Friday, May 29, 2009

Law Updates for May 22, 2009

Suarez, 34 FLW 967, 3rd DCA, Limitation of actions. Incarceration in federal prison within state did not constitute absence from state for tolling of statute of limitations, where state issued warrant for def's arrest while in federal prison located in Florida, but did not serve the warrant until after the def was released and SOL expired trial court properly dismissed the charge

Mainwaring, 34 FLW 976, 5th DCA, speedy trail-unavailability-incarceration in another county-where the court was aware that the def was held in jail in another county, as evidenced by the fact the trial court had issued several transportation orders which were not honored by the other county, and refusal to transfer, seemingly the result of miscommunication, confusion or administrative convenience was not justified, def was not "unavailable" for trial-error to deny the motion to discharge

Montejo v. La., 07-1529, May 26th, 2009, USSC, overrules Michigan v. Jackson, twenty-year old case: police can initiate interrogation of a criminal defendant post-magistrate or other similar proceeding unless the def actually invokes his right to a lawyer or otherwise asserted his 6th Amendment right to counsel where he stood mute at the hearing and the judge ordered appointment of counsel. BAD DECISION

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

Tuesday, May 26, 2009

Law Updates for May 15, 2009

Ingmire, Jr. 34 FLW 894, 2nd DCA, excess of plea agreement. Error to impose 15 year sentence based on def's willful failure to appear in violation of plea agreement where the state presented no evidence that the def's actions were willful, relevant evidence without the def's testimony was that he erred and compounded the error through well-intended but improper action

L.P. 34 FLW 909. 3rd DCA, search and seizure. Ofc stopped vehicle in which juv was a passenger after 2:00 a.m. and determined he was violating the curfew. After he received his age he detained him and ordered him out of the vehicle told him to put his hands on the car and stay put. No reasonable grounds to believe he was in violation of the curfew ordinance where the ofc did not ascertain juvenile's reason for being in public after curfew hours. No pc for curfew violation prior to juv admitting he had marijuana on him. Not sufficiently attenuated from the illegal seizure

Panter. 34 FLW 921, 1st DCA, ofc who observed a hand to hand transaction of an unknown nature between the occupants of a van and a person who exited a house known for narcotics sales did not have reasonable suspicion of criminal activity to justify investigatory stop of occupants of the van. Denied motion to suppress where ofc had detained the def and another occupant of the van, informed that a K-9 unit would be brought there, and K-9 dog alerted on the van

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

Wednesday, May 13, 2009


Often we forget that the things each of us do everyday in our lives, whether work related or not, are not always understood by others. What I do everyday as a Criminal Defense Attorney, the process and terminology, are sometimes baffling or misunderstood. To make the sometimes daunting legal system easier to understand and less threatening, I will, from time to time, try to help the layman with what I will call:

The Ramblings of Criminal Defense Attorney Roger P. Foley


If you have been arrested, normally you won't have to stay in jail while you are waiting to appear in Court. A Judge sets the Bond or Bail at the first hearing/ bond hearing. You may either post the bond amount in cash or you may hire a bail bondsman. The bail bondsman's fee is normally 10% of the bond amount. They may also require a co-signer or collateral. You may also be released from jail on your promise to return on the date and time specified. To be released on your own recognizance (ROR) you must prove to the Court that you are a reliable citizen with a good standing in the community. This type of bond is generally available to people arrested for the first time and when the charge is not extremely serious. Another form of Bond, know as Pre-Trial Release, is also sometimes available. This may involve a GPS monitor being attached to the defendant pending the outcome of the court case, along with daily or weekly contact with a pre-trial officer.

The Court considers many factors in setting the amount of bail, including circumstances of the arrest, the severity of the crime and its penalty or punishment range, the likelihood of flight, and any prior criminal record of the accused. If you are a first time offender you will usually be released on bail unless you are charged with a serious felony, or if the Court feels that you pose a threat to another person. Repeat offenders who have committed crimes while on probation or out on parole are sometimes denied bail. The U. S. Constitution prohibits an excessive or arbitrary bail.

At the first hearing/ bond hearing, the judge will make a decision that may have lasting implications in the case. It is a good idea to have a lawyer early on who can guide you through the process. Your lawyer may help determine whether posting a cash bond or contracting a bail bondsman is best for you. Your attorney can often learn a great deal about the case informally at the first hearing/ bond hearing. It is important to remember that if you fail to appear in court, or "jump bail," this money is forfeited and you are then subject to re-arrest and a more severe sentence if convicted.

Remember. If you are arrested consult an experienced criminal defense lawyer immediately. You owe it to yourself to find an attorney who really knows the law. Experience in Criminal Law is what you need when you or someone you care about is accused of a crime.

The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. These writings are designed for general information only. The information presented should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. You should consult an attorney for individual advice regarding your own situation.

Copyright © 2009 The Law Office of Roger P. Foley, P.A.

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

Friday, May 8, 2009

Law Updates, May 1, 2009

Youngblood, 34 FLW 817, 2nd DCA, Error to deny motion to suppress statements made by def during videotaped interrogation by law enforcement where ofcs did not cease communication with the def and he unequivocally invoked his right to counsel. Police continued on a course designed to convince him to reconsider his invocation of his constitutional rights in order to protect his girlfriend.

Ortiz, 34 FLW 829, 5th DCA, EXIGENT CIRCUMSTANCES, Residence, warrant-less entry into def's home and subsequent seizure of cocaine and drug paraphernalia were improper where ofc had been informed by a local elementary school that six year old's parents failed to pick him up from school and school could not contact his parents by phone. Ofc drove child to home address, no lights were on in the house and no one answered when child knocked on the front door. No car was in the driveway and nothing was amiss. Ofc lacked reasonable basis to believe that grave emergency existed that it made imperative that he enter the house without a warrant
-CONSENT- Assuming that six year-old child had the authority to consent to ofc's entry into common areas of the home, record failed to establish that child could validly consent to entry of locked master bedroom where contraband was found, and nothing in the record demonstrates that once at the locked bedroom door, any exigency was apparent that authorized the officer to enter the bedroom. Court is unwilling to adopt community care taking exception in case of residential searches

Finney, 34 FLW 841, 2nd DCA, County court erred in sentencing def to jail for VOP where original plea that led to probation was without counsel and def did not waive his right to counsel. Indigent def was entitled to counsel unless court entered a written order of no incarceration. Could not impose jail for original charges, could not impose for VOP. Def did not waive right to counsel by signing deficient plea form. Plea form was deficient: provided misleading impression that indigent def lacks right to counsel so long as trial judge is not currently considering jail sentence as an appropriate sentence

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

Monday, May 4, 2009

Law Updates for April 24, 2009

Seavey, 34 FLW 762, 2nd DCA, L & L molestation. Collateral crimes were admissible even though they were 16 to 25 years ago - became of feature of the trial - state's use of collateral crimes during opening and closing arguments to argue the def committed the charged crime because he was a sexual predator, when considered in conjunction with prejudicial nature of collateral evidence, evidence impermissibly a feature of the trial

Brown, 34 FLW 773, 4th DCA, Poss of Xanax, constructive possession - error deny JOA where xanax was found in the center console of the vehicle jointly occupied by the def and another person - evidence that the def was nervous, he agreed to sell crack cocaine to an informant, and def closed the center console was insufficient to prove def's guilty knowledge

Brown, 34 FLW 786, 2nd DCA, Trafficking in cocaine-evidence insufficient to establish def's constructive possession of cocaine found in kitchen drawer of jointly occupied premises where the state did not establish the drugs were in the drawer were in plain view or present independent proof that def had knowledge of cocaine in the drawer - fact that other drugs were in plain view did not permit an inference that def knew cocaine was in the kitchen drawer, ofcs who served the search warrant saw cocaine in plain view on dining room table was not submitted for testing or introduced in trial - police could not prove that def possessed the only cocaine tested and introduced into evidence, could not be convicted of any cocaine possession - JOA as to the Trafficking charge

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