Tuesday, September 15, 2009

Law Updates for September 11, 2009

Pittman, 34 FLW 1809, 3rd DCA. Lewd and Lascivious. Info charged def with sex battery +12, did not adequately inform the def he would be subject to a conviction of LIO of lewd or lascivious battery, +12 -16. Remand to discharge the def from custody. State's last minute announcement on day of trial they intended to request jury charge on lesser offense clearly prejudiced the defendant and the nature of his defense

Mistral, 34 FLW 1817, 3rd DCA. exigent circumstances. Police received a call about a possible burglary in progress at def's residence, took him into custody in his front yard and conducted a protective sweep of the house. Sweep was illegal police entered the house without consent, exigent or a search warrant. Ofcs entered the house as a routine practice not on the basis of articulable facts that would warrant a reasonable belief that there was any dangerous individual inside whose posed a threat to those on scene.

Cable, 34 FLW 1827, 2nd DCA, knock and announce. Exclusionary rule applies to Florida statutory knock and announce law. Goes further than the U.S. Supreme court case of Hudson v. Michigan, certified to the Florida Supreme Court.

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

Thursday, September 10, 2009

Law Updates for September 4, 2009

Nelson, 34 FLW 1743, 4th DCA, A def with a non-drug felony is eligible for alternative sanctions under 948.20. Circuit court erred in finding the def ineligible for an alternative sentence under 948.20 because he had a prior non-drug felony conviction, different than 948.034.

Tedder, 34 FLW 1789, 1st DCA, Def entitled to discharge when info not filed within 175 days of time of arrest. No merit to state contention that def was unavailable for trial because of his incompetency adjudication in a separate case and speedy trial period did not begin to run under rules of 3.191(k).

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

Wednesday, September 2, 2009

Law Updates for August 28, 2009

Hair, 34 FLW 1669, 1st DCA, Stand your ground law-776.032(1). Denial of motion to dismiss based on issues of disputed fact was incorrect and directly contrary to precedent expressly holding that a Motion to Dismiss based on "Stand your ground" immunity cannot be denied because of the existence of disputed issues of material fact. Victim unlawfully and forcibly entered the vehicle and was still inside the vehicle where he was shot.

McKeown, 34 FLW 1689, 4th DCA, Felony DUI. Error to permit arresting ofc to testify he only arrests one-half of the DUI suspects he investigates. Error compounded when the prosecutor mentioned during closing argument. Error not harmless where def presented ample evidence to contradict the state's theory that the def was impaired by alcohol.

Byers, 34 FLW 1707, 2nd DCA, Trafficking in methamphetamine. Error to deny JOA for trafficking based on constructive possession. Def did not have dominion and control over backpack found in passenger side of the floorboard of vehicle during a consensual search, but established def only knew the drugs were in the car he drove to the motel and def knew a second man was going to sell the drugs and def agreed to drive a man to the motel in exchange for a small amount of the drug.

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