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.

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