, and told ofc he did not talk to the cab driver at any time during the cab ride-passenger unavailable to testify at the trial. Relevant to mis-id defense, given cab driver's testimony that person who shot him did not speak at all while he and the other man chatted during the ride, proffered evidence exculpated the defendant and inculpated the uncharged passenger, and self-inculpatory statements were statements against interest and sufficiently corroborated. NEW TRIAL - Also principal instruction improper as one man fled in regards to the plan to get a cab ride without paying, petty theft, when they reached the destination and the other remained in the cab and shot the cab driver

Williams. 34 FLW 685, 4th DCA, PRR no error in imposing PRR sentence for Felony Battery where he was adj. guilty under statute which requires Great Bodily Harm, permanent disability or permanent disfigurement and crime committed could not be committed without the use or threat of physical force or violence.

Leland, 34 FLW 700, 2nd DCA, L & L molestation-other crimes, wrongs or acts - evidence of other incident where def touched victim's 17 year old sister's back, ear and legs not admissible because as those facts did not amount to child molestation, 90.404(2)(b)(2).

DHMSV v. Crane, 34 FLW 708, 1st DCA, even though Def out-of-state DUI could not be used for enhancement in criminal case as is not substantially similar could be used in administrative hearing for license revocation-criminal sentence is separate from administrative license revocation.

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

Wednesday, April 15, 2009

April 3, 2009

Nicholson, 34 FLW 637, 4th DCA, Evidence - other crimes, wrongs or acts - uncharged collateral crime, although consisting of prior bad acts, was admissible to prove motive and intent, where the evidence depicted the turbulent and sometimes violent relationship between def and victim - similarities between events of collateral crime and circumstances of the homicide are insufficient to warrant the introduction of collateral crimes bad acts for purposes of identity.

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

Wednesday, April 1, 2009

March 27, 2009

Roberts, 34 FLW 606, 5th DCA, While the court ruled in this case the independent act instruction was properly declined since def was willing participant in the robbery and murders were furtherance of plan there is a good discussion of the case law in the area

Bolin, 34 FLW 619, 2nd DCA, good case on manslaughter instructions

McBride, 34 FLW 620, 2nd DCA, error to deny JOA where state's evidence established that the def witnessed shooting and ran from scene, did not prove he fired a gun or def intended for crime to be committed or he committed an act in furtherance of - The act of fleeing the scene not enough to give rise to def's intent or participation in the crime

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