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.

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