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.