Thursday, December 31, 2009

Law Updates for December 25, 2009

Regalado, 34 FLW 1571, 4th DCA, Because it is legal to carry a concealed weapon in Florida if one has a permit to do so, a Terry stop was not allowed as there was no allegation of criminal conduct. An anonymous tip that "some guy over there was flashing his gun to a couple of friends" was not sufficient to justify a Terry stop.

Hazuri, 34 FLW 1590. 3rd DCA, Read back of testimony, in response to jury's request for trial transcripts. Trial court did not abuse discretion in advising jury it could not be given copies of the transcripts and must, therefore, rely on their own recollection of the testimony, and declining to advise jury it could receive a "read back." Trial court had no duty to inform jurors that a read back may be available on request. Judge's answer was fair and accurate, see dissent Avila, 781 So. 2d 413, 415, 4th DCA 2001

Peterson, 34 FLW 2607, 2nd DCA, Where the def's theory of the defense was that he had abandoned the stolen property before he used force to escape the scene and the sales clerk was the only witness who contradicted the defense's theory that he transferred the stolen items from beneath his clothing to a shopping basket before shoving his way out of the store, the trial court abused discretion by excluding evidence that the sales clerk no longer worked at the store because she was suspected of stealing and the clerk wished to regain her job, and limiting to defense to only that the clerk no longer worked at the store. Trial court abused its discretion in refusing a special jury instruction that jury was required to find the def guilty of robbery if the evidence established that the property was abandoned prior to the use of force, and standard instruction did not explain the theory of the defense, and it was a correct statement of the law and was not misleading.

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

Friday, December 11, 2009

Law Updates for December 4, 2009

B.O., 34 FLW 2442, 4th DCA, Juveniles. Where charging document alleged only that the juvenile committed two counts of grand theft of a firearm, but did not allege in that in stealing the firearms juvenile possessed or used a firearm, it was error to increase the standard penalty to 15 days of secured detention pursuant to 790.22(9). Statute is not applicable where petition neither cited the statute nor alleged that, in committing the theft, the juvenile used or possessed a firearm.

Carter, 34 FLW 2444, pg. 2446-7, 4th DCA, Language about suppressing photo lineups, found for the state, may want to save in files.

Carter, 34 FLW 2466, search and seizure - prescription records. Error to grant motion to suppress records obtained from a pharmacy by an investigating law enforcement officer. 893.07(4) requires pharmacies to make controlled substance records available to law enforcement and does not require the pharmacies to notify the patient or withhold such records until a warrant is presented. Privacy Provision of Florida Constitution does not support suppression of records in this case. Regulation and control of medical records is a vital governmental interest and substantially outweighs privacy interests.

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

Thursday, December 3, 2009

Law Updates for November 27, 2009

Abbey, 34 FLW 2372, 4th DCA, Probable cause for issuance of search warrant for "black box" from def's vehicle. Affidavit showing excessive speed in residential area sufficient to evince a "reckless disregard for human life or the safety of persons exposed to speed" as required to establish vehicular homicide. Error to grant motion to suppress

Pierre, 34 FLW 2374, 4th DCA, First degree felony murder. Statement of defendant, "I'm not saying anymore," followed by over a minute silence, and subsequent questioning violated Def's Miranda rights. Accusatory statement, "You're Turtle," made by detective upon reentering the room amounted to questioning where detective had already told the defendant he was taking def's picture to show witnesses who could id participants in robbery-murder and had already asked the def at the beginning of the interview if he was Turtle. Fact that this detective did not know def had invoked his right to silence does not avoid Miranda. Error to deny to suppress statement.

Bowers, 34 FLW 2384, 2nd DCA, Fellow officer rule. The testimony of ofc who investigated the DUI regarding what the ofc who stopped him told him about the def's driving was hearsay and not admissible to prove that the stopping officer witnessed the def violate a traffic law. The fact that DUI investigator was called to the scene after the stop was completed did not make him a fellow officer for purposes of determining if there was probably cause to support the traffic stop. Conflict with Ferrer, 785 So. 2d 709(4th DCA 2001)

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