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.