Thursday, December 1, 2011

Law Updates for November 24, 2011

L.M., 36 FLW 2467, 3rd DCA, CCW - Error to find juvenile guilty of CCW where weapon was BB gun which was not loaded with pellets and lacked a CO2 air cartridge and no testimony describing its operation of the nature and characteristics of injuries, if any, it was capable of inflicting, K.C.,49 So. 3d 841, 843(4th DCA 2010)

Ylomon, 36 FLW 2488, 4th DCA, Constructive possession - Court erred in denying JOA where State only proved that the defendant was sitting on a couch with a codefendant in close proximity to controlled substances and paraphernalia and no evidence was presented from which the State could infer that the defendant had the ability to exercise control over the drugs.

Jackson, 36 FLW 2499, 4th DCA, Conspiracy to traffic in oxycodone - No evidence to convict for conspiracy where there was no evidence of defendant's participation in any prior activity regarding drug transactions sufficient to establish an agreement to traffic in oxycodone.  Even if present at pre-arranged drug transaction and may have been a lookout is, insufficient to prove any implied agreement, maybe proof of trafficking but no proof of underlying understanding or agreement.

Gore, 36 FLW 2500, 4th DCA, Pharmacy and medical records - Trial Court properly denied motion to suppress pharmacy records which police obtained without a warrant or subpoena.  There is some expectation of privacy in pharmacy records.  Police may secure pharmacy records of Ch 893 controlled substances pursuant to a criminal investigation, but not pharmacy records of all prescriptions.  Trial court erred in denying motion to suppress medical records and physician statement which police obtained without a subpoena or defendant's authorization.

Thursday, November 17, 2011

Law Updates for November 11, 2011

Hernandez, 36 FLW 648, Fla, A Driver's License Suspension can be predicated upon a refusal to submit to a breath test, not only if the refusal is incident to a lawful arrest.  Driver can not be precluded from challenging whether the refusal is from an unlawful arrest.

Page, 36 FLW 2395, 4th DCA, Trial court erred in finding that the officer's use of defendants's name and date of birth for a warrants check turned consensual encounter into an encounter requiring reasonable suspicion.

Blue, 36 FLW 2399, 4th DCA, Jessica Lunsford Act went into effect July 1, 2007.  If someone's case happened in 2001 and VOP in 2009, they do not automatically have to wear the monitor, but can still apply monitor under 948.30(2)(c) if the court makes the requisite findings.

Harris, 36 FLW 2400, 4th DCA, Possession of cocaine with intent to sell - Evidence was insufficient to exclude the reasonable hypothesis of innocence that crack cocaine found in defendant's possession was for personal use. The officer's conclusion that the fifty rocks found were for sale to others was not supported by any corroborating facts other than the amount, and the fact that the defendant did not possess any paraphernalia, and the rocks were all in one package.  This is a good summary of the case law in this area.

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

Monday, November 7, 2011

Law Updates for October 28, 2011

Perez, 36 FLW 2288, 2nd DCA, Limitation of actions - Trial Court properly dismissed grand theft charge where capias was issued within limitation period but not executed until eight years after the offense, when earlier than when the information was filed.

Baynham, 36 FLW 2291, 4th DCA, Speedy trial - Error to find that speedy trial period commenced on date defendant was taken into custody for acts of using a false name and riding bike without a light.  Trial Court misapplied "criminal episode" standard of speedy trial rule by placing greater emphasis on ongoing investigation of police, than actions of defendant. Delivery earlier same day of arrest but not charged for that offense for a year.

Dorsey, 36 FLW 2299, 4th DCA, Jury instruction, Stand your Ground Law - Trial Court erred in instructing jury on the stand your ground law,  rejecting defendant's proposed instruction, where there was evidence that defendant was engaged in an unlawful activity at the time of the shooting that adequately addressed the scope of the duty to retreat in these cases and was a correct statement of the law, not misleading or confusing.

Lanzo, 36 FLW 2335, 5th DCA, Burglary dwelling - Error to give stealth instruction after victim came home to see defendant in open garage during the day holding the victim's bicycle.  Error to permit stealth instruction where the defendant was seen in an open garage, in daylight hours, in full view of any passerby.  There was no evidence that defendant approached the home in a furtive manner.  Defendant left the garage by simply walking  down the street, and defendant readily spoke with the victim and the officer.

Price, 36 FLW 2343. 2nd DCA, "Under color of office doctrine", Officer did not violate color of office doctrine where officer could have made a citizen stop, where defendant's erratic driving was observable by any private citizen on the interstate, and the defendant's conduct amounted to a breach of the peace.  Officer did not use the power of his office to observe unlawful activity or gain access to evidence not available to a lawful citizen.

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

Thursday, October 27, 2011

Law Updates for October 21, 2011

McElroy, 36 FLW 2232, 2nd DCA, Hearsay - Trial Court erred in denying defendant's Motion in Limine to exclude hearsay statements, ruling improperly that statements made by CI were verbal acts.  CI statement here served only to prove the truth of defendant's participation in cocaine purchase rather to explain the nature of the transaction or the defendant's actions, and were hearsay and not verbal acts.

Molina, 36 FLW 2235, 2nd DCA, Trial Court committed harmful error in ruling that the CI was available to both parties and therefore the Defense was not permitted to call CI as a witness at trial.  No in-camera hearing, therefore court could only speculate where CI's testimony would warrant disclosure of CI's identity, and erred in ruling CI was equally available to the Defense for comment on State's failure to call at trial.

Hamilton, 36 FLW 2242, 4th DCA, Conviction of robbery with a weapon is reversed.  State presented evidence that weapon was a toy not used to strike the victim, can be brought up for first time on appeal as fundamental error legally insufficient as a matter of law.

A.H., 36 FLW 2243, 4th DCA,Juveniles - Possession of weapon at school bus stop - Evidence was insufficient to prove that unloaded BB gun seen on juvenile's person was "weapon" under Florida law.  No evidence that the juvenile used, or threatened to use, the BB gun in blunt fashion, consistent with being pistol whipped.

Deluise, 36 FLW 2244, 4th DCA, Trial court violated defendant's equal protection by proposing to consider a reduction in prison sentence if defendant paid at least $100,000 in restitution within 60 days of the sentence.

Davis, 36 FLW 2266, 1st DCA, Discovery - Defendant who sought to depose the victim on issue of consent after plea, prior to sentencing, was incorrect in claiming that he was entitled to depose the victim since the victim was a Category "A" witness.  Category was irrelevant after guilt is determined, since language of 3.220 does not prohibit rule's application to sentencing hearings, and new evidentiary issues may arise at sentencing.  Defendants have a right to conduct discovery at any crucial stage of criminal proceeding and trial court should treat discovery disputes at such stage in the same manner as those brought at trial.  Court erred in weighing the merits before granting protective order.  Error was harmless where issue of victims consent was fully addressed in victim's police report and testimony at sentencing hearing.

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

Thursday, October 20, 2011

Law Updates for October 14, 2011

A.S.F., 36 FLW 2182, 4th DCA, Trial court improperly denied motion for dismissal where the State presented no evidence that the juvenile had any participation in the attack.  He was present and might have, at some point been aware that the attack was going to occur, but such knowledge would not have been enough to establish the required criminal intent.

Williams v. Lamberti, 36 FLW 2223, 4th DCA, Recusal granted by Appellate Court after third time granting Habeas Corpus based on an excessive bond. At the emergency motion to grant bond the Court based its findings on the unsworn statements of a prior lawyer who had previously withdrawn, and would not listen to testimony of the Defendant, i.e., that he had complied with the previously imposed flight conditions, and had not received notice of a hearing he missed to determine that the Defendant was a flight risk for a third degree felony.

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

Tuesday, October 18, 2011

Law Updates for October 7, 2011

Davila, 36 FLW 579, Sup. Ct , A parent can be convicted of kidnapping of one's own child even if no court order involved.

Parker, 36 FLW 1245, 2nd DCA, Possession of child pornography - Defendant's conviction and sentence is reversed for possessing photographs depicting child's heads on bodies of adult females engaged in sex acts (not computer generated). 827.071 requires that the depicted sexual conduct be that of a child and photographs which leave no doubt that child engaged in a sexual act, actual or simulated and a reasonable viewer must believe the actors actually engaged in the conduct on camera, it must involve actual children.

Lester, Jr., 36 FLW 2157, 4th DCA, Hearsay, dying declaration.  No error in admitting out-of-court identification made by deceased victim by blinking once for no and twice for yes in identifying the defendant.

Williams, 36 FLW 2163, 5th DCA, Husband-wife privilege.  Trial court erred in admitting wife's statement that defendant needed money in order to pay his attorney (robbery case).  Covered by privilege - not waive objection by not objecting in her deposition - statement regarding defendant's street name was not protected because it was information generally known in the community.  Harmful error.

J.H., 36 FLW 2165, 5th DCA, Where trial court had orally announced juvenile's sentence of probation at initial disposition hearing, juvenile had begun serving his sentence when juvenile left the courtroom.  Summoning juvenile back in courtroom and sentence to 3 years in residential treatment violates double jeopardy. Fact that PDR was missing a comprehensive evaluation and report had DJJ'S probation plan, in error, was not fault of the juvenile causing him to be allowed to be sentenced again.

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

Wednesday, October 5, 2011

Law Updates for September 30, 2011

Theophile, 36 FLW 2090, 4th DCA, Mere presence - To deny defendant's JOA was error that there was insufficient evidence to be convict defendant as a principal to a robbery.  Questionable behavior is not enough to establish participation, facts presented did not prove or rebut defendant's explanation that he came into possession of a gun unwittingly took it from one of the co-defendant's when asked to do so.  Argument that he was a lookout based on testimony of the victim is rejected where victim said the defendant did not do or say anything to indicate he was a participant and only believed defendant was involved as he rode his bike with the co-defendant before and after the robbery.

Jones, 36 FLW 2120, 1st DCA, Criminal Punishment Code - Record did not support the finding that non state prison sanction would present danger to the public.  Defendant's history of driving  without a license arguably  supports the court's finding that he would continue to do so.  Court did not make sufficient findings and record does not establish that imprisonment in prison rather than county jail would better deter the defendant from continued unlicensed driving.  Trial court findings were speculative.  Remand for imposition of non state instead of prison (8 points).

Bush, Jr. 36 FLW 2123, 1st DCA, No legal justification to later modify bond from 60,000 set by magistrate judge to No Bond by a circuit court judge.  Only with good cause which is by change of circumstances or information not known to first appearance judge.  Information received by circuit court judge was substantially the same as heard by the first appearance judge.  Info was asst state attorney at first appearance did not know to ask for no bond, since armed robbery with firearm, and not agreed to the numerical amount.

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

Saturday, September 24, 2011

Law Updates for September 16, 2011.

Witchard, 36 FLW 1959, 4th DCA, sex offender probation - Jessica Lunsford Act's mandatory electronic monitoring  went into effect 9-1-05.  Defendant's case was before, then violated ex post facto clause when given a monitor after violating probation subsequent to 9-1-05.  Florida courts have treated wearing the monitor as an enhancement or increase in punishment.

Tracey, 36 FLW 1961, 4th DCA, Violation of F.S. 934- By tracking location of the defendant by using real time cell site information, where it sought court order for pen-register and trap-and-trace information, and where its application failed to show real and articulable facts to show cell site location information  relevant to ongoing investigation, trial court correctly denied motion to suppress where the exclusionary rule does not apply to FS 934 (only criminal and civil penalties).

Canady, 36 FLW 1972, 4th DCA, Evidence of purchase of stolen property not sufficient to convict of dealing in stolen property if there no intent to sell to another the purchased stolen property. No evidence here to lead to an inference that the defendant intended to sell the property later, as arrested right after the purchase of the stolen property.  Remand for JOA on this charge.

Gil, 36 FLW 1977, 3rd DCA, Driving with a revoked driver's license (H.O. traffic violation) and Driving with a suspended driver's license does not violate double jeopardy.

Barcomb, 36 FLW 1983, 4th DCA, State cannot impeach with a NCIC about defendant's prior conviction. No attempt to get certified convictions.  Harmful error as credibility of the defendantwas an issue here.

Moncus,  36 FLW 1986, 4th DCA, Trial court did not err in allowing State to obtain certified copies of past convictions without requiring the State to provide additional evidence of prior convictions.  Although defendant raised the issue of identity, copies were introduced solely for impeachment of defendant character and not to establish an essential element of the offense  or sentence enhancement, only have to prove by preponderance of evidence.  Although slight variations in name, DOB, or SSN identical to the defendant, the defendant declined to issue evidence of identity.  Court was able to rely on the strong inference of all the similarities.

Enix, 36 FLW 2010, 2nd DCA, Error to deny motion for JOA for attempted kidnapping -  Evidence insufficient that the defendant committed an overt act and that the defendant was only in the preparatory stage to kidnap the wife of the supermarket manager and hold her for ransom.

Mullis, 36 FLW 2013,  2nd DCA, Obtaining controlled substance by withholding information: search and seizure, pharmacy records - Pharmacy records obtained by law enforcement officers without a warrant, subpoena, or prior notice to the defendant is allowed.  Trial court erred in denying motion to suppress statements from defendant's doctors, because detectives conduct in obtaining the statement without the patients authorization, subpoena, or notice to the defendant violated his right to privacy.  Statements to the detective by the doctor that they had issued a prescription for a controlled substance, that defendant did not tell the doctors that he had received a prescription for a controlled substance from another provider within 30 days, and that they would not have prescribed a controlled substance to defendant if defendant disclosed a prior prescription, constituted reports and records relating to the treatment of the defendant. Detective did not have good faith in obtaining the statements from doctors and their employees.  These Statements should be suppressed.

Freeman, 36 FLW 2016, 1st DCA, Impeachment - Prior convictions may be admitted as impeachment evidence where non-testifying defendant introduces his own out-of-court exculpatory statements through another witness. Defendant opened door to impeachment with three prior convictions by eliciting testimony from prosecution witness indicating that defendant denied his involvement in drug sale, limiting instruction to the jury.

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

Wednesday, September 14, 2011

Law Updates for September 9, 2011

Gartner, 36 FLW 9145, 5th DCA, Other crimes, wrongs or acts - Error to allow the State to introduce evidence regarding defendant's alleged commission of two other robberies as relevant to the issue of identity where there were no identifiable points of similarity between the two prior robberies and the charged robbery that had some special character so unusual as to point to the defendant.  Several dissimilar facts in the three robberies also support the conclusion that it was error to admit evidence of the collateral crimes - harmful error.  State took a day to admit evidence of the collateral crimes and failed to establish there was no reasonable possibility that the error contributed to the verdict.  Cites facts in opinion.

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

Saturday, September 10, 2011

Law Updates for September 2, 2011

Coleman, 36 FLW 1874, 4th DCA, Resisting officer with Violence - Trial court did not abuse discretion in admitting defendant's threats, made at hospital after arrest, that he intended to kill the arresting officers, and statement after arrest that he hated white people.  Probative to reveal to jury defendant's intent to harm LEO and not prejudicial under 403.

Hyden, 36 FLW 1879, DUI Felony - State not establish predicate convictions where of one the priors was with counsel and State presented no evidence that defendant waived his right to counsel before he entered plea of guilty.  The form signed waiving counsel was six weeks before the plea.  The Court is required to renew the offer for counsel at the time of the plea.  This is a critical stage of the proceedings as long as the defendant is unrepresented.

Marshall, 36 FLW 1905, 5th DCA, Prior inconsistent statement - The trial court erred in precluding defendant from impeaching the victim where victim told prosecutor prior to the trial that the defendant was not the driver of the suspect vehicle during drive-by shooting.  When questioned at trial, victim claim he did not recall telling prosecutor that defendant was not the driver.  Not hearsay for impeachment purposes.  The fact that the defendant did not call prosecutor at trial to proffer his testimony was not an error as it would have been futile based on the court's ruling, where prosecutor confirmed the statement not necessary to call the prosecutor for  a proffer.  Not harmless error other inconsistencies in the victim's account and fact.  State cased based mostly on victim's eyewitness testimony.

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

Wednesday, August 31, 2011

Law Updates for August 26, 2011

Dixon, 36 FLW 1815, 4th DCA, Def's repeated statements he did not want to talk about the burglaries of his parent's house was unambiguous and unequivocal.  Police did not honor the def's request to remain silent.  Trial court erred in deciding that the def could not invoke the right to remain silent regarding certain matters but not others.

T.S.W., 36 FLW 1821, 4th DCA, CCW, court should have dismissed case.  Common pocketknife (3.5 inches) and lacks weapon-like characteristics.

Breen, 36 FLW 1861, 1st DCA, Error to deny JOA where evidence established that the def entered the apt he shared with girlfriend, he was paying at least the expenses and bills for the apt, his belongings were still in the apt and no evidence that the girlfriend revoked her consent to the def living in the apt.

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

Friday, August 26, 2011

Law Updates for August 19, 2011

Herron, 36 FLW 1731, 3rd DCA, Pat Down after traffic stop - Defendant who had been ordered to place his hands on the roof of the vehicle: illegal where the officer did not have reasonable suspicion that the defendant was armed with a dangerous weapon.  Evidence of defendant's nervousness and officer's hunch that " there was something going on" is insufficient to have a reasonable suspicion that defendant was armed with a dangerous weapon.

Fleming, 36 FLW 1764, 4th En Banc, Sufficient evidence exists to get past a JOA if a chemist, or expert, who is called by the State testifies that he or she tested a substance and the test yielded positive results for cocaine.  Testimony of forensic chemist stating she found powder cocaine in a pipe discarded by the defendant and amount was too small to be weighed, but was present, is enough to support charge and deny JOA.

A.M.O., 36 FLW 1766, 4th DCA, L & P,  Judgment of guilt for loitering and prowling improper where officer did not afford the juvenile the opportunity to identify himself, and where the explanation given by juvenile for his presence should have dispelled alarm and immediate concern if believed by the arresting officer and was, in fact, believed by the trial judge, according to the record.

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

Wednesday, August 17, 2011

Law Updates for August 12, 2011

Knipp, Keiser, 36 FLW 1653, 4th DCA, Withholding information from medical practitioner - Statute does not qualify withholding of information by requiring an affirmative request for such information.  No error in granting motion to dismiss drug trafficking charges where it is undisputed that the def's possessed prescriptions issued by license practitioner in the normal course of business.  Good case.

D.F. 36 FLW 1679, 3rd DCA, Investigatory sweep at apartment complex - Juvenile was sitting on stairway in apt complex at the time multiple armed officers wearing bulletproof vests surrounded the complex. Guns were drawn, officers approached area where the juvenile was sitting.  He was "seized" when he discarded bag of marijuana after seeing the officers. Reasonable person in juvenile's position would believe police activity directed at him, not free to leave and submitted to police authority.  Trial court properly granted motion to suppress contraband found in search of juvenile after his arrest.

Wiggs, 36 FLW 1688, 2nd DCA,  Dog sniff, No probable cause  - Dog's field accuracy rate was insufficient to establish a fair probability that drugs would be found following an alert where the dog's field performance records indicated that the dog had conducted 17 vehicle sniffs and alerted to presence of drugs 14 times, but drugs were only found after 4 of those tests.  Good detailed opinion about evaluation of dog's alerts and what they mean.

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

Wednesday, August 10, 2011

Law Updates for August 5, 2011

Siegel, 36 FLW 1633, 4th DCA, Peremptory challenge - Gender discrimination.  Error to disallow defense challenge to two female jurors when defense counsel provided genuine, gender neutral reason for each challenge.  Court never did a genuineness analysis, but simply said the reason for the strikes were pretextual - Sex case: one juror who had a relative convicted of a sex crime and other, a teacher in frequent contact with children.

Aders, 36 FLW 1637, 4th DCA, Trial court properly ruled that the deputy was justified in making a traffic stop to determine if the license plate was attached to the correct vehicle where the defendant's car color failed to match the color in the computer registration.  There is no legal duty to notify the state of a change in color, but the color discrepancy creates sufficient reasonable suspicion to justify a traffic stop for further investigation.

Wess, 36 FLW 1640, 1st DCA, Robbery by sudden snatching - Purse taken while victim was sitting on a bench at a bus stop with the purse touching her hip.  Insufficient to sustain conviction: purse not taken from the victim's person.  Remand to reduce to lesser offense of theft.

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

Friday, August 5, 2011

Law Updates for July 29, 2011

Yusrael, 36 FLW 1584, 1st DCA, Judge committed fundamental error and violated due process where, during sentencing, the judge questioned defendant about two other charges for sex battery.  One was pending and the other was dismissed.  The Court comments that the other victims did not want to testify and questioned defendant whether he raped these children, strongly indicated they were factors in the court's sentencing.  Remanded for sentencing by a different judge.

Bravo II, 36 flw 1591, 1st DCA, Trial court abused its discretion in denying defendant's motion in limine to exclude testimony regarding defendant's refusal to consent to officer's request to conduct a warrantless search of his home for a gun.  Officer's testimony was irrelevant where defendant never contended that he did not own a gun or point a gun at the victim, instead argued he acted out of fear and self-defense.  Not harmless. Prosecutor comments in closing using this testimony to urge the jurors to question the credibility of defense theory of self-defense could not say beyond a reasonable doubt did not influence jury.

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

Friday, July 29, 2011

Law Updates for July 22, 2011

Rodriguez, 36 FLW 1517, 4th DCA, Impeachment, prior inconsistent statement - Trial court erred in refusing  to allow testimony that the victim told detective he did not know who shot him, after the victim testified on cross-exam that defendant shot him, and he did not remember telling the detective he did not know who shot him.  When a witness at trial does not remember earlier inconsistent statement, the witness does not "distinctly admit making" the statement under 90.614(2) and therefore extrinsic evidence of it is admissible - harmless error here where victim was heavily sedated at the time of the previous statement and defendant told officer he killed the victim.  The gun used in shooting linked to defendant and all eyewitnesses gave descriptions of the shooter that matched the defendant.

B.C., 36 FLW 1532, 1st DCA, Trespass no school grounds - Deputy who said he was a school board police officer and did not have authority to exclude children inasmuch as deputy was not under the command of the school principal. There being no connection between the deputy and principal's office, the essential element of 810.097(2), the conviction constituted fundamental error - conflict certified.  There was a similar case last week.

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

Wednesday, July 20, 2011

Law Updates for July 15, 2011

D.P. 36 FLW 1445, 3rd DCA, A uniformed officer was called to a parking lot where juveniles were loitering following a party, was told by a young woman who appeared nervous and fearful that a juvenile had a gun pointed it at her.  Officer had reasonable suspicion justifying a  pat down search.  Officer approached juvenile to verify the information and the juvenile began backing away from the officer.  Women, never identified by the police before she left the party before the pat down was complete, was a citizen informer rather than a anonymous tipster.  Information provided by her was entitled to a greater indicia of reliability than an anonymous tipster-trial court properly denied motion to suppress.

B.M., 36 FLW 1460, 3rd DCA, Battery LEO-Impeachment - Trial court erred in precluding juvenile from adducing evidence that the officer, whom he allegedly resisted, used excessive force and evidence about an internal affairs complaint juvenile brought against the officer.

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

Friday, July 15, 2011

Law Updates for July 8, 2011

Moreno-Gonzalez, 36 FLW 360, Fla, Failure of officer to sign an affidavit in support of search warrant did not render the warrant invalid.  All the surrounding circumstances clearly and without dispute demonstrate that the entire written affidavit in support of search warrant was initialed and sworn to under oath before the judge who issued the warrant.  There was no evidence of unlawful or malicious conduct or intent on behalf of the police.

D.J., 36 FLW 363, Fla., Trespass on school property - Evidence was not sufficient to prove that a juvenile was warned by a person of authority where the security guard who warned the juvenile to leave school grounds stated her only job was to monitor students behavior.  No evidence this person was vested with this power by the principal to restrict access to school property.

Vardman, 36 FLW 1405, 4th DCA, Judicial vindictiveness - After plea offer rejected by the defendant, defendant was  sentenced to 30 years.  Case discusses the totality of circumstances and the four factors laid out in Wilson, 845 So. 2d 142(Fla. 2003).

Wilbur, 36 FLW 1430, 5th DCA , Similar fact - Trial court erred by permitting state to introduce evidence concerning two earlier sales to the same confidential informant, evidence which was not relevant to case charged and was admitted only to show def's propensity to sell cocaine.  Error was not harmless.

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

Wednesday, July 6, 2011

Law Updates for July 1, 2011

Majors, 36 FLW 1355, 1st DCA, No reasonable suspicion or community caretaking, i.e. public safety and welfare, function where the officers stopped a vehicle backing out of a space after receiving a call from a bank reporting strange activity by a customer who was attempting to withdraw a large amount of cash, wanted to make a check payable to a driver of a vehicle that was parked in front of the bank, and kept going back and forth between the vehicle and the bank, acting strangely and having discussions with the people in the vehicle.  Officers said they did not suspect a crime was being committed when they stopped the vehicle.

Casias. 36 FLW 1366, 2nd DCA, DNA statistician testimony - The expert never identified or explained the methodology she used to complete her statistical analysis. She did not testify that she knew how the statistical program worked, or that she was required to know how it works, or she was able to do the statistical calculations by hand.

M.D., 36 FLW 1372, 1st DCA, School searches - An anonymous tipster called school and told them that student had carried a gun three months earlier.  School resource officer asked school security guard to escort student to security office.  A search of student pursuant to general school policy was not unlawful.  Allegations of gun possession on school campus are different from traditional 4th cases.

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

Wednesday, June 29, 2011

Law Updates for June 24, 2011

Gizaw, 36 FLW 1266, 2nd DCA, Constructive Possession - Error to deny JOA where State did not establish defendant's constructive possession of cannabis discovered in suitcase in trunk of defendant's car during a permissive search.  No independent proof that defendant had knowledge of presence of can or had dominion and control over suitcase containing cannabis where suitcase contained no fingerprints, only other items in suitcase were jeans of a size fitting passenger and defendant's unrefuted testimony establishing defendant was not in the exclusive possession of vehicle as the passenger had keys to vehicle and access to trunk.  State failed to show the $939 cash in defendant's possession was in any way connected with dealing of cannabis as defendant's unrefuted testimony that money was for school.

Fernandez. 36 FLW 1274, 3rd DCA, Trial court improperly denied motion to suppress evidence obtained when police, surveilling defendant's home which was surrounded by tall fences and remote-controlled gates, capitalized on defendant's opening the gate for the purpose of his leaving the property by quickly entering the property and blocking the defendant's exit, after which the defendant refused to sign a consent form for a search but nonetheless opened the door for the police, who entered and found 144 marijuana plants.  Officer entered the opened gate committed a trespass.  Opening of the gate was not an open invitation to the public, or by extension to the police.  Consent later granted was tainted and no brake in the chain of earlier events.

Dortch. 36 FLW 1302, 1st DCA, Fleeing and eluding - Reversible and harmful error to allow into evidence that the car the defendant was in fleeing was stolen three months earlier.  Evidence was not necessary to describe events that took place after car was stopped and defendant fled, justification for the pursuit was not a material fact in dispute.

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

Thursday, June 23, 2011

Law Updates for June 17, 2011

A.L.T., 36 FLW 1203, 4th DCA, Exceed scope of consent - Asked juvenile if he could search juvenile for weapons or drugs and then went through his wallet without further consent, finding an ID card of an elderly women whose home the juvenile later confessed to burglarizing.  Reasonable person would understand that the consent to search would constitute an agreement to only search for weapons or drugs.

Evans, 36 FLW 1205, 4th DCA, Prosecutorial Misconduct - Fundamental Error - State argument implied tampering by a witness without any evidence and of improper contact by that witness.  "they had three weeks to think of something and that they concocted their story."

Wheeler, 36 FLW 1239, 5th DCA, Search and Seizure-Vehicle-Curtilage - Where search warrant of a residence authorized search of any vehicle located within the resident's curtilage, search of defendant's car not authorized where the car was partially overlapping the portion of the driveway outside the chainlink fence surrounding the residence on but was not blocking ingress and egress to the property.  The fact that the homeowner chose to enclose the yard with a fence and defendant's vehicle was parked outside the fence is the most compelling factor.

Diaz, 36 FLW 1242, 5th DCA, hearsay - Error for trial court to admit testimony regarding an anonymous tip to police identifying defendant as a suspect where person who tipped off the police never testified at trial and testimony regarding the anonymous tip was excluded prior to trial with a motion in limine.  Non-testifying witness furnished the police with testimony of the defendant's guilt.  It is hearsay and not harmless beyond a reasonable doubt.  Evidence of the defendant's guilt was not overwhelming where victim could not identify defendant from surveillance video and did not mention prominent mole on defendant's face.

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

Monday, June 20, 2011

Law Updates for June 11, 2011

DMV v. Hernandez, 36 FLW 243, Sup Ct., A driver's license suspension can be predicated upon a refusal to take a breath test only if the refusal is incident to a lawful arrest.

Corona, 36 FLW 247, Sup Ct., Discovery deposition does not satisfy Crawford.  Defendant does not have the opportunity to cross-examine a declarant of a testimonial statement.  Defendant's constitutional right of confrontation was violated when officer allowed to testify concerning statements made immediately after incident by the victim, where the def did not have adequate opportunity to cross examine the victim, victims statements to the police were testimonial and no ongoing emergency and taken to determine if criminal activity had taken place.

Sun, 36 FLW 4th DCA, trial court properly suppressed def patient contracts and statements from his doctors which police officer obtained without a subpoena or a warrant.  Patient contacts fall within the scope of privacy in medical records and doctors statements fall within the scope of doctor-patient privilege.  Trial court properly denied motion to suppress def's pharmacy records which were obtained without a subpoena or warrant.

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

Thursday, June 2, 2011

Law Updates for May 27, 2011

Delgado, 36 FLW 220, Supreme Court - Def who stole vehicle while a two-year old child was asleep in the backseat was erroneously convicted of kidnapping with intent to fabricate a felony where def was not aware of the presence of the child until after he stole the vehicle.  Aware after of the act is not relevant to the kidnapping.  State must prove def became aware of the presence of the victim before or during the commission of the underlying felony.

Wiley, 36 FLW 1056, 4th DCA, Second Degree Murder - Error to deny JOA to 2nd D. Murder where evidence does not establish a depraved mind and with indifference to human life.  Two eyewitnesses testified that the def hit the victim over the head with a gun and gun discharged and def claimed there was a scuffle and gun discharged and def claimed there was a scuffle and gun discharged in the def's attempt to secure the gun.  Def conduct was less a result of malice and more extremely reckless behavior, insufficient to infer malice, evidence sufficient to sustain conviction for third-degree murder, as agg battery resulting in death can be third degree murder.

Croce, 36 FLW 1958, 4th DCA - Error to not dismiss juror fo cause.  Victim in a rape case, who stated in great detail her concerns about being on a jury in this case based on her past experience, concerns raise a reasonable doubt about ability to be fair and impartial.  New trial where def used all challenges and forced to accept a juror lawyer wanted to strike.

Thomas, 36 FLW 1059, 4th DCA, Discovery violation - Detective listed as a witness but not as an expert, when the state called to testify as an expert as to the packaging of the drugs, all while the witness was on the witness stand, def counsel not waive appeal based on accepting the court's remedy of having the def list as rebuttal state witnesses, Richardson hearing was inadequate here

Guardado, 36 FLW 1087, 4th DCA, Blood test results - Error to deny motion to suppress medical records containing blood test results obtained by the state through subpoena following an automobile accident in which the def was the driver and two passengers were killed where state failed to establish a nexus between the medical blood and the automobile crash. State could not rely on results from the blood samples taken at request of the officer as basis for the subpoena for medical records where the state stipulated that the ofc did not have probable cause for the blood draw.  State previous attempt not done in bad faith, state is not precluded from again seeking the medical records through subpoena if it provides further evidence demonstrating relevance of medical blood evidence.

Dillon-Watson, 36 FLW 1089, 4th DCA, vehicle and motion to suppress - Court erred in denying motion.  Search could not be based, as state admitted, as a investigatory stop based on an anonymous tip.  Consensual encounter totality of circumstances reveal a reasonable person would not felt free to leave the encounter and def 's consent to search the car was not voluntary acquiescence as a show of authority"Let me take a good look at your vehicles and if everything checks out okay, you guys will be good to go."

DeWolfe, 36 FLW 1106, 1st DCA, Hearsay exception, declaration against penal interest -  Error to exclude testimony of two defense witnesses that heard third party confess to the crime for which the def was on trial.  Third party unavailable, died by the time of trial, confession against penal interest, and corroborating circumstances were sufficient to demonstrate trustworthiness of declaration, credibility of in court witness is question for the jury and not judge and has nothing to do with admissibility. Error not harmless.

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

Monday, May 23, 2011

Law Updates for May 20, 2011

Zeigler, 36 FLW 1029, 2nd DCA, Sentencing Vindictiveness.  Sentence greater than referenced by defense counsel when originally announcing that def wanted to enter open plea.  Presumption of vindictiveness in this case arose, although record did not show that judge initiated plea negotiations, he advocated that def enter open plea by warning def of potential consequences of proceeding to trial and made remarks which evidenced departure from role of impartial arbiter by endorsing strength of State's case and telling def that he would "rue the day" he decided to exercise his constitutional right to a trial.

Hart, 36 FLW 1033, 1st DCA, Joinder of offenses.  Trial court abused discretion in granting State's motion for a single trial offenses of sex battery, kidnapping, agg battery, and armed robbery against one victim with a charge of carjacking against the other victim.  Although the two criminal episodes were separated only by a few hours and a couple of blocks, these factors were not sufficient to prove a proper and significant link between the crimes.  The mere fact of temporal and geographic proximity is not sufficient itself to justify joinder except to the extent it proves a proper and significant link between the crimes.

Boyington, 36 FLW 1036, 1st DCA, Community control - Error to revoke based solely on allegation that def changed address without permission where there was no showing that it was willful and substantial where def incarcerated in another county during the relevant period.

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

Friday, May 20, 2011

Law Updates for May 13, 2011

Brown, 36 FLW 935, 4th DCA, Self-defense - Trial court erred in giving the standard instruction for self-defense, instructing jury that self-defense was only authorized only if injury to the victim occurred where injury was not an element of the crime, and State argued such.  Error was fundamental, negated def's sole defense to the crime-Battery LEO case.

Moss, 36 FLW 940, 4th DCA, Statements of the defendant - Error to deny motion to suppress custodial statement def gave to  police after he said "I want to talk to a lawyer." Post-invocation statements cannot be used.  Waiver: def did not subsequently waive the privilege where the def did not reinterate  the exchanges with the police, instead interrogating officer continued to question the def without pause and subtly undermined the request for a lawyer in various ways.  Not harmless

Walker, 36 FLW 984, 1st DCA, Where the def sought to suppress evidence flowing from stop of her vehicle, because stop was conducted by an off-duty policemen acting outside his jurisdiction. Trial court erred in denying motion where the mutual assistance agreement was not presented to the court until after the motion to suppress.  Her due process was denied, as the def could not challenge  the authenticity, continued validity, or statutory compliance of the evidence.

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

Wednesday, May 11, 2011

Law Updates for May 6, 2011

Sabine, Jr., 36 FLW 874, 2nd DCA, Lewd and Lascivious, the uncharged crimes involving both prior and subsequent incidents between defendant and victim were not inexplicably intertwined with charged offenses.  Uncharged crimes were improperly admitted as similar fact evidence where State failed to provide notice to comply with statutory requirement.  Error not harmless where evidence was extremely prejudicial, minimally relevant, and became a feature of the trial.

Mills, 36 FLW 877, 2nd DCA, Officer on patrol in high crime area that had been hit with "smash and grab burglaries" lacked probable cause to arrest defendant for loitering and prowling based on their having observe him walking out from behind a closed business and then turning around and walking behind closed business when he saw officers.  When officers spoke to him he came out from behind the wall, identified himself, and provided some explanation for his behavior.  Error to refuse to suppress pills post-arrest.

Butera, 36 FLW 879, 2nd DCA, Constructive possession -  Greater weight of preponderance of evidence presented at revocation hearing did not establish defendant's knowledge of his dominion and control over cocaine or marijuana found in the vehicle in which the defendant was the backseat passenger and was occupied by two other people.

Black, 36 FLW 682, 4th DCA, Statement of defendant - Where defendant clearly and unequivocally invoked his right to counsel, police were immediately required to stop questioning him.  Error not harmless.  Defendant invoked right to counsel when he answered "no" to inquiry, "knowing and understanding your rights as I have explained them to you, are you willing to answers my questions without an attorney."  Detectives' follow-up, whether he wanted to speak to the police anyway, effort though intended or not to wear down the defendant's resistance and make him change his mind.  Statement suppressed.

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

Saturday, May 7, 2011

Former Prosecutors Advertising as Defense Attorneys

As a Criminal Defense Attorney, I am in the Court House daily and have the opportunity to watch other attorneys practice their craft.  Most should quit because what I see from the majority of the defense bar is a bunch of hacks. 

What is meant by the word hack?
A professional person, in this case a lawyer, who exploits others for money and has absolutely no pride in what he does.  He forfeits his abilities and surrenders to the system because nobody checks, nobody complains, nobody cares.  Yes, that is the overall system. 

Everyone loves to hear a good story about the innocent guy who is released from jail but rarely do the criminal lawyers I see put in the effort to allow the innocent to go free.  Some say that there are no innocent people in the criminal system but I am here to tell you that there are some innocent people.   I am also here to tell you that the experience and dedication to learn my craft and the continuation of my education is brought about by my defending the guilty.  That is the truth.

Many of my clients are guilty and yes, I help them to walk away without any penalty.  But this writing is not about me nor am I attempting to make a comparison between the the hack attorneys and the few elite lawyers who actually care about our clients.  I am simply here to give my opinion.
Tonight's opinion was brought about after watching television.  I came across yet another boring and ridiculous law firm commercial that states, "We are in trial all the time and I have been to trial hundreds of times...."  The commercial sickens me. 

This mutt claims to be Mr. Trial Attorney.  First, I have never seen the guy in the Court House.  Second, he is a former prosecutor which means he went to trial to send those accused of crimes to jail and/or prison. He did not defend those accused of a crime, he accused them of a crime and fought like hell to ruin their lives. 

Quick analogy, and please don't take it wrong because I respect most Prosecutors especially when they work hard to be fair and are honest, but their job is very different from a Criminal Defense Lawyer. There are people in the demolition business and their job is to destroy things.  They knock down walls, rip out closets and floors, and generally destroy things.  We have all had a hammer in our hand at some point in our lives and have hit a wall or a mirror or ripped something apart.  Am I correct?  You have at least broken a light bulb in your life right?  It can be a tough job, it is difficult.  There may be time constraints and, as a someone that demolishes things, you have to be careful that when your ripping something down that you don't destroy the good parts.  You may break a light bulb but you do not want to break the light fixture itself.  You may knock down a wall but you must be careful not to destroy a weight bearing wall that holds up the roof otherwise it collapses.  Has everyone got the gist of this?  It's a job, it's tough, has long hours, is tiresome, is thankless, and being a Prosecutor is also a difficult and dirty job.  

Then there is the guy who builds a home, a foundation, flooring, electrical, plumbing, ac, etc. or the guy who constructs a light bulb.  He takes the filament and attaches it to the metal and delicately places the glass around the bulb.  He is a creator of things, whether it be a home or a light bulb.  It's fair to say that it takes longer to build a home or create a light bulb than it does to demolish a home or smash a light bulb.  This is the difference in what we do, Criminal Defense Attorneys and Prosecutors.  The Prosecutors destroy lives and many of accused have done the crime so they have to do the time and I do not fault Prosecutors for doing their job but Defense Attorneys have to build a case. They have nothing, only negative useless parts to begin with, but they take that seemingly useless information and create a masterpiece.  They create, and it takes time to do it correctly.  Not everybody can build a house when only dirt exists.  The dirt in this analogy is the testimony of police officers.  They surely don't take the witness stand and say yes he had drugs or broke into a house but after learning about this individual he is actually a nice guy, right?   They just testify to everything they can to make the accused look like dirt.

To say that you have hundreds of hours breaking light bulbs and knocking down walls and destroying items does not mean that you can create a home or produce, from filament and glass, a working light bulb.  Some individuals may have an idea of what to do but demolition and creation are far different creatures.  Asking an officer, "what happened next? and then?  what did you see? where did it happen?" is a complete contrast to looking between the lines and figuring out where the lies begin and end, and creating life from dirt.  If you are a Criminal Defense Attorney, a police officer gives you dirt and using that dirt you must bring enough explanation so that a judge or jury can see through the dirt and realize that there is a buried treasure hidden amongst the dirt.  That treasure is the truth.  The truth stands somewhere between what that officer says and what your client tells you behind closed doors.  the problem we have as Defense Attorneys is that our client rarely shares his story with the judge or the jury so we competent Defense Attorneys, who care about our craft, we must begin with dirt and create.

My point is I am sick and tired of watching commercials involving former prosecutors who stand up in their advertisements saying that they log hundreds of trials when all their experience is contrary to what criminal defendants are looking for in a defense attorney.  For weeks, months, and years these "experienced defense attorneys," who are simply prosecutors changing their title, were breaking the chops of the accused and dishing out offers to settle cases that were disproportionate to the alleged crimes.

When they were prosecutors, they thought nothing of sending a man they did not know to prison or making him a convicted felon or having him labeled a sex offender.  When you do that hundreds of times you become numb to what you are doing because the words "jail" or "prison" or "sex offender" are merely words and one year, two years, five years, ten years are but mere numbers.    AND THEN YOU MAKE THE CHANGE and you really think by saying in a commercial that you are a former prosecutor and that you are ready to go from breaking light bulbs to the creation of  a home.  You think you deserve to embellish and lie to potential clients about how much time you have spent in the courtroom. 

When a defector comes from another country does he brag about how many American soldiers he killed while his country was at war with the U.S.? 

Get my drift? It is ridiculous when these people say FORMER PROSECUTOR with hundreds of trials - it's all BS.

Take it or leave it - THAT'S MY OPINION

Wednesday, May 4, 2011

Law Updates for April 29, 2011

Hayward, 36 FLW 829, 4th DCA, Error to admit evidence of defendant's prior DUI conviction.  By taking the stand in his own defense and explaining why he refused to take breath alcohol test, he did not open the door to evidence about his prior DUI conviction where he did take a breath test and the results were used against him.

Ginsberg v. Miami Dade County, 36 FLW 832, 3rd DCA, Pretrial detention without bond - Defendant who violates condition of pretrial release forfeits right to conditional release under original bond, but does not forfeit altogether his constitutional right to pretrial release.  Error to order defendant detained without complying with requirements of statute and procedural rules.  Failure to comply with this cannot be cured by the fact that the defendant might have been given notice and opportunity to be heard before being denied bond.

McKay, 36 FLW 849, 3rd DCA, Abuse of discretion to deny challenge for cause of juror who indicated that if State presented credible evidence and defendant did not testify he would be more inclined to convict.

Power v. Boyle, 36 FLW 857, 1st DCA, Injunctions-Repeat violence -  Incident involving uncivil and immature behavior, drunk and profanity, was not enough for injunction without evidence of threat of violence or overt act that would create reasonable fear that violence was imminent.

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

Monday, May 2, 2011

Law Updates for April 22, 2011

Harris, 36 FLW 163, Fla, (another dog sniff case)  To meet the State's burden of probable cause to search a vehicle after a dog alert the State must show that the officer had a reasonable basis to believe the dog was reliable under the totality of circumstances standard.  To meet this burden the State must present the meaning of the particular training of the dog, field performance records, and evidence concerning the experience and training of the officer handling the dog, as well as any objective evidence known to the officer about the dog's reliability in being able to detect the presence of illegal substances within the vehicle.  Evidence that the dog has been trained and certified to detect narcotics, standing alone, is not sufficient to establish the dog's reliability for purposes of determining probable cause.

McCloud, 36 FLW 777, 4th DCA, Refusal to give LIO instruction for trespass where all elements of offense in charging document and evidence supported those elements.  Failure to instruct on offense one step removed reversible error.

Browning, 36 FLW 787, 1st DCA, Kidnapping.  Victim passenger in vehicle.  Defendant fled from police before arrested.  Detention of victim during commission of crime kidnapping, keeping victim in car against will, and driving off not incidental to crime of fleeing and eluding, consequential and substantial.  Victim forcibly removed from convenience store and from company of his friend, fleeing with victim in car made defendant's flight more likely to succeed as opposed to ordering victim to get out and waiting a few seconds for him to do it.

Montijo, 36 FLW 796, 5th DCA, In instructing jury on self-defense, justifiable use of deadly force, it was error to shift the burden to defendant to establish beyond a reasonable doubt that the victim was attempting to commit an aggravated battery on the defendant.  Burden never shifts to the defense to prove self-defense beyond a reasonable doubt.

Murphy, III v. Lamberti, 36 FLW 801, 4th DCA, trial court improperly revoked defendant's bond without finding that "no conditions of release can reasonably protect the community from risk of physical harm to persons or assure the presence of the accused at trial."  Trial court is not allowed to deny release solely on a finding that the defendant violated a condition of bond.

Dawson, 36 FLW 804, 2nd DCA, Pat down unlawful.  Officers did not have reasonable suspicion that the defendant was armed with a dangerous weapon.  Defendant stopped while walking along the highway, failed to comply with officer's requests to keep his hands out of his pocket was insufficient to establish reasonable suspicion where officers did not see any weapons or notice any bulges in defendant's clothing that would indicate he was carrying a weapon.

Sanchez-Andujar, 36 FLW 808, 1st DCA, Alibi witness.  Trial court erred in rejecting less restrictive measures and excluding defendant's alibi witness who had not been timely disclosed.  State did not trigger any defense obligation by filing written demand for notice of intention to claim alibi.  Exclusion of defense witness is not harmless error beyond a reasonable doubt that witness testimony could not have proved a reasonable doubt in minds of jurors sufficient to tip the scales in favor of am acquittal. Martin 41 So. 2d 1100(4th DCA 2010

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

Monday, April 25, 2011

Stop and Frisk

Every day, potential clients come into my office claiming that their arrests should be thrown out because they were illegally searched. The scenario is almost always the same: the client was walking down the street or driving in his car. He was told to stop for some reason by an officer, patted down, and illegal substances were found in his pocket. The client was then arrested for the substances, which the officer wouldn't have ever known about had he not stopped and frisked the client. Clients are often surprised to find that even though the officer didn't have a warrant, most of the time judges hold those searches to be perfectly legal. Why? Enter the Supreme Court in Terry v. Ohio.

In 1968, the Supreme Court held in Terry v. Ohio that because police officers face a lot of dangerous situations, they are allowed to "stop and frisk" anyone they are reasonably suspicious is committing, about to commit, or has just committed a crime. While it makes sense to give police officers some protection on the streets from purportedly dangerous criminals with weapons, the standard to stop and frisk is extremely low: an officer needs only "more than a mere hunch" that a crime is/has/was occurring.

Police officers can stop and frisk you for almost any reason, and they do - especially in high crime areas and minority communities. When an officer is writing his report, he'll say that he stopped you because you were acting strangely, you were in a high-crime area, it was late at night, you were loitering, you were hiding behind something, or any other number of behaviors deemed "suspicious." He'll say that he frisked you because he was concerned for his own safety, he didn't have backup, you were evasive, you were bigger than him, or any combination necessary to make the frisk (and any evidence found as a result) legal under the eyes of the law. Anything found during the frisk that is illegal gives the officer probable cause to make an arrest. This can turn a walk to your friend's house into a night in a jail and an extensive legal battle to clear your name.

Police encounters can be scary and confusing. Many people do what they are told by an officer, even when they don't have to, simply because they do not know their rights or are too nervous to remember them. Unless you are being detained, either by a show of force or a show of authority, you are free to walk away from a police encounter. The best way to determine if you are free to go is to ask! "Am I being detained or am I free to go?" The answer will be clear. If you aren't being detained, carry on with your day. No need to stick around, unless you really have a desire to chit chat with police officers on duty.

If, however, the officer tells you you are being detained, or he has the blue lights on in his patrol car, or he throws you up against a wall or the ground or his patrol car, it's a safe bet that you are being detained. The detention could very well be illegal, but if you find yourself in such a sitation: don't resist. Resisting can only make the situation worse for you. Let your lawyer fight it out later on in court.

When you are being detained, the officer can legally pat you down for what he believes in his "training and experience" to be concealed weapons or contraband. Some people think that they will be making things easier on themselves if they announce their possession of illegal substances right away. Doing the officer's job for him isn't making things easier on you - it's making it easier for the officer to arrest you and easier for the State's Atttorney to convict you. Anything you say can and will be used against you. Telling the officer you have weed in your pocket is a confession and voluntary confessions make defending you a whole lot more difficult. So, just remain silent if you are being stopped and frisked.

[You should also know that you don't have to pull out your pockets for them - that's their job. Emptying your pockets for a police officer is the same as consenting to a search. Don't do it; you have the right to refuse searches.]

Officers know what they need to say for a stop and frisk to be found legal. But remember, just because they write the buzz-words in their reports doesn't mean that your case is lost. It is up to your lawyer to challenge illegal searches. While Stop and Frisk laws (also known as Terry Stops) give law enforcement broad authority on the streets, knowing your rights and utilizing them can help your attorney use the law to your advantage to fight back in court.

Thursday, April 21, 2011

Law Updates for April 15, 2011

Rogers, 36 FLW 725, 4th DCA, Protective sweep - Officers responded to a neighbor's 911 call reporting men and women arguing, throwing things, and being violent, entered the residence without a warrant when they heard the male voice cursing and ordering someone not opening the door.  Trial court erred in denying the Motion to Suppress cocaine and drug paraphernalia seized from the locked bedroom within the residence.  The search of the premises were impermissibly broad

Ferguson, 36 FLW 727, 4th DCA, Third Party consent - Court properly found that def's girlfriend, a co-occupant of the apt, validly consented to the ofcs entry into the apt where the girlfriend possessed a key to the premises, made sworn statement to the ofcs she lived with the def of the apt, kept substantial amount of clothes in the residence and was allowed to be alone in the apt and was so on the night of the incident.  Fact that the girlfriend was not on the lease is not dispositive of her claim of actual authority given the fact that the def's name was not on the lease.  No error in denying motion to suppress of gun found in plain view in the bedroom.

Washington, 36 FLW 733, 4th DCA, Good case - Trial court was mistaken in believing it did not have discretion to reinstate probation without grounds for a downward departure, where the original sentence was a downward departure.  Remand for re-sentencing so the court may consider def's request to reinstate probation, court can reinstate under 948.06 without it being considered a downward departure, Harrison, 589 So. 2d 317, 318(5th DCA 1991)

Jones, 36 FLW 741, 5th DCA, Continuance - Abuse of discretion to deny motion for continuance filed by newly appointed counsel where counsel clearly had insufficient time and resources for trial.  Although def failed to waive speedy trial in this case, speedy trial was not an issue.  Good case for this issue where judge forced the new lawyer into trial quickly.

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

Wednesday, April 13, 2011

Law Updates for April 8, 2011

Roussonicolas, 36 FLW 644, 4th DCA.  Trial court reversibly erred in ruling that the transcript of sworn testimony exonerating the def given by co-def at def's bond hearing was inadmissible.  Co-def was unavailable to testify at trial, invoked 5th A. The State had the opportunity to cross co-def at the bond hearing and, given exculpatory nature of the testimony, the State had similar motive at bond and at trial to discredit the co-def's testimony and show it was not worthy of belief.

Trapp, 36 FLW 652, 4th DCA.  Error to allow the State to go into the specifics of def's prior perjury conviction when he admitted the conviction.  Def did not open the door when he said he told the victim that if she lied she would be charged with perjury.  State argued in closing as reason to reject def's version and accept victim's version and case was based on conflict in testimony of both.  Plus Allen charge needed as jury was out a long time deliberating.

Robinson, 36 FLW 655, 4th DCA.  Error to exclude defense witness on the ground that the defense failed to give the State notice of intent to claim an alibi, where witness was not presenting an alibi as contemplated by the rule, but rather a general denial of criminality, and testimony that the brother would testify that defendant was not present at the crime scene.  Error to prohibit defendant from testifying on his own behalf that he was not at his parents house when police allegedly saw him exit parents' residence, and put in a garbage can what was allegedly a Ziploc bag containing cannabis.  Defendant may testify to his own activities without filing notice of alibi if he is the sole alibi witness.  Error compounded by prosecutor when she said he took the stand and "did not say anything."  New trial.

Mack, 36 FLW 682, 1st DCA, Comment on def's right to remain silent.  Trial court erred in denying motion for mistrial where the investigator testified that at the time of his arrest, the def made no statements and said he would rather talk to his attorney and did not want to talk anymore.

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

Wednesday, April 6, 2011

Law Updates for April 1, 2011

R.H. 36 FLW 604, 4th DCA, Juvenile could not be adjudicated delinquent for possession of weapon on school property based on his possession of common pocketknife, blade 3 1/4 inches.

Coleman, 36 FLW 618, 1st DCA, Comment on right to remain silent - Detective's testimony that the defendant "abruptly ended the interview" when detective told her he suspected certain thefts involved a single employee of the victim who had opportunity and ability to gain access to two different stores at which the thefts occurred and when the detective began "to put those pieces together." New trial - the comment was not harmless.

Miles, 36 FLW 620, 1st DCA, Statement of def was unequivocal right to remain silent when he told the police, "actually I do not know nothing about this, so I'm not fixing to say nothing about this," made at outset pre-Miranda and detectives were required to terminate interrogation at that point.  Error not harmless. see Cuervo, 967 So. 2d 155(Fla. 2007)

J.L., 36 FLW 626, 5th DCA, Burglary, Curtilage - Testimony that there was a fence in the back of the dwelling, and a fence between the dwelling a and neighboring house, was insufficient to prove that the juvenile took property from the curtilage of the residence when he took property which was leaning against the side of the dwelling.

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

Wednesday, March 30, 2011

Law Updates for March 25, 2011

Ranglin, 36 FLW 561, 4th DCA, Court erred when it refused a challenge for cause to a juror that said under no circumstances would be appropriate for a man to hit a woman.  Reasonable doubt if juror could fairly consider the def''s case for self-defense.  Denial of cause challenge forced the def to use all of his peremptory challenges precluding him from expending challenges on other jurors and was reversible error.

Moncrieffe, 36 FLW 565, 4th DCA, Escape - Evidence failed to show defendant was validly arrested and in lawful custody of the police at the time of alleged escape.  Officer exceeded his authority by taking def into custody outside the territorial limits of his jurisdiction without a warrant.  Fact: there was pc to arrest is not controlling.

Hentz, 36 FLW 568, 4th DCA, Search and seizure, Intercepted communications - Error to deny motion to suppress evidence seized based on incriminating responses made by def, who was in his home, during telephone conversation with the co-defendant, who was in police interview room equipped with recording equipment sensitive enough to record both ends of the telephone conversation.  Officer intentionally intercepted def's oral communication within the meaning of the statute prohibiting interception of wire, oral or electronic communication.  Def had reasonable expectation of privacy in phone conversation at home, did not direct his conversation to multiple people and did not know the co-def was sitting in police interview room room  at the time of the conversation.

O'Brien, 36 FLW 574, 1st DCA, After def invoked right to counsel, police unlawfully initiated conversation with the def (40 minutes later).  He expressly asked would the def be willing to reconsider and speak with a detective at the station and officer stated we'd appreciate it when the def was vacillating, and telling the def the truth would come out after the authorities interviewed the child victim.  Def subsequent written waiver was involuntary.  New trial, Harmful error.

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

Saturday, March 19, 2011

Law Updates for March 11, 2011

Cannon, 36 FLW 444, 4th DCA, Undercover officer, in giving defendant cocaine after transaction was complete and allowing him to go into the community with that substance, was in violation of due process where officer created the situation for possession to occur.  Charge properly dismissed.  Earlier charge of sale of cocaine was improperly dismissed, as the offense had already been completed prior to allowing the defendant to take cocaine.

Ortuno, 36 FLW 471, 1st DCA, Lewd and Lascivious, Hearsay - Abuse of discretion to admit alleged victim's prior consistent statements made during interview with CPT, which did not occur prior to the time that a motive to fabricate existed.  Not harmless where case was based on the truthfulness of victim and defendant.  Testimony was repeatedly raised and communicated to the jury by three different witnesses, and CPT interviewer was qualified as an expert, creating inference she had the ability to extract truthful responses from sexually abused children.  New trial.

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

Wednesday, March 9, 2011

Law Updates for March 4, 2011

Pantoja, 36 FLW 91, Fla, Lewd and Lascivious Molestation - Trial court properly excluded evidence that Victim had accused another person of molesting her and later recanted that accusation.  Under 90.610, not admissible as impeachment by evidence of prior misconduct where there was no criminal conviction as a result of the misconduct and not admissible to prove bias or motive to lie.  Not admissible under 90.405(2) where Victim's character was not an essential element of the charge or defense and not admissible as a specific instance of misconduct to show that the Victim was inclined to lie about sexual abuse.  Exclusion of evidence did not violate def's right to confront the witness.

Self, 36 FLW 419, 5th DCA, Speedy trial-Prohibition -  The defendant did not waive speedy trial by making an objection to admissibility of business records upon which the State intended to rely to prove def's failure to register as a sex offender.  Continuance was attributable to the State where def raised the objection well before trial, and continuance was granted where the State was not prepared for the hearing on def's objection.  State did not seek extension of the recapture period or demonstrate exceptional circumstances existed to warrant extension of the recapture period.  Discharged

Ibarra, 36 FLW 423, 2nd DCA, Discovery-State failed to comply - Trial court erred in allowing the State to impeach def with a previously undisclosed ORAL statement to detective that was contrary to def's trial testimony with first conducting a Richardson hearing to determine if discovery violation occurred and was the def prejudiced.

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

Friday, March 4, 2011

Law Updates for February 25, 2011

McKelvin, 36 FLW 347. 4th DCA, Anonymous tip - Investigatory stop of the vehicle, where unidentified anonymous person approached officers and gave them a detailed description of a vehicle, including its tag number, and the occupant of the vehicle, who was engaged in suspected illegal activity.  The officer did not have reasonable suspicion justifying an investigatory stop of the vehicle, where the information provided by the anonymous source was not sufficiently corroborated by the officers.  Tipster was not a citizen informant; no different from someone who gives info over the phone where the informant gave no contact information or other way to locate the informant.

Bonge, 36 FLW 354, 1st DCA, Battery - Given facts of the case, which were admitted by the State, State could not establish that the def intended to touch his infirm and elderly mother against her will when he lifted her from her wheelchair and placed her in his car for transport to the emergency room.  Error to deny def's motion to dismiss.

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

Law Updates for February 18, 2011

Blackmon, 36 FLW 296, 2nd DCA, - Conviction for Carrying a Concealed Firearm reversed. Evidence was insufficient to prove firearm that def carried was ever concealed.  Officer's testimony that he was unable to see firearm in def's possession  from his vantage point until the moment the firearm was pointed at him was not sufficient to prove concealment.

Elghomari, 36 FLW 304, 4th DCA, Statement of child victim allowed requisite findings of reliability per statute, no discovery violation, state not required to disclose that the victim's oral statement revealing two incidents of molestation that were charged in the information, were not written or recorded and did not materially alter a prior written or recorded statement previously provided by the state to the defendant

McCloud, 36 FLW 313, 5th DCA, No error in sentencing the def to prison - Sanction based on the information that def could present a danger to the public, by voluminous theft record and not violence. Statute "danger to the public" not only person threatening physical violence or injury.

Pierre-Charles, 36 FLW 329, 2nd DCA, Hearsay - Trial court erred when it admitted head nod of def's brother which was introduced by the state as a affirmative response to father's question whether or not the def committed the murders, reasonable possibility the error effected the verdict.  Head not considered hearsay in form of nonverbal assertion

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

Friday, February 25, 2011

The Ambien Defense and The Client Who Knows Best

This past week was the final act in what I refer to as "The Ambien Defense" case.

A client and her family arrived at my office about a year ago and confided in me that the client had been arrested for DUI, a common scenario in my office. The gist of this particular case was that the client performed roadside sobriety exercises, thought she did well during the performance, but did not remember much else. She had been in an accident but did not remember driving. The only thing she did remember was going out with a friend, having some drinks, and then being dropped off at her home. The client additionally had some medical issues such as anxiety, depression, etc., and felt that the police were not very just in their arrest of her. Additionally, the client was at risk of not receiving her professional license due to the arrest.

I was hired and began the process of filing in on the case, reviewing the discovery (all the information the State has against her), and then taking depositions. The depositions are the sworn statements of the witnesses at the scene (officers, accident victim, eyewitnesses,etc. ), the goal of taking which is to find mistakes in the case as well as the perspective of the State's listed witnesses (aka the people the State Attorney's Office is relying on to get a conviction). I began the process and started researching the applicable case law when the family member and client suddenly started calling and talking about "The Ambien Defense." The client had apparently been prescribed Ambien and had taken it on the night of her arrest. She claimed that she remembered nothing and it was not her fault; it was the Ambien's fault.

The client and her family pointed me to literature that discussed reports by some Ambien users of sleep walking and not remembering their actions. I understood their belief in the defense to be misguided, but I take my duty of defending cases seriously, so I researched all available information on the subject. I found that there had never been a successfully defended trial using this defense, and as I suspected, I found that this defense would not be applicable to this client's case. First of all, Ambien is not to be combined with alcohol as it clearly states on the prescription bottle. This client knew of this prohibition, but took it anyway. Second of all, and more importantly, this particular client gave a breath test with a result of over .08, which by itself is sufficient for the state to have a guilty verdict (although it is a rebuttable presumption).  DUI is not a specific intent crime. Although there is a chance of arguing involuntary intoxication in DUI cases (rare), this client had been drinking and she knew not to take Ambien with alcohol but did so regardless. Thus, the intoxication was not involuntary. The Ambien Defense was just not applicable in her case.

Still, I read everything regarding the drug and the legal issues surrounding it, in addition to literature sent to me by the client's family, and then I shared my thoughts with them that "The Ambien Defense" was not likely a winning defense for the reasons stated above. I told them that there were other applicable defenses, but to convince 6 jurors that she was sleep walking like the characters do in the cartoon Scooby Doo was just not a story that jurors would believe. Especially not with a breath over the legal limit.

The client and family were not happy with my advice, and they then informed me they wanted a meeting with the State Attorney. THE STATE ATTORNEY. Not the Assistant State Attorney that was assigned to the case, but The Elected State Attorney, because they wanted to explain the inequities of the case to him. I, of course, explained that The State Attorney does not have private meetings with defendants in criminal cases and that is something that only happens on television. And that further more, even if it was something that could be done, it would be a terrible idea for them to do so. That sent the client and family into a tirade that I didn't know anything and that all of my plaques, years of education, and numerous victories meant nothing to them because I did not understand her situation and I did not know the law. Yes, it can be a thankless job.

They ultimately decided to hire another attorney to put on The Ambien Defense. This is the point in the story where it becomes funny to me. First, I was already paid in full, yet they decided to go somewhere else and hire another attorney. Next, I found out that they hired another attorney in town and I recognized the name. When I read more about the attorney and read the attorney's website, I found a whole section on the website dedicated to discussing Women and DUI. How interesting. The website goes on to say things such as: if you're a woman and are charged with DUI, then you need to hire a lawyer who understands women; Women have smaller bodies, smaller lungs, and other factors that cause them to be falsely accused of DUI. The menstrual period is a defense to everything. If you are having your period or just take Ambien while drinking alcohol and claim not to remember anything, then your case should be dismissed. This lawyer of course understands women and their differences. Now I feel silly, because I HAD NO IDEA THAT WOMEN WERE DIFFERENT or that the law applied to them differently.

Did I mention that the defendant made a turn against the flow of traffic and went head on with innocent motorists, causing them injury?

I had been following the case for months and actually began to think that maybe I didn't know everything about DUI defense. The case was obviously being carried on for a while, so maybe there was something that I had missed. ... I thought that for less than 30 seconds before I smiled and said to myself: "are you kidding?! The Ambien Defense?!"

The "attorney for women" who gallantly rescued this woman from lesser attorneys like me made a show of it. Motions were filed putting the State Attorney's Office on notice of the Ambien Defense, which I can only guess caused some to say "wtf is that defense?" along with multiple "are you kidding me" statements. Then the attorney filed an interesting motion that I read and wondered: are there really lawyers out there that are this dumb or are they just grandstanding for their client? For those who don't understand, "grandstanding" is when a lawyer makes a big commotion in court on their client's behalf and everyone in the room knows that the argument the lawyer is making is b.s. ... everyone except the client. That's grandstanding. When the argument gets shot down, the lawyer can say he did everything he could and his client will believe it. Well, I don't grandstand. If my client has a bad case I simply tell them. I'm not going to make a fool of myself arguing something that I know has no merit. Anyway, the case was set a couple of times for trial but was continually reset. Then, this week, the big-huge-wonderful-understanding women-knowledgeable above all other lawyers-lawyer did the most magnificent thing, and the client was so overwhelmed that she got the result she deserved......SHE PLED GUILTY TO ALL CHARGES. How do I make that sound "Ta-Da!"?

I guess I don't know the law. The poor thing actually had to take responsibility for driving while her normal faculties were impaired by alcohol and prescription medication. For all those who are reading this: Yes, I tried to be in court to hear this woman plead guilty to the charges. The Ambien Defense and The Client Who Knows Best is likely to cause another accident, and even more likely to make up ridiculous defense to avoid taking responsibility for her own voluntary actions. And remember, she is a professional, so the next time you hire an accountant, doctor, lawyer, or any other professional, be sure to look up his or her background - because this is the type of person that is what is now becoming a "professional" in our society.
Thanks for reading, commenting, and taking the time to read my thoughts. God Bless.

Wednesday, February 16, 2011

Law Updates for February 11, 2011

Steih, 36 FLW 254, 2nd DCA, Self-defense - Error to deny Judgement of Acquittal after close of State's case where the defense presented prima facie case of self-defense and State failed to prove beyond a reasonable doubt that he did not act in self-defense when he stabbed the victim.

Baker, 36 FLW 275, 1st DCA, Denial of expungement by the court - Court abused its discretion and its reasoning was insufficiently related to the facts and circumstances of the case.  Improper to deny based on the def's occupation as related to the nature of the charge.

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

Tuesday, February 8, 2011

Law Updates for February 5, 2011

Simms, 36 FLW 206, 2nd DCA,  Neither the anonymous tip, received at 10:30 p.m. on Halloween night, reporting that a thin, dark-haired, six foot tall man wearing a flannel shirt and pants was trying to open car doors on the block in a certain residential neighborhood, nor the officer's observation of the defendant was sufficient to provide the officer with a basis for officers to stop the defendant on suspicion of attempted burglary of automobiles.  Arrest for loitering and prowling cannot be based on anonymous tip and conduct observed by the officers did not create a level of imminent harm or danger needed for detention and subsequent arrest for loitering and prowling.  Error to deny motion to suppress evidence found in search incident to lawful arrest

Reyes, 36 FLW 209, 2nd DCA, Voir Dire/Cause - Court erred in denying cause in a sex case where juror described her involvement with child victims of sexual abuse and sex abuse issues in her family and jurors responses during voir dire clearly did not express a final, neutral, and detached determination to sit as a fair and impartial juror.

Ha, 36 FLW 220, 1st DCA, Motion to Withdraw - The plea should have been granted.  The Judge improperly initiated plea discussions. Judge did not allow the def to withdraw plea even though he later determined that sentence in excess of plea agreement had to be imposed.  Trial judge stated and implied that def would have received lesser sentence if pled prior to jury selection, and it appears that not all the discussion with the judge about the plea was on the record.

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

Saturday, February 5, 2011

Law Updates for January 28, 2011

Hill, 36 FLW 170, 1st DCA, Vehicle Stop-Flight - Where ofc observed def standing in front of a parked car in the vacant lot of a closed gas station in a high crime area at 1:15 a.m. and def entered the car and departed upon making eye contact with the officer, the ofc did not have reasonable suspicion justifying the stop of the vehicle.  Error to deny motion to suppress marijuana and firearm discovered in search of the vehicle.

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

Law Updates for January 21, 2011

Ruiz, 36 FLW 99, 4th DCA, Search and Seizure, Consent, Voluntariness - The Appellate court must defer to the express finding of credibility made by trial court in denying motion to suppress drugs found in def's apartment.  Although pages on record, Appellate Court finds police version of events regarding def's consent unbelievable - good dicta

M.M., 36 FLW 105, 1st DCA, Resisting officer without violence - Juvenile's refusal to give name or identification to requesting officer did not constitute resisting or obstructing where juvenile was neither under arrest nor otherwise lawfully detained at the time of refusal.

M.W., 36 FLW 111, 2nd DCA, Obstruct or oppose officer without violence, lawful execution of legal duty - Trial court erred in finding that juvenile committed a delinquent act of obstructing or opposing an officer without violence where obstruction occurred during warrant less arrest for a misdemeanor assault outside the presence of an arresting officer.  School administrator is not a fellow officer whose observation of the assault could be imputed to the arresting officer.

Caldwell, 36 FLW 115, 2nd DCA, Voir Dire, Cause - Trial court abused its discretion when it denied def's challenge for cause to juror whose responses brought into question her ability to be impartial to a def who might not testify.  Good language is not the defense duty to rehabilitate the juror and reasonable doubt is not overcome by the juror's silence to a question later to the whole panel as to that general issue.

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

Tuesday, January 18, 2011

Law Updates for January 7, 2011

Thermidor, 36 FLW 5, 4th DCA, Abuse of discretion for court to allow evidence of uncharged crime of armed robbery, taxi cab and victim in main case could not identify the defendant in court - not harmless, where dissimilarities outweighed similarities and there did not appear to be anything especially unique or circumstances which would point to the defendant.

Tripoli, 36 FLW 36, 4th DCA, Collateral crimes evidence - Erred in admitting uncharged collateral acts where testimony about the def's actions of placing another child on his lap while he was tutoring the child was not probative of def's guilt or innocence of charge of lewd and lascivious conduct against the victim, beyond it's showing def had a propensity to molest children or it was his character to do so-not harmless.

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

Tuesday, January 11, 2011

No Refusal DUI Checkpoints?

Florida Statutes 316.1933 and 316.1932 allow blood draws to be used only in a limited number of scenarios: either there has been serious bodily injury, a fatality, or the person from whom blood is to be drawn appears in a medical facility for treatment and a breath test is impractical. Consensual blood tests are of course always permitted... but we would hope that in this day and age no one would willingly agree to one.

A blood draw is only supposed to be requested when one of the above statutorily prescribed circumstances exists. When the circumstances are not present, the legislature provided for the use of breath tests/urine tests. None of this apparently matters any more, however, in light of Florida’s new “No Refusal DUI Checkpoints.” Now if you refuse a breath test during a traffic stop and a judge happens to be on site and issues a warrant, police can perform a mandatory blood test.


Judges are supposed to be neutral like game referees; they have no right to make their own laws or help police in the enforcement of the statutes. Since when do judges have the power to act in concert with law enforcement? What happened to separation of powers? Are these judges going to ignore what the legislature has written, specifically chapter 316 of the Florida Statutes? Is there going to be a new roaming judicial division set up specifically to follow police around and issue warrants for otherwise unlawful blood draws? Images of circus clown cars come to mind. If you refuse to talk when being questioned is the judge going to hit you with his gavel? Is he going to write an order that waives all of your rights?

What this DUI checkpoint policy is essentially doing: helping the local government justify their existence and churning out more money to pay for it. Police will be able to make more arrests and pad their arrest numbers, justifying more personnel and requiring more money to run. This is on top of the overtime they already get for each DUI arrest. More overtime means Mr. Policeman makes more money, which means we pay more taxes, the government gets larger and more powerful, and your freedoms diminish. Which is all fine and dandy, until you find yourself going for a ride in a police car and requiring an attorney.

Any judge that proposes this should decide what they really want to be: Judges, Police Officers, or Politicians. Attention Judges: If you want to be a police officer and fight crime, go take a fitness test and enter the police academy. If you’re not happy with the laws of the state and feel compelled to change them, go schmooze, collect money, and run for a higher political office. If you want to remain a judge, then go back to the Bill of Rights, the Florida Constitution, the Florida Statutes and READ THEM. Pay specific attention to the 5th and 14th amendment

Just my humble thoughts.

Copyright (c) 2011, Law Office of Roger P. Foley

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

Wednesday, January 5, 2011

Florida Tickets and Suspensions

Most people do not know what will happen to their Florida license if they receive a ticket in another state. This is understandable because traffic compacts between states are not uniform and can be complicated. There are Non-Resident Violators Comapcts, Drivers License Compacts, and the National Driver Register, each of which have varying rules and requirements.

Florida has adopted the Non-Resident Violators Compact (NRVC) and the Drivers License Compact (DLC). Under these compacts, the "other state" a ticket is received in will send the "home state" the ticket information and it will be added to the "home state's" driving record. The information sent to the "home state" has to identify the person convicted, describe the violation, and indicate what kind of plea was entered.

This means that when a person who holds a Florida license receives a ticket in another state and it is reported to Florida, that person will receive points in Florida (if the ticket is one for which points would be assessed pursuant to chapter 322 of the Florida Statutes). On top of that, Florida does not allow any school or program to remove points for a ticket received in another state. So, while you're driving on your family vacation and you get busted for speeding, you may be taking those points home with you if you admit guilt in the other state, and there isn't a whole lot you can do about it after the fact.

Florida will also suspend your Florida license if you fail to pay a ticket reported by another state and it is not dismissed by that state.

Drivers license issues are sometimes a little more complicated than they may first seem and we all know how difficult it is to be stuck without a license. This is why it's important to contact qualified attorneys to review your ticket options.

Copyright (c) 2011, Law Office of Roger P. Foley

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