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.

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.

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.