Monday, April 26, 2010

Law Updates for April 23, 2010

S.B., 25 FLW 841, 4th DCA, Juv, resisting without violence, fleeing - Error to deny JOA where there was no command by the officer to stop at the time. The juveniles began to flee upon seeing officers and no evidence that juveniles knew of officers intent to detain them. Flight alone is not enough to sustain the charge, Clark 976/1225(4th DCA 2008) and Parker, 18 So, 3d 555(1st DCA 2008)

Bannister V. Lamberti, 35 FLW 873, 4th DCA, pretrial detention - Error to enter order of pretrial detention where the def failed to appear at the arraignment for GT without finding that no further conditions of release would assure the def's presence at trial, although the trial court did not make express finding that the failure to appear was willful. No such finding was necessary where the def did not place her conduct in failing to appear at issue.

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

Monday, April 19, 2010

Law Updates for April 9, 2010

Hankerson, 35 FLW 742, 4th DCA, Police observed the def exchange some object for paper currency at residence where ofc believed people might be selling drugs, and drive away pocketing what he received from others. Officers pulled the def over and ultimately searched the def's person. Def began removing his shoes before ofc could order him to do so and bag of what appeared to be cocaine lay inside one shoe. Police did not have pc to search the def without consent where the ofc did not see what was exchanged for money, did not see what was in his shoe, and did not see the def involved in more than one transaction. see Coney 822 So. 2d 1012(2nd DCA 2002)

Farias, 35 FLW 742, 4th DCA, Lewd and Lascivious molestation - Error to admit photographs of child's physical examination because photo showing no injuries had no relevance to issue of whether def molested the victim. Photo had minimal probative value and its potential for offending jury's sensibilities and evoking sympathy for the victim was substantial, not harmless, not said beyond a reasonable doubt had improperly admitted photo did not effect jury's verdict.

Hunter, 35 FLW 744, 4th DCA, Error to deny motion to suppress cocaine seizure as a result of a stop and seizure. Totality of the circumstances did not amount to reasonable suspicion that there was a Loitering and Prowling. Officer had no more than a bare suspicion of any incipient criminal conduct when they approached the def and co-def sitting equal distance between residences and a closed church and rummaging in their pockets. Mere presence close to closed business in late evening not enough to show incipient criminal conduct. Error to deny JOA as to charge of resisting arrest without violence where ofcs, with no reasonable suspicion to stop the def, were not engaged in lawful execution of a legal duty.

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

Tuesday, April 13, 2010

Law Updates for April 2, 2010

Kurecka et al., 35 FLW 666, 4th DCA, Florida’s implied consent statue does not require police officers to advise persons arrested for DUI that the right to counsel does not attach to their decision to submit to the breath test. The statue only requires that the person be told that the failure to submit will result in suspension of driving privileges, and refusal to submit can be admitted at trial. Refusal to submit based on def’s misconception is not basis for excluding refusal from evidence where confusion was not the fault of law enforcement on any action of the police.

Harrison, 35 FLW 678, 1st DCA, Lewd and Lascivious, expert - Where the trial counsel defended the case by challenging the reliability of the 11 year child’s memory of events, trial court erred in excluding expert testimony of the formation of children’s memories. Abuse of discretion to prevent the expert from testifying because of failure to list expert as a witness until 13 days before trial as state made no objection and court failed to conduct a hearing.

Bellamy, 35 FLW 680, 1st DCA, Peremptory challenges - Trial court erred in failing to determine whether state’s purported race-neutral reasons for striking jurors were genuine or a pretext.

Slack, 35 FLW 690, 1st DCA, 316.1935(1) is a lesser included offense of 316.1935(2) although they are both third-degree felonies: fleeing or attempting to elude a law enforcement officer. No evidence that the vehicle driven by LEO had contained agency insignia and other jurisdictional markings, court should have directed a verdict to the lesser included offense.

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