Friday, July 31, 2009

Law Updates for July 24, 2009

Sundin, 34 FLW 1414, 2nd DCA, Poss of cocaine, constructive possession. Evidence was insufficient to prove that def had control over glass pipe containing cocaine residue found on nightstand in hotel room where evidence established nothing more than the def was a visitor of the resident of the room. Error deny JOA - GOOD CASE)

Reddix, 34 FLW 1416, 4th DCA, VOP hearing. Only evidence of violation came from program director's hearsay testimony. In order to prove willful and substantial, state was required to produce def's actual program chart at hearing and seek it's admission into evidence, otherwise needed personal knowledge of purported infraction.

Alvarez, 34 FLW 1426, 4th DCA, Not invoke right to remain silent when about two thirds through the second interview he asked to use the bathroom and officer responded "yeah, give me one second okay? You sure you don't want to talk to me?" and defendant responded "I really don't have nothing to say" had previously responded to prior questions with this same answer and after the bathroom he completed the interview without incident.

Blair v. Bradshaw, 34 FLW 1433, 4th DCA, Pretrial detention for Felony DUI for failure to appear for a court date was improper. No findings of fact or conclusions of law. Appeared for Misdemeanor DUI case, nolle prossed, and refiled as felony, and never notified of the court date.

Kramer. 34 FLW 1453, 5th DCA, Consensual encounter with the def was transformed into an investigatory stop when ofc ordered the def to open his mouth. Def mere act of "actively chewing" while walking late at night in high crime area did not give ofc reasonable suspicion of criminal activity. JOA ofc not engaged in lawful investigatory stop and not engaged in lawful duty at time of alleged residence.

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

Wednesday, July 22, 2009

Law Updates for July 17, 2009

Alsfield, 34 FLW 1381, 4th DCA, - Williams Rule Error to allow the state to introduce evidence of another prior alleged sex battery of a different women whom def met at same bar and brought back to his house, where state failed to prove by clear and convincing evidence that def actually committed a sex battery against that women.

J.S., 34 flw 1386, 3rd DCA, - Error to preclude defense counsel from questioning a witness regarding a contradictory statement the witness had made to the defense counsel in a interview a few minutes earlier. Trial court incorrect in concluding this was improper impeachment because defense counsel was putting herself forward as a possible witness. This was only a conflict where the witness contradicts what he or she said to the defense counsel and not if it is consistent what said in the hallway.

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

Tuesday, July 14, 2009

Law Updates for July 10, 2009

Harman, 34 FLW 1336, 2nd DCA, Court abused discretion in denying expunction based on finding that the charged offense was serious, 2nd D. Murder, and petitioner had been previously accused of domestic violence. Seriousness of offense alone is not enough to deny the petition and that the domestic case was with the same person (wife) who was murdered that the state nolle prossed when they could not prove corpus delicti. Remand for reconsideration of petition.

Santiago, 34 FLW 1356, 4th DCA, DSP, where defense filed a motion to dismiss stating that property at issue, a power washer, was on loan to the def. He pawned the washer because he needed the money, but before he could redeem it from the pawnshop and return it as per his agreement with the lender, police charged him, and state failed to file a traverse to undisputed fact that the def's permission to use the washer included the right to pledge it temporarily to the pawn shop for money. Trial court properly granted the motion to dismiss. Record does not support state argument that the def agreed to an oral traverse.

King, Sr., 34 FLW 1367, 1st DCA, Investigatory stop of vehicle. BOL for one who attempted to break into a house did not provide reasonable suspicion to justify investigatory stop of vehicle where length of time and distance from the offense was a neutral factor. Vehicle differed, although not dramatically, both in color and make, and the only objective information upon which the officers ultimately relied upon was the race of the perpetrators. Error to deny motion to suppress cocaine in passenger's pocket after officer removed a pocketknife containing a dusting of cocaine from the vehicle's center console.

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

Tuesday, July 7, 2009

Law Updates for July 3, 2009

Odom, 34 FLW 1278, 1st DCA, Fundamental error to revoke def's probation for failure to comply with p.o.'s instructions to report to the probation office between the 1st and 5th of each month where that was not a condition of probation.

Verges, 34 FLW 1291, 4th DCA, search and seizure residence - consent: def consented to a search of his home at minimum, drugs and drug related items. Consent was not limited to retrieval of marijuana plants where police entered the def's home with consent and, upon entry, observed marijuana contraband in plain view. Thereafter def was presented with a consent to search form which plainly was not limited in its items to retrieval of marijuana plants, and there was evidence that they told the def's attorney they planned to search for more contraband. Def's non-verbal action of pushing under a newspaper folded papers, did not amount to withdrawal of consent, did this prior to signing the consent to search form and prior to speaking to the def's attorney and prior to def signing consent. Pictures of child pornography discovered were not suppressed.

Julmice, 34 FLW 1298, 3rd DCA, Voir dire, trial court erred in preventing the defense counsel from striking white male juror on the panel based on finding that juror said he could be fair. Prosecutor objected to the strike on ground that the defense counsel had struck every other white person on the panel and defense provided a race-neutral reason for the strike. That juror was a uniformed military officer. Court erred by disallowing the strike on the ground that the juror could be fair without conducting inquiry to determine the genuineness of the reason.

Brickley, 34 FLW 1300, 4th DCA, error to refuse to give def's special requested jury instruction on constructive possession of contraband which stated that, if premises of which contraband were joint, rather than exclusive possession of def, state was required to establish def's knowledge and ability to maintain control over the contraband by independent proof of def's actual knowledge or evidence of incriminating and circumstances other than the mere location of the substance. Standard instructions misleading, drugs and gun were found in center console of the car driven by the def. Items were equal distance between the two and there was no evidence that the def had knowledge of the gun or drugs prior to the vehicle stop. Evidence supported the requested instruction. Instruction supported the def's theory that the vehicle was jointly occupied and thus the items were not in his possession. Def's instruction was not misleading. new trial

McGriff, 34 FLW 1322, 1st DCA, error to give instruction on principals where there was evidence def was standing in a group when the shooting giving rise to charges occurred. There was no evidence that the def acted in concert with others in committing the crimes. Error to instruct on law of principals to a response form a question from the jury.

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

Thursday, July 2, 2009

Law Updates for June 26, 2009

Cote, 34 FLW 1219, 4th DCA, exigent circumstances: Where ofcs responded to an anonymous complaint regarding narcotics activity in a certain apt. Apt door was open when they arrived, and ofcs observed the def in the kitchen, 2-5 feet in front of them, wiping down the counter with a paper towel and also observed a digital scale on the kitchen counter with a white powdery substance and straw on it. Ofcs were not justified in entering the apt without a warrant. Where the def was not aware of the ofc's presence, his action in wiping down the counter would not be interpreted an attempt to destroy evidence in response to law enforcement's presence. Ofcs, not def, created exigent circumstances.

Wilson, 34 FLW 1221, 4th DCA, Lewd and Lascivious: Trial court erred in forcing the def to choose between testifying further and giving up his attorney when the defense counsel expressed viewpoint that more testimony was not a good idea. Most of the testimony of the def was relevant to the charges. No suggestion he intended to testify falsely and no rule of evidence precluded his testimony. Trial court should have ordered the def counsel to continue with the direct examination. New trial required.

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