Monday, November 30, 2009

Law Updates for November 20, 2009

Dawson, 34 FLW 2294, 4th DCA, Richardson violation. Trial court erred in failing to conduct a complete hearing and failing to consider lesser sanctions, such as a continuance or a mistrial, before excluding defense rebuttal witness, where testimony was relevant and trial court found state was prejudiced because it was not given an opportunity to depose the witness and subpoena rebuttal witness or possibility of taking depo of defense witness before testifying. Application of three part test insufficient for a discovery violation as the court must consider a fourth factor and explore whether another reasonable alternative can be employed to overcome possible prejudice. Error not harmless in reversing first degree murder conviction where reasonable possibility that exclusion of witness contributed to the conviction.

Thompson, 34 FLW 2299, 4th DCA. Credit for time served - probation revocation. Def originally sentenced to concurrent terms for 2 counts, and trial court imposed consecutive sentences for those two counts after VOP. Def was entitled to credit for time served against both of the consecutive sentences. (see Rabedeau, 2 3rd 191(Fl. 2009))

L.C., 34 FLW 2306, 3rd DCA, search and seizure. It was unreasonable for police officer to perform a weapons search without having performed a pat-down of a 15 year old truant before putting her in the back of the police car to execute the ofc's statutory obligation to transport her to school where the officer had no basis to suspect the student of possessing any weapons. Absence of reasonable suspicion not justified in search just because ofc felt unsafe about his safety, nor could he do based on blanket department policy.

Ortiz, 34 FLW 2311, 5th DCA, (En banc) Reversed lower panel opinion now in favor the trial judge's finding of exigent circumstances (medical emergency exception) for warrant less search of home - for the state, distinguishes Riggs, 918 So. 2d 274(Fl. 2005).

Acevedo, 34 FLW 2322, 5th DCA, Miranda warning given to def was defective where def was told that he had a right to counsel but was not told he had a right to counsel both before being interrogated and during interrogation. Not harmless. Reasonable possibility it affected the verdict - State v. Powell, 998 So 2d 531(Fl. 2008) cert granted 129 S. Ct 2827(6-22-09)

Florida v. Simmons, 34 FLW 2352, 1st DCA, Trial court had the authority to dismiss the current charges against the def as a remedy for the state's refusal to comply with a settlement agreement under which it was agreed by the state, the def, and the victim of the crimes that def would be admitted to PTI and charge would be dismissed and victim would be paid restitution. (victim refused to sign the victim consent form after he was compensated)

Bailey, 34 FLW 2359, 1st DCA, Audio - recorded statement - Def statement to interrogating officers, not during Miranda warnings but during the statement, "Man, I don't rally want to talk about that", was not an unequivocal revocation of the prior waiver of the right to remain silent. Trial court id not err in admitting the audio-recorded statement

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

Wednesday, November 11, 2009

Law Updates for November 6, 2009

Santiago, 34 FLW 2206, 4th DCA - Court erred when it failed to permit the def to reopen his case so that false testimony presented by the state to demean the credentials of defense expert could be countered and corrected prior to the jury beginning its deliberations.

Brown, 34 FLW 2209, 4th DCA - Trial court used the 1.5 multiplier for presence of child in domestic case even when information failed to set forth the facts or statutory authority for such sentence enhancement.

Dunlap, 34 FLW 2215, 4th DCA - No error to deny mistrial based solely on one comment made by prosecutor during opening statement: discussion of jury's obligation to determine credibility of witnesses testimony, and single use of word "truth" in that context did not suggest that the jurors determination of who was telling the truth should be the sole basis of the jury's verdict.

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

Wednesday, November 4, 2009

Law Updates for October 30, 2009

Ransone, 34 FLW 2170, 4th DCA, Credit for time served in foreign jail. Def who was arrested in Miami Dade for numerous charges was not entitled to credit for time served in Miami from date of his arrest for an unrelated Broward VCC warrant where sentence received in Broward was consecutive and not concurrent with sentences imposed in Dade. Held on multiple offenses only entitled to credit for time served from the date of arrest in foreign county where concurrent sentences are imposed or foreign county warrant is the sole basis for the incarceration in the other county jail.

Arias, 34 FLW 2175, 3rd DCA, Self-defense Trial court erred in excluding evidence from the M.E. that victim had alcohol and cocaine in his blood at the time of the shooting. State opened the door to this evidence by attacking on cross-exam def's lay observation of victim's intoxication on theory that the def was not a qualified toxicologist, where def took the stand and testified that victim was behaving erratically, threatened to kill him, and appeared to be intoxicated and under influence of cocaine. Toxicology results were admissible under relevant evidence and not under theory of admissibility of character evidence. New Trial.

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