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.

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