Friday, June 26, 2009

Law Updates for June 19, 2009

Wynn, 34 FLW 1158, 2nd DCA, where officer conducted a pat down search of the def who was a passenger in the vehicle - Pat down revealed nothing that might have been weapon or contraband. Then ofc asked the def if he minded if the ofc took items out of the def pocket and put them on the car, and the def did not reply. Ofc further search of the def after the pat down was illegal. Failure to respond not unequivocal consent. Ofc seeing cocaine in driver's side down did not justify the search of the def, where there was no evidence that cocaine was in plain view of the def.

K.A., 34 FLW 1165. 4th DCA, Juvenile, RAWOV. Ofc observed crowd of young people in a skating rink, approached crowd to disperse. While some people were running away, juvenile in middle of the crowd yelled, "why are you leaving" and "don't leave" and "they can not do anything about it." Juvenile ignored the ofc request to stop yelling at the crowd. Although ofc warned him he would be taken into custody, this is not enough for resisting arrest without violence. Ofc was not executing a legal duty. Group was not trespassing or violating a curfew or engaged in unlawful activity and ofcs were not asked by rink management to disperse the crowd. Juvenile's words were not obstructing or causing a riot. -error to deny JOA

*Krampert, 34 FLW 1179, 2nd DCA, failure to register as sexual predator. Jury instructions - fundamental error by failing to instruct the jury that before it could find the def guilty, state failed to prove that the def knowingly failed to register by not reporting in person the sheriff's office.

Confessore, 34 FLW 1187, 5th DCA, - Good vindictiveness case

  • trial court inserted himself in the plea discussions which were ultimately unsuccessful

  • plea negotiation were off the record

  • first trial resulted in mistrial

  • trial judge prevented the def from accepting the state's plea offer made by the state after the trial and made a different offer that was rejected by the defendant

  • judge imposed a disparate sentence from the plea offer after the 2nd trial

  • record did not reveal any new facts the judge learned after the 2nd trial which were unknown to him after the first trial


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

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