tag:blogger.com,1999:blog-76833677625589230462024-03-13T10:17:19.270-07:00Florida Law Updates and DiscussionsDiscussions and Summaries of updates to Florida Law from the web pages of Criminal Defense Attorney, Roger P. Foley. www.lawyerfoley.comWe Don't Judge - We Defendhttp://www.blogger.com/profile/06338054715868295900noreply@blogger.comBlogger192125tag:blogger.com,1999:blog-7683367762558923046.post-46865697315539173552012-04-26T12:48:00.000-07:002012-04-26T12:48:36.799-07:00<b>Juvenile Crimes in West Palm Beach and Fort Lauderdale<br />Arrested for Possession of Marijuana in Fort Lauderdale? </b><br />
<b>Arrested for Possession of Marijuana in West Palm Beach? </b><br />
<b>Know Your Legal Rights When Dealing With Police in Florida.</b><br /><br /><br /><b>Can the police search me whenever they want?</b> <br />
The answer is NO. <br />
The police are allowed to search you for weapons only, and only if, they have a reasonable suspicion to believe you may be carrying a weapon. If the police feel something that they reasonably believe to be a weapon they may retrieve it from your pockets or waistband. This is permitted for a Police Officer’s Safety. The police cannot go into your pockets for anything else. <br />
<br />
For example, if you are walking home from school and a police officer stops you and requests to search your person then you should politely respond, “ I do not consent to searches.” If the officer feels that safety is an issue, and they will always say that safety is an issue, they will pat you down. A “pat down” means they can feel the outside of your clothing for any weapons. If they feel something that is not a weapon and tell you to remove the item you must repeat the magic words, “no, I do not consent to searches” because if you remove the item from your pocket and it is something illegal you will be arrested. If the police go into your pocket and remove it without probable cause to arrest that is illegal. If you are illegally searched and arrested then your criminal defense lawyer will be able to file a motion to suppress the evidence and possibly dismiss the criminal case. <br />
Please remember never touch or pull away from a police officer, as your problems will greatly increase. Simply, repeat the magic words, “Officer, I do not consent to searches” and repeat several times if they don’t listen. Never volunteer information to a police officer. The only thing you should supply them with is your name. Your constitutional rights are solid and they say that you don’t need to talk to the police. So do not talk to them. Do not tell them where you are going, what you have been doing or your reason to be at your current location as it is none of their business. If you feel you need to answer a question, think twice. The police are paid to arrest people. Everything you say will be used against you. If a police officer asks me why I am at a particular location I say, “personal business.” That is sufficient. You do not need to answer their questions-respectfully decline to answer questions.<br /><br /> If you have been arrested then the police are allowed to fully search you after you are arrested. They can search your pockets, and belongings that you are carrying, etc. If arrested, remain silent and never pull away or touch a police officer or it will only get worse. Remain silent and request a lawyer. The wait is long when you are arrested but remain silent as eventually you will have a lawyer and your lawyer will fight your fight, not you. If you fight or argue with police they will add additional charges-remain silent except when asking for a lawyer. Asking police officers questions can waive your constitutional rights. Police are arresting you so do you really think they are your friend? Common sense tells you that they are not and the Florida Supreme Court has ruled that police officers are allowed to lie to suspects during their investigation. Expect everything they say to be a potential lie. Remain Silent!<br /><br />The case below involves a juvenile in Miami-Dade County that was being investigated for a burglary and was being detained temporally by police. At the time, the police officer detained him, there was not sufficient probable cause to arrest him and the police were only allowed to pat him down for weapons. The police in this case searched his pockets and found marijuana. The search was deemed illegal by the District Court of Appeal because the juvenile had not been arrested and they had no reason to search him other than to pat him down for weapons. <br /><br />Note: Although the case was decided in Miami-Dade County, the law is the same throughout Florida. Yes, there are different District Courts of Appeal (Appellate Courts) and sometimes they reach different conclusions, but if, and when that happens, there are often distinguishing factual differences that explain the different rulings. If two or more District Courts of Appeal give conflicting conclusions on the same issue the case is sent to the Florida Supreme Court for a defining answer.<br />
<br />Check out the case below to understand the Court’s logic and why the search was illegal.<br /><br />D.S., A JUVENILE, Appellant, vs. THE STATE OF FLORIDA, Appellee. 3rd District. Case No. 3D09-2558. L.T. Case No. 09-2521-A. Opinion filed April 11, 2012. An Appeal from the Circuit Court for Miami-Dade County, Mindy S. Glazer, Judge. Counsel: Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant. Pamela Jo Bondi, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.<br />(Before SHEPHERD, SUAREZ, and LAGOA, JJ.)<br />(SUAREZ, J.) D.S., a minor, appeals from a withhold of adjudication of delinquency entered following an adjudicatory hearing. We reverse, as the trial court should have granted the motion to suppress filed by D.S.<br />D.S. was detained, along with other persons, on suspicion of burglary. He was later arrested for loitering and prowling and for suspected marijuana. He was not under arrest at the time another officer brought D.S. to Officer Lambert, who understood that she was merely detaining him while the other officers finished their investigation. Officer Lambert proceeded to fully search D.S., not pat him down, prior to placing him in her squad car to await the outcome of the investigation. She did not read him his Miranda1 rights, she did not see any bulges that might give her probable cause to search.2 She testified that she routinely searches suspects prior to placing them in her vehicle as a safety precaution. Upon fully searching D.S., she discovered a baggie of marijuana and at that point she arrested him.<br />The trial court erroneously denied D.S.'s motion to suppress. D.S. was not under arrest at the time of the search, he was merely detained and awaiting the conclusion of the officers' investigation into the burglary call. Officer Lambert's search of D.S. exceeded her authority where there was no reasonable suspicion to believe D.S. was armed and dangerous, and he had not yet been arrested. See D.B.A. v. State, 962 So. 2d 406 (Fla. 2d DCA 2007) (holding that The Florida Stop and Frisk Law authorizes a limited search to disclose a dangerous weapon where an officer has probable cause to believe that the detainee is armed with a dangerous weapon, that search may not go beyond a pat down of the detainee's outer clothing, and only if an officer reasonably believes that an object he feels during a pat down is a weapon may he seize the object) (citations omitted). We agree with the holding in T.L.F. v. State, 536 So. 2d 371, 372 (Fla. 2d DCA 1988), which provides that:<br /><br />Under the circumstances of this case, an arrest would only have been appropriate if probable cause had existed to arrest appellant for the burglary. The police cannot be allowed to use the loitering and prowling statute to detain an individual for another offense for which probable cause is lacking and then use the fruits of the unlawful detention as evidence that the individual committed the other offense. . . . To allow such “bootstrapping” of evidence would lead back to the dark ages when police were able to use the loitering and prowling statute as a catchall charge to arrest persons at their whim.<br />We conclude that the order denying the motion to suppress should have been granted and accordingly, we reverse D.S.'s adjudication of delinquency and remand with directions that he be discharged.<br />Reversed and remanded with directions.<br />__________________<br />(SHEPHERD, J., concurring specially.) If the facts were as the State and the dissent propose, I would agree the adjudication should be upheld. But, they are not, so I cannot. The State argues, and the dissent accepts, that D.S. was searched incident to an arrest. However, the record reflects D.S. was not under arrest for any crime -- loitering and prowling, burglary, or anything else -- at the time he was searched by Officer Lambert. The record tells the tale.<br /><br />Officer Veronica Lambert<br />Officer Veronica Lambert testified she responded to a burglary in progress. She did not talk to any other officers about the investigation. Pursuant to protocol -- five police units already were on the scene -- she “just stayed off” from the house. Although she did not have a clear view of the house, she saw D.S. emerge from the house with an officer escort. The officer brought D.S. to her to hold him pending completion of the investigation. There were no bulges or other evidence of a dangerous weapon on his person.<br />As even the dissent acknowledges, at that time, “[D.S.] was being detained” by Officer Lambert in “reference an investigation.” See dissent p. 17. He was not arrested. The search occurred before any arrest. This fact is unambiguously confirmed by Officer Lambert in her testimony:<br /><br />Q When you came in contact with D.S., why was that?<br /><br />A Well originally he was one of the suspects that were taken out of the house.<br /><br />Normally what they do in a situation where you have a burglary in progress, if there's numerous suspects we like to keep them separate.<br /><br />. . . .<br /><br />We want to keep them separate so that they don't come up with a collaborated story.<br /><br />I received one suspect, and the other ones were separated.<br /><br />Q Did you go up to D.S., or did another officer bring D.S. to you?<br /><br />A He was brought to me.<br /><br />Q Okay, but did you see him coming from the vicinity of the house?<br /><br />A Yes.<br /><br />Q Is that the house where the burglary in progress was reported?<br /><br />A Yes.<br /><br />Q Okay. Now, when you came in contact with D.S., what did you do next?<br /><br />A I know that he was searched because I had to put him in my vehicle. But I don't recall if I put handcuffs on or if they were already on. I don't recall that part of it, but I know that I did search him because he was going into my vehicle.<br /><br />Q Now why exactly did you search him because he was going into your vehicle?<br /><br />A That's something that we do for officer safety. It's an officer safety issue. Just to make sure there's nothing that will harm me, or harm him[ ], or anything like that.<br /><br />Q Do you do it every time you arrest somebody?<br /><br />A Absolutely.<br /><br />Q And do you -<br /><br />A Arrest, detain, it doesn't matter. For whatever reason.<br /><br />Q Upon searching the Defendant did you find anything?<br /><br />A Yes.<br /><br />Q What did you find?<br /><br />A A bag of marijuana, suspect marijuana.<br /><br />. . . .<br />(emphasis added.)<br />On cross-examination, Officer Lambert again confirmed D.S. was not arrested when he was brought to her:<br /><br />Q Was he arrested when he was brought to you?<br /><br />A Well, I mean at that time he would have been detained.<br /><br />Q Okay.<br /><br />A Okay?<br /><br />Q When you made contact with D.S., did you read him Miranda?<br /><br />A No, I did not.<br /><br />Q Did you ever ask him any questions as to why he was in the house?<br /><br />A No ma'am.<br /><br />Q Did you subsequently arrest him?<br /><br />A I'm sorry?<br /><br />Q You said when he was brought out to you he was detained?<br /><br />A Right.<br /><br />Q Then, you thereafter arrested him?<br /><br />A Right. After the marijuana was found on his person.<br /><br />Q Okay, but prior to that was there a basis to arrest him?<br /><br />A Well, as far as the other officers that brought him out of the house, no. As far as I'm concerned with that, he was being detained by me in reference to them finishing their investigation.<br />(emphasis added).<br />The final confirmation of this fact occurred on redirect examination with the following colloquy:<br /><br />Q Okay, so do you know if the officers who handed him off to you, if they were arresting him for anything, including loitering and prowling? Or burglary, or -<br /><br />A Yes. It wasn't like a hold to identify. It was based on him being held pending investigation and getting information to charge him with, whatever charges, whether it be L and P, or burglary, or whatever the case was.<br /><br />Q But ultimately there had already been a decision that he -<br /><br />A Right.<br /><br />Q -- should be detained?<br /><br />A Right.<br /><br />Officer Anthony Collier<br />Officer Collier arrived on the scene after Officer Lambert. Officer Collier testified as follows:<br /><br />Q Upon arrival who did you make contact with?<br /><br />A Upon arrival I made contact with D.S., the Defendant.<br /><br />Q What did you do in the course of your investigation?<br /><br />A I believe Officer Veronica Lambert was dealing with him, gathering some information from him. At that point, I took possession of him.<br /><br />Q You said that you responded to a burglary in progress. Did you make contact with any officers on scene that had previously responded?<br /><br />A Officer Lambert.<br /><br />Q What was the nature of Officer Lambert's investigation?<br /><br />A She explained to me that she had detained the Defendant, and she patted him down, and she was able to retrieve a baggy of suspected marijuana from his right front pocket.<br /><br />Q Were you investigating any other charges on scene?<br /><br />A Yes, I was.<br /><br />Q What other charge were you investigating?<br /><br />A Loitering and prowling.<br /><br />Q Did you speak with anyone regarding the loitering and prowling?<br /><br />A Yes, I did.<br /><br />Q Who did you speak to?<br /><br />A . . . Officer Lambert.<br /><br />Q What were the results of Officer Lambert's investigation?<br /><br />A She advised me that there were some other officers that responded to the scene as well, and that upon getting there they discovered the Defendant somewhere inside of the home.<br /><br />. . . .<br /><br />Q [W]as the homeowner inside the home?<br /><br />A The homeowner wasn't inside the home, but I spoke to a witness who was on the scene.<br /><br />. . . .<br /><br />Q What did [the witness] tell you he observed?<br /><br />A He told me he was visiting a resident at 2515 Northwest 158 Street, and he observed three black male defendants breaking down the door of the home.<br /><br />Q Did he tell you that the Respondent was one of those individuals he observed?<br /><br />A Yes.<br /><br />Q Based on your investigation on the scene, did you make a determination as to probable cause?<br /><br />A Yes, of course.<br /><br />Q What was that determination?<br /><br />A Based on the burglary in progress that I responded to.<br /><br />Q What was the Respondent arrested for?<br /><br />. . . .<br /><br />A The arrest was for loitering and prowling, and for suspected marijuana.<br />(emphasis added).<br />On cross-examination, Officer Collier stated D.S. was “detained” when he arrived on the scene.3 He confirmed he arrested D.S. for loitering and prowling based on what fellow officers told him, since “[t]hey're officers just like me.”<br /><br />Analysis<br />The State's position during the hearing on the motion to suppress was that “[t]his was a search incident to arrest.” However, there can be only one conclusion drawn from the actual testimony: D.S. was not placed under arrest until after he was searched. It might have been that D.S. could have been arrested before the search, but, we, of course, must deal with the arrest we have, not the arrest we wish we had. As the Oregon Supreme Court has explained:<br /><br />[A]n arrest is the crux of a “search-incident-to-arrest.” By definition a search ‘incident to' an arrest is a warrantless search that is justified by the fact that a suspect is arrested. The justification arises from the practical consequences of taking a person into custody, and it cannot extend beyond those practical consequences if the fact of the arrest is its premise.<br />State v. Owens, 729 P.2d 524, 533 (Or. 1986) (en banc) (quoting State v. Brown, 721 P.2d 1357, 1370 (Or. 1986)).<br />The dissent urges that two cases from this court, Freeman v. State, 909 So. 2d 965 (Fla. 3d DCA 2005), and Thomas v. State, 395 So. 2d 280 (Fla. 3d DCA 1981), require affirmance. However, in each case, the arrest preceded the search. Also in each case, the defendant argued the arrest was made on an unlawful charge and the search therefore was illegal. We held the searches nevertheless were lawful because in each case there was probable cause to arrest the defendant on another charge. In other words, the justification for the exception to the warrant requirement still applied.<br />For example, in Freeman, the defendant, Andrew Freeman, and another man were stopped at 4:30 a.m., carrying a large commercial-grade chain saw, a gas-powered weed whacker, a hedge trimmer, and two leaf blowers. Freeman, 909 So. 2d at 966. Freeman also was towing another bicycle alongside the one he was riding. Id. Noticing the substantial amount of lawn equipment and extra bicycle being carried by Freeman, Officer Brad Taylor, aware of a recent rash of lawn tool thefts from garages and lawn sheds in the vicinity, stopped the two men. After Freeman proved unable to describe the make, manufacturer, or description of what he claimed to be his own equipment and gave a false explanation why he was carrying the equipment around 4:30 a.m., Freeman was arrested for loitering and prowling. Id. at 967. He then was transported to the police station, where he was informed of his Miranda rights,4 and then gave a written statement to the officer. Id.<br />Freeman moved to suppress the fruits of the theft and the post-arrest statement on the ground there was no probable cause to support his arrest for loitering and prowling. We affirmed the trial court's denial of the motion, stating:<br /><br />[W]hile the circumstances of this case and Freeman's behavior may not have been sufficient to support a loitering and prowling conviction, a crime for which he was neither tried nor convicted, they were more than adequate to support his arrest [for theft]. We therefore conclude that there was probable cause for the arrest and that Freeman's motion to suppress was properly denied.<br />Id. at 968 (footnote omitted).<br />Freeman, in turn, relies on Thomas. Thomas is factually indistinguishable from Freeman. Like Andrew Freeman, Andrew Thomas also was arrested for loitering and prowling. Thomas, 395 So. 2d at 280. A search of Thomas' person was conducted incident to that arrest. Thomas moved to suppress the fruits of a burglary found during the search. Id. Despite the fact the officers were of a mistaken and contrary belief at the time of the arrest, probable cause existed at the time of the search to arrest Thomas for the crime of burglary. Id. at 281. We affirmed the denial of the motion to suppress, stating, “Where, by objective standards, probable cause to arrest for a certain offense exists, the validity of an arrest does not turn on the fact that an arrest was effected on another charge.” Id. In the case before us, there was no arrest before Officer Lambert performed her search.<br />The police had every right to hold D.S. while they completed their investigation in this case. See State v. Reyes, 4 So. 3d 46, 48 (Fla. 3d DCA 2009) (discussing investigatory stops, during which an officer may temporarily detain an individual if the stop is supported by a reasonable suspicion that person committed, is committing, or is about to commit a crime) (citing Popple v. State, 626 So. 2d 185, 186 (Fla. 1993)). However, as the United States Supreme Court stated forty-five years ago in Sibron v. New York, 392 U.S. 40 (1968) -- the simultaneously issued, but lesser known cousin of Terry v. Ohio, 392 U.S. 1 (1968) -- absent an arrest, the officer “must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.” Sibron, 392 U.S. at 64 (citing Terry v. Ohio, 392 U.S. at 21); Reyes, 4 So. 3d at 50; see also § 901.151(5), Fla. Stat (2009). There are no such facts to justify the search in this case. I know of no case that stands for the proposition an officer can search an individual simply because the individual is being placed in a police vehicle. See L.C. v. State, 23 So. 3d 1215, 1219 (Fla. 3d DCA 2009).<br />The trial court erred by refusing to suppress the marijuana found on D.S. in this case as fruit of an illegal search and seizure. See Wong Sun v. United States, 371 U.S. 471, 484 (1963). I agree the adjudication should be reversed.<br />__________________<br />(LAGOA, J. (dissenting).) Because I disagree with the majority's conclusion that there was no probable cause to arrest D.S., I respectfully dissent.<br />D.S. was arrested by Officer Collier for loitering and prowling and possession of marijuana. The petition charged him with possession of cannabis. His argument below, and on appeal, was that there was no probable cause to arrest him for loitering and prowling, and therefore, the search, which revealed the marijuana, was illegal.<br />In support of its reversal, the majority cites to cases from the Second District. This Court, however, is bound by its own precedent and both Freeman v. State, 909 So. 2d 965 (Fla. 3d DCA 2005), and Thomas v. State, 395 So. 2d 280, 280-281 (Fla. 3d DCA 1981), are directly applicable to this case. As this Court noted in Freeman, 909 So. 2d at 967-68:<br /><br />In Thomas, arresting officers believed that the circumstances at the time of Thomas's arrest justified an arrest for loitering and prowling. Thomas maintained that an arrest on that charge was unlawful, and thus that the evidence obtained as a result of that arrest should be suppressed. We affirmed Thomas' conviction finding that there existed, notwithstanding the officers' mistaken and contrary belief, probable cause to arrest Thomas on a charge of burglary. Thus, we concluded that “[w]here, by objective standards, probable cause to arrest for a certain offense exists, the validity of an arrest does not turn on the fact that an arrest was effected on another charge.” Thomas, 395 So. 2d at 280-81 (citing Chaney v. State, 237 So. 2d 281 (Fla. 4th DCA 1970), and United States v. Ullrich, 580 F.2d 765 (5th Cir. 1978)). We went on to observe that “given the existence of probable cause to arrest Thomas for the offense of burglary, the validity of the search of Thomas is unaffected by the fact that the search preceded his formal arrest on that charge.” Thomas, 395 So. 2d at 281 (citing Rawlings v. Kentucky, 448 U.S. 98, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980), and Dixon v. State, 343 So. 2d 1345, 1347 n. 3 (Fla. 2d DCA 1977)); see also Blanding v. State, 446 So. 2d 1135, 1136 (Fla. 3d DCA 1984) (“[a]n arrest based on probable cause is not rendered unlawful because the arresting officer attaches an improper label to it”).<br /><br />“Probable cause to arrest exists when the totality of the facts and circumstances within the officer's knowledge would cause a reasonable person to believe that an offense has been committed and that the defendant is the one who committed it. The facts constituting probable cause need not meet the standard of conclusiveness and probability required of the circumstantial facts upon which a conviction must be based. An officer is permitted to take a realistic view of the facts in making a probable cause determination, ‘for probable cause is a matter of practicalities, not technicalities.' ” State v. Cortez, 705 So. 2d 676, 678 (Fla. 3d DCA 1998) quoting State v. Russell, 659 So. 2d 465, 468 (Fla. 3d DCA 1995) (other citations omitted).<br />(Emphasis added). Therefore, even if no probable cause existed to arrest D.S. for loitering and prowling, as long as there was probable cause to arrest him on another charge, the search incident to arrest was lawful.5 See Lugo v. State, 992 So. 2d 415, 418 (Fla. 3d DCA 2008); State v. Orozco, 607 So. 2d 464, 465 n.1 (Fla. 3d DCA 1992).<br />Here, the officer who conducted the search, Officer Lambert, testified that she responded to the scene on a call for a burglary in progress, and that she saw D.S. being escorted out of the house. She testified that he was being detained in reference to the investigation of the call for a burglary in progress. The arresting officer, Officer Collier, testified that he responded to a burglary in progress. He also testified that when he arrived at the scene he spoke to a witness who observed D.S. and two others breaking down the door to the home in which he was found by police officers. It is undisputed that D.S. was found inside the home. Given this testimony, there was probable cause to arrest him for burglary. See State v. Clark, 721 So. 2d 1202 (Fla. 3d DCA 1998); Brescher v. Pirez, 696 So. 2d 370 (Fla. 4th DCA 1997); State v. Cote, 547 So. 2d 993 (Fla. 4th DCA 1989); McKee v. State, 430 So. 2d 983 (Fla. 3d DCA 1983). Accordingly, the fact that he was arrested for loitering and prowling does not render the search incident to arrest unlawful.<br />I would affirm.<br />__________________<br />1Miranda v. Arizona, 384 U.S. 436 (1966).<br />2The record indicates that D.S. may have been in handcuffs at the time.<br />3Officer Collier misspoke when he stated earlier in his testimony that Officer Lambert “patted him down.” Officer Lambert testified consistently during the course of her testimony that she “searched” D.S.<br />4Miranda v. Arizona, 384 U.S. 436 (1966).<br />5Not only is this Court bound by its own precedent of Freeman and Thomas, but neither case relied upon by the majority is applicable to the case at hand. The majority's reliance on D.B.A. is misplaced because this case does not concern a temporary stop or detention pursuant to the Stop and Frisk Law, but rather, was a search incident to arrest. See Thomas, 395 So. 2d at 281. T.L.F. is also not applicable because in that case the robbery occurred days before the defendant's arrest, 536 So. 2d at 372, unlike here, where an eyewitness observed and reported D.S. breaking down the door to the home in which he was found.<br />If you are arrested in Fort Lauderdale and need a Criminal Lawyer, contact The Law Office of Roger P. Foley at (954) 467-2946 <br />If you need a Criminal Defense Lawyer in West Palm Beach, contact The Law Office of Roger P. Foley at (561) 746-7076<br />Mr. Foley is available to lecture at your High School and/or College University regarding Your Legal Rights When Dealing With Police. Contact him at the above referenced numbers for more information. <br /><br />We Don't Judge - We Defendhttp://www.blogger.com/profile/06338054715868295900noreply@blogger.com2tag:blogger.com,1999:blog-7683367762558923046.post-58402190410570430012012-03-25T12:11:00.000-07:002012-03-25T12:11:27.138-07:00Resisting A Police Officer With Violence in FloridaResisting A Police Officer With Violence in Florida is a Felony Crime. If you are arrested for the crime of <b>Resisting an Officer With Violence</b> in South Florida you should contact <a href="http://www.lawyerfoley.com/">Criminal Lawyer Roger P. Foley.</a><br />
<br />
Mr. Foley has offices in <a href="http://www.rpfoley.com/">Broward</a> and <a href="http://www.lawyerfoley.com/">Palm Beach Counties.</a><br />
<br />
Here are some things that you should know about the crime of Resisting an Officer With Violence:<br />
<ol><li>Its not hopeless - you can fight your criminal case. (See Florida Statute 843.01 for full details</li>
<li>Resisting An Officer with Violence is a third degree felony</li>
<li>A third degree felony is punishable by a maximum of five (5) years in a Florida Prison</li>
<li>When Police use excessive force they often claim that the defendant resisted with violence and the defendant’s resistance is what caused the police to use force against him/her. It justifies your bruises. If you did not resist, then they would not have taken you to the ground,</li>
<li>To find you guilty of Resisting an Officer With Violence the state must prove 4 elements beyond and to the exclusion of a reasonable doubt:<ol><li>(Defendant) knowingly and willfully [resisted] [obstructed] [opposed] (victim) by [offering to do] [doing violence] to [him] [her]. Offering to do violence means threatening to do violence. </li>
<li>At the time, (victim) was engaged in the [execution of legal process] [lawful execution of a legal duty]. </li>
<li>At the time, (victim) was [an officer][a person legally authorized to execute process].</li>
<li>At the time, (defendant) knew (victim) was [an officer] [a person legally authorized to execute process].</li>
</ol></li>
<li>The crime of Resisting an Officer With Violence is an offense that can be sealed or expunged from your record if any of the following are true:<ol><li>The state attorney’s office files a No Information - they decline to file official charges.</li>
<li>The case is dismissed on a technicality.</li>
<li>The case is Nolle Prossed by the State Attorney’s Office.</li>
<li>The case goes to trial and you are acquitted of the charge.</li>
<li>You receive a Withhold of Adjudication and have no other convictions on your criminal record.</li>
</ol></li>
<li>Get the notion out of your head that you can’t win. If you did not commit the crime, hire a Criminal Defense Trial Lawyer that will be your voice in the courtroom. Just because a police officer says it is so does not mean that your case is impossible.</li>
<li>Hire the best criminal defense lawyer possible to defend you. Remember you can choose the players on your team. Talk to several lawyers and then pick the Criminal Lawyer that makes you feel most comfortable.</li>
</ol><br />
If you are charged with <b>Resisting a Police Officer With Violence</b>, contact Florida Criminal Defense Lawyer, Roger P. Foley.<br />
<br />
Mr. Foley is an aggressive criminal defense attorney who has a no-nonsense approach to defending his clients. When accepting a criminal case he will do everything legally possible to win your case. If your looking for a Criminal Defense Lawyer that brings his best effort on every case then contact Florida Criminal Attorney, Roger P. Foley. <br />
<br />
Mr. Foley has been recognized as one of “Florida’s Legal Elite.” Roger P. Foley has also been recognized as a “Florida Super Lawyer.” <br />
<br />
<br />
<div style="font-family: inherit;"></div><div style="font-family: inherit;"><a href="http://www.lawyerfoley.com/">The Law Offices of Roger P. Foley, P.A.</a></div>We Don't Judge - We Defendhttp://www.blogger.com/profile/06338054715868295900noreply@blogger.com1tag:blogger.com,1999:blog-7683367762558923046.post-33387740115211196132012-03-18T09:08:00.000-07:002012-03-18T09:08:33.689-07:00Diversion Program Issues<i>“If you tell the truth, you don’t have to remember anything.”</i> – <b>Mark Twain</b><br />
<br />
I have often wondered why some people take the time to find the right criminal attorney to represent them, sign paperwork, pay them, etc., and then feel the need to be dishonest. If I am the one who is going to represent you and defend you diligently regardless of your crime, it would be best if you were upfront with me. No?<br />
<br />
Let me share a great example of what happens when clients lie to their attorney. Perhaps in reading the outcome some people will think twice if they are ever asked the following question:<br />
<br />
“<b>Have you ever been arrested for a crime in Florida or anywhere else in the world?</b>”<br />
<br />
I have clients come into the office all the time and one of the first questions that they are asked on their intake sheet is the question, "Have you ever been arrested? Have you ever been convicted?" “No, Mr. Foley, I swear” and “Nope, my record is clean” are often their response.<br />
<br />
The reason this question is asked to my client is because if they have not been arrested and they are truly a first-time offender, they may be eligible for some type of diversion program.<br />
<br />
“What is a diversion program?” First off, let me state again, it is for <b>first-time offenders</b> only. So, if you have racked up a few misdemeanors or felonies convictions, you are ineligible. Diversion programs are great for those who have been arrested for their first offense, and if the offender follows all of the stipulations set forth for the duration of the program (usually 6-12 months), then the case is dismissed and life continues on.<br />
<br />
What is involved in applying to a diversion program? That is where I come in. Not every crime is eligible and some crimes are admitted on a case-by-case basis. Entering any diversion program requires paperwork, background checks, and contacting the department of corrections, supervisor signatures, and several court dates. It takes time and patience, and as I mentioned earlier, there are a lot of forms that come along with the process. It is worth it for someone who is a first-time offender, as it is a guaranteed victory for someone who follows the rules and has no previous arrests or convictions. If the offender does everything requested of them then the case is dismissed. No attorney, no matter how great they are in the courtroom can guarantee you a victory but once in a diversion program, it is guaranteed that your case will be dismissed if you adhere to the rules.<br />
<br />
Here is where the aggravating part comes in: I start every conversation with my clients by telling them that what they say in my office is confidential. I try to get to know each client and make them feel as comfortable as possible. Why do some clients lie to me? I wish I knew the answer to that. What is frustrating about a client doing this in regards to the diversion program is that I have spent months filing paperwork, making phone calls, kissing the ass of supervising attorneys at the State Attorney’s office, and often going to several court appearances while I wait for a document that say my client’s request to enter a diversion program is granted. I wait and wait only to receive a letter for the State Attorney’s office and Corrections that my client is ineligible because they have previous been arrested and have a criminal record.<br />
<br />
Because this has happened repeatedly, I have had no choice but to do something about it. Now, all of my contracts let the client know that if you lie to me and I spend time trying to get you into a diversion program and you are not admitted because of a prior arrest, then my work for you is complete, you do not get a return on your money. If you wish, you can re-hire me as your lawyer for your case that will now be fought in a courtroom. End of story.<br />
<br />
There are a few particulars that I want to mention about diversion programs. Many diversion programs are discretionary. It is up to the prosecution to make that decision. Sometimes juvenile records are used against you when applying to a diversion program, sometimes they are not. For example, if you are 21 years of age and are arrested for the first time as an adult you would think that you are eligible to enter a diversion program. That is not always correct as the state attorney can and often does look at your juvenile record and that juvenile record can prevent you from entering a diversion program. Remember, it’s not a right it’s discretionary.<br />
<br />
Second, if you are lying about not having any prior arrests or convictions, I will find out eventually. One client recently told me they had no priors, only to find out they were an eight time convicted felon! No surprise he was not eligible for a diversion program.<br />
<br />
Remember, an attorney can withdraw from any case if they cannot effectively communicate with their client. Do you find it easy to effectively communicate with someone who is lying to you? Me neither. Please, just be upfront and I will give you my best.<br />
<br />
If you read this far, I want to thank you for taking some time to hear what I have to say and hopefully you learned a thing or two about the legal system. I do not consider myself the next award winning writer, but I do like to discuss a variety of subjects on my blog and this was one that I thought was important.<br />
<br />
Thank you.<br />
<br />
If you have any questions regarding pre-trial diversion programs for either Felony or Misdemeanor cases contact <a href="http://www.lawyerfoley.com/">The Law Office of Roger P. Foley, P.A.</a>We Don't Judge - We Defendhttp://www.blogger.com/profile/06338054715868295900noreply@blogger.com1tag:blogger.com,1999:blog-7683367762558923046.post-62686488823034053992012-01-28T06:28:00.000-08:002012-01-28T06:28:05.427-08:00Grow Houses in Rental HomesHydroponics operations are often found within foreclosed and abandoned homes, however, such operations are also run in rental homes. <br />
<br />
Many marijuana growers in Palm Beach County rent homes from landlords as tenants solely for the purpose of creating a grow house within the space. Growers typically look for homes in Palm Beach County with large attic space to accommodate the technology that will be used. In homes with sparse attic space, holes are cut in walls to provide for adequate ventilation. Operations are also run underneath the rental space to provide the needed ventilation. Ventilation is needed in grow houses not only because of the high intensity lamps utilized but also because the irrigations systems used for plant grown cause dampness in the home. In addition to physically altering the residence for ventilation, specialized curtains, flooring, and insulation are also used and modified to reduce the heat within the house. <br />
<br />
Hydroponics operations in rental homes are discovered by landlords requesting to inspect the property. Many people rent homes and never even see their landlords throughout the entire lease period. Landlords have the contractual right under the lease to inspect their rental properties upon giving merely 24 hour notice to renters. Many landlords in Palm Beach County are wary of the fact that growers utilize rental homes for grow houses. When they begin to notice hydroponic materials, unusual modifications to the home, reports of high power usage, or even mold, they may request to enter the home themselves or report their findings to police officers in Palm Beach County. <br />
<br />
Landlords are especially cautious when they suspect marijuana is being grown in their rental homes because Florida law allows charges to be brought against a homeowner or landlord who knowingly owns a house being used to grow marijuana, even if he or she does not live there. Typically, when landlords merely suspect that such an operation is underfoot, they will report their suspicions immediately to local law enforcement to protect themselves from prosecution.<br />
<br />
If you or a loved is facing charges in connection with the operation of a Grow House in Palm Beach County, contact a Palm Beach County Criminal Defense lawyer today.<br />
<br />
<br />
<br />
<div style="font-family: inherit;"><a href="http://www.lawyerfoley.com/">The Law Offices of Roger P. Foley, P.A.</a></div>We Don't Judge - We Defendhttp://www.blogger.com/profile/06338054715868295900noreply@blogger.com3tag:blogger.com,1999:blog-7683367762558923046.post-72348733591212925112011-12-01T07:27:00.000-08:002011-12-01T07:28:41.095-08:00Law Updates for November 24, 2011<b><u>L.M.</u></b>, 36 FLW 2467, 3rd DCA, CCW - Error to find juvenile guilty of CCW where weapon was BB gun which was not loaded with pellets and lacked a CO2 air cartridge and no testimony describing its operation of the nature and characteristics of injuries, if any, it was capable of inflicting, K.C.,49 So. 3d 841, 843(4th DCA 2010)<br />
<br />
<u><b>Ylomon</b></u>, 36 FLW 2488, 4th DCA, Constructive possession - Court erred in denying JOA where State only proved that the defendant was sitting on a couch with a codefendant in close proximity to controlled substances and paraphernalia and no evidence was presented from which the State could infer that the defendant had the ability to exercise control over the drugs.<br />
<br />
<b><u>Jackson</u></b>, 36 FLW 2499, 4th DCA, Conspiracy to traffic in oxycodone - No evidence to convict for conspiracy where there was no evidence of defendant's participation in any prior activity regarding drug transactions sufficient to establish an agreement to traffic in oxycodone. Even if present at pre-arranged drug transaction and may have been a lookout is, insufficient to prove any implied agreement, maybe proof of trafficking but no proof of underlying understanding or agreement.<br />
<br />
<u><b>Gore</b></u>, 36 FLW 2500, 4th DCA, Pharmacy and medical records - Trial Court properly denied motion to suppress pharmacy records which police obtained without a warrant or subpoena. There is some expectation of privacy in pharmacy records. Police may secure pharmacy records of Ch 893 controlled substances pursuant to a criminal investigation, but not pharmacy records of all prescriptions. Trial court erred in denying motion to suppress medical records and physician statement which police obtained without a subpoena or defendant's authorization.<br />
<br />
<br />
<div style="font-family: inherit;"><br />
</div><div style="font-family: inherit;"><a href="http://www.lawyerfoley.com/">The Law Offices of Roger P. Foley, P.A.</a></div>We Don't Judge - We Defendhttp://www.blogger.com/profile/06338054715868295900noreply@blogger.com0tag:blogger.com,1999:blog-7683367762558923046.post-24040435482820014152011-11-17T11:57:00.000-08:002011-11-17T11:57:32.375-08:00Law Updates for November 11, 2011<b><u>Hernandez</u></b>, 36 FLW 648, Fla, A Driver's License Suspension can be predicated upon a refusal to submit to a breath test, not only if the refusal is incident to a lawful arrest. Driver can not be precluded from challenging whether the refusal is from an unlawful arrest.<br />
<br />
<u><b>Page</b></u>, 36 FLW 2395, 4th DCA, Trial court erred in finding that the officer's use of defendants's name and date of birth for a warrants check turned consensual encounter into an encounter requiring reasonable suspicion.<br />
<br />
<u><b>Blue</b></u>, 36 FLW 2399, 4th DCA, Jessica Lunsford Act went into effect July 1, 2007. If someone's case happened in 2001 and VOP in 2009, they do not automatically have to wear the monitor, but can still apply monitor under 948.30(2)(c) if the court makes the requisite findings.<br />
<br />
<u><b>Harris</b></u>, 36 FLW 2400, 4th DCA, Possession of cocaine with intent to sell - Evidence was insufficient to exclude the reasonable hypothesis of innocence that crack cocaine found in defendant's possession was for personal use. The officer's conclusion that the fifty rocks found were for sale to others was not supported by any corroborating facts other than the amount, and the fact that the defendant did not possess any paraphernalia, and the rocks were all in one package. This is a good summary of the case law in this area.<br />
<br />
<br />
<br />
<br />
<br />
<span style="font-size: small;"><a href="http://www.lawyerfoley.com/">The Law Offices of Roger P. Foley, P.A.</a></span>We Don't Judge - We Defendhttp://www.blogger.com/profile/06338054715868295900noreply@blogger.com0tag:blogger.com,1999:blog-7683367762558923046.post-43560814675840901042011-11-07T07:22:00.000-08:002011-11-07T07:22:09.921-08:00Law Updates for October 28, 2011<b><u>Perez</u></b>, 36 FLW 2288, 2nd DCA, Limitation of actions - Trial Court properly dismissed grand theft charge where capias was issued within limitation period but not executed until eight years after the offense, when earlier than when the information was filed.<br />
<br />
<b><u>Baynham</u></b>, 36 FLW 2291, 4th DCA, Speedy trial - Error to find that speedy trial period commenced on date defendant was taken into custody for acts of using a false name and riding bike without a light. Trial Court misapplied "criminal episode" standard of speedy trial rule by placing greater emphasis on ongoing investigation of police, than actions of defendant. Delivery earlier same day of arrest but not charged for that offense for a year.<br />
<br />
<b><u>Dorsey</u></b>, 36 FLW 2299, 4th DCA, Jury instruction, Stand your Ground Law - Trial Court erred in instructing jury on the stand your ground law, rejecting defendant's proposed instruction, where there was evidence that defendant was engaged in an unlawful activity at the time of the shooting that adequately addressed the scope of the duty to retreat in these cases and was a correct statement of the law, not misleading or confusing.<br />
<br />
<u><b>Lanzo</b></u>, 36 FLW 2335, 5th DCA, Burglary dwelling - Error to give stealth instruction after victim came home to see defendant in open garage during the day holding the victim's bicycle. Error to permit stealth instruction where the defendant was seen in an open garage, in daylight hours, in full view of any passerby. There was no evidence that defendant approached the home in a furtive manner. Defendant left the garage by simply walking down the street, and defendant readily spoke with the victim and the officer.<br />
<br />
<u><b>Price</b></u>, 36 FLW 2343. 2nd DCA, "Under color of office doctrine", Officer did not violate color of office doctrine where officer could have made a citizen stop, where defendant's erratic driving was observable by any private citizen on the interstate, and the defendant's conduct amounted to a breach of the peace. Officer did not use the power of his office to observe unlawful activity or gain access to evidence not available to a lawful citizen.<br />
<br />
<br />
<span style="font-size: medium;"><a href="http://www.lawyerfoley.com/">The Law Offices of Roger P. Foley, P.A.</a></span>We Don't Judge - We Defendhttp://www.blogger.com/profile/06338054715868295900noreply@blogger.com1tag:blogger.com,1999:blog-7683367762558923046.post-8432826328906191872011-10-27T09:32:00.000-07:002011-10-27T09:34:32.228-07:00Law Updates for October 21, 2011<u>McElroy</u>, 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.<br />
<br />
<u>Molina</u>, 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.<br />
<br />
<u>Hamilton</u>, 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.<br />
<br />
<u>A.H.</u>, 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.<br />
<br />
<u>Deluise</u>, 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.<br />
<br />
<u>Davis</u>, 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.<br />
<span style="font-size: large;"><br />
</span><br />
<span style="font-size: large;"><a href="http://www.lawyerfoley.com/">The Law Offices of Roger P. Foley, P.A.</a></span>We Don't Judge - We Defendhttp://www.blogger.com/profile/06338054715868295900noreply@blogger.com0tag:blogger.com,1999:blog-7683367762558923046.post-36578611452576058382011-10-20T10:46:00.000-07:002011-10-20T10:46:19.750-07:00Law Updates for October 14, 2011<u>A.S.F.</u>, 36 FLW 2182, 4th DCA, Trial court improperly denied motion for dismissal where the State presented no evidence that the juvenile had any participation in the attack. He was present and might have, at some point been aware that the attack was going to occur, but such knowledge would not have been enough to establish the required criminal intent.<br />
<br />
<u>Williams v. Lamberti</u>, 36 FLW 2223, 4th DCA, Recusal granted by Appellate Court after third time granting Habeas Corpus based on an excessive bond. At the emergency motion to grant bond the Court based its findings on the unsworn statements of a prior lawyer who had previously withdrawn, and would not listen to testimony of the Defendant, i.e., that he had complied with the previously imposed flight conditions, and had not received notice of a hearing he missed to determine that the Defendant was a flight risk for a third degree felony.<br />
<br />
<br />
<br />
<a href="http://www.lawyerfoley.com/">The Law Offices of Roger P. Foley, P.A.</a>We Don't Judge - We Defendhttp://www.blogger.com/profile/06338054715868295900noreply@blogger.com0tag:blogger.com,1999:blog-7683367762558923046.post-85450738396102720962011-10-18T08:54:00.000-07:002011-10-18T08:54:28.208-07:00Law Updates for October 7, 2011<u>Davila</u>, 36 FLW 579, Sup. Ct , A parent can be convicted of kidnapping of one's own child even if no court order involved.<br />
<br />
<u>Parker</u>, 36 FLW 1245, 2nd DCA, Possession of child pornography - Defendant's conviction and sentence is reversed for possessing photographs depicting child's heads on bodies of adult females engaged in sex acts (not computer generated). 827.071 requires that the depicted sexual conduct be that of a child and photographs which leave no doubt that child engaged in a sexual act, actual or simulated and a reasonable viewer must believe the actors actually engaged in the conduct on camera, it must involve actual children.<br />
<br />
<u>Lester, Jr.</u>, 36 FLW 2157, 4th DCA, Hearsay, dying declaration. No error in admitting out-of-court identification made by deceased victim by blinking once for no and twice for yes in identifying the defendant.<br />
<br />
<u>Williams</u>, 36 FLW 2163, 5th DCA, Husband-wife privilege. Trial court erred in admitting wife's statement that defendant needed money in order to pay his attorney (robbery case). Covered by privilege - not waive objection by not objecting in her deposition - statement regarding defendant's street name was not protected because it was information generally known in the community. Harmful error.<br />
<br />
<u>J.H.</u>, 36 FLW 2165, 5th DCA, Where trial court had orally announced juvenile's sentence of probation at initial disposition hearing, juvenile had begun serving his sentence when juvenile left the courtroom. Summoning juvenile back in courtroom and sentence to 3 years in residential treatment violates double jeopardy. Fact that PDR was missing a comprehensive evaluation and report had DJJ'S probation plan, in error, was not fault of the juvenile causing him to be allowed to be sentenced again.<br />
<br />
<a href="http://www.lawyerfoley.com/">The Law Offices of Roger P. Foley, P.A.</a>We Don't Judge - We Defendhttp://www.blogger.com/profile/06338054715868295900noreply@blogger.com0tag:blogger.com,1999:blog-7683367762558923046.post-27223544886297163612011-10-05T05:22:00.000-07:002011-10-05T05:22:00.483-07:00Law Updates for September 30, 2011<u>Theophile</u>, 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.<br />
<br />
<u>Jones</u>, 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).<br />
<br />
<b>Bush, Jr</b>. 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.<br />
<br />
<br />
<a href="http://www.lawyerfoley.com/">The Law Offices of Roger P. Foley, P.A.</a>We Don't Judge - We Defendhttp://www.blogger.com/profile/06338054715868295900noreply@blogger.com0tag:blogger.com,1999:blog-7683367762558923046.post-50084443164480406702011-09-24T04:00:00.000-07:002011-09-24T04:00:48.565-07:00Law Updates for September 16, 2011.<u>Witchard</u>, 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.<br />
<br />
<u>Tracey</u>, 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).<br />
<br />
<u>Canady</u>, 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.<br />
<br />
<u>Gil</u>, 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.<br />
<br />
<u>Barcomb</u>, 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.<br />
<br />
<u>Moncus</u>, 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.<br />
<br />
<u>Enix</u>, 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.<br />
<br />
<u>Mullis</u>, 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.<br />
<br />
<u>Freeman</u>, 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.<br />
<br />
<br />
<br />
<a href="http://www.rpfoley.com/">The Law Offices of Roger P. Foley,P.A.</a>We Don't Judge - We Defendhttp://www.blogger.com/profile/06338054715868295900noreply@blogger.com0tag:blogger.com,1999:blog-7683367762558923046.post-21627264593576023932011-09-14T12:59:00.000-07:002011-09-14T12:59:31.086-07:00Law Updates for September 9, 2011<u>Gartner</u>, 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.<br />
<br />
<a href="http://www.rpfoley.com/">The Law Offices of Roger P. Foley,P.A.</a>We Don't Judge - We Defendhttp://www.blogger.com/profile/06338054715868295900noreply@blogger.com0tag:blogger.com,1999:blog-7683367762558923046.post-16499741610756309562011-09-10T06:58:00.000-07:002011-09-10T06:58:22.159-07:00Law Updates for September 2, 2011<u>Coleman</u>, 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.<br />
<br />
<u>Hyden</u>, 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.<br />
<br />
<u>Marshall</u>, 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.<br />
<br />
<br />
<a href="http://www.rpfoley.com/">The Law Offices of Roger P. Foley,P.A.</a>We Don't Judge - We Defendhttp://www.blogger.com/profile/06338054715868295900noreply@blogger.com0tag:blogger.com,1999:blog-7683367762558923046.post-71335569299986642962011-08-31T18:40:00.000-07:002011-08-31T18:40:51.882-07:00Law Updates for August 26, 2011<u>Dixon</u>, 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.<br />
<br />
<u>T.S.W.</u>, 36 FLW 1821, 4th DCA, CCW, court should have dismissed case. Common pocketknife (3.5 inches) and lacks weapon-like characteristics.<br />
<br />
<u>Breen</u>, 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.<br />
<br />
<br />
<a href="http://www.rpfoley.com/">The Law Offices of Roger P. Foley,P.A.</a>We Don't Judge - We Defendhttp://www.blogger.com/profile/06338054715868295900noreply@blogger.com0tag:blogger.com,1999:blog-7683367762558923046.post-20478745743952747422011-08-26T11:17:00.000-07:002011-08-26T11:17:59.373-07:00Law Updates for August 19, 2011<u>Herron</u>, 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.<br />
<br />
<u>Fleming</u>, 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.<br />
<br />
<u>A.M.O</u>., 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.<br />
<br />
<a href="http://www.rpfoley.com/">The Law Offices of Roger P. Foley,P.A.</a>We Don't Judge - We Defendhttp://www.blogger.com/profile/06338054715868295900noreply@blogger.com0tag:blogger.com,1999:blog-7683367762558923046.post-15090354218199165422011-08-17T14:07:00.000-07:002011-08-17T14:07:08.743-07:00Law Updates for August 12, 2011<u>Knipp, Keiser</u>, 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.<br />
<br />
<u>D.F.</u> 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.<br />
<br />
<u>Wiggs</u>, 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.<br />
<br />
<a href="http://www.rpfoley.com/">The Law Offices of Roger P. Foley,P.A.</a>We Don't Judge - We Defendhttp://www.blogger.com/profile/06338054715868295900noreply@blogger.com0tag:blogger.com,1999:blog-7683367762558923046.post-5134918825961236302011-08-10T13:43:00.000-07:002011-08-10T13:43:26.351-07:00Law Updates for August 5, 2011<u>Siegel,</u> 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.<br />
<br />
<u>Aders</u>, 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.<br />
<br />
<u>Wess</u>, 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.<br />
<br />
<br />
<a href="http://www.rpfoley.com/">The Law Offices of Roger P. Foley,P.A.</a>We Don't Judge - We Defendhttp://www.blogger.com/profile/06338054715868295900noreply@blogger.com0tag:blogger.com,1999:blog-7683367762558923046.post-90977458369511820122011-08-05T04:47:00.000-07:002011-08-05T04:47:32.274-07:00Law Updates for July 29, 2011<u>Yusrael,</u> 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.<br />
<br />
<u>Bravo II</u>, 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.<br />
<br />
<a href="http://www.rpfoley.com/">The Law Offices of Roger P. Foley,P.A.</a>We Don't Judge - We Defendhttp://www.blogger.com/profile/06338054715868295900noreply@blogger.com0tag:blogger.com,1999:blog-7683367762558923046.post-65463464825970965082011-07-29T04:23:00.000-07:002011-07-29T04:34:40.545-07:00Law Updates for July 22, 2011<u>Rodriguez</u>, 36 FLW 1517, 4th DCA, Impeachment, prior inconsistent statement - Trial court erred in refusing to allow testimony that the victim told detective he did not know who shot him, after the victim testified on cross-exam that defendant shot him, and he did not remember telling the detective he did not know who shot him. When a witness at trial does not remember earlier inconsistent statement, the witness does not "distinctly admit making" the statement under 90.614(2) and therefore extrinsic evidence of it is admissible - harmless error here where victim was heavily sedated at the time of the previous statement and defendant told officer he killed the victim. The gun used in shooting linked to defendant and all eyewitnesses gave descriptions of the shooter that matched the defendant.<br />
<br />
<u>B.C.</u>, 36 FLW 1532, 1st DCA, Trespass no school grounds - Deputy who said he was a school board police officer and did not have authority to exclude children inasmuch as deputy was not under the command of the school principal. There being no connection between the deputy and principal's office, the essential element of 810.097(2), the conviction constituted fundamental error - conflict certified. There was a similar case last week.<br />
<br />
<br />
<br />
<a href="http://www.rpfoley.com/">The Law Offices of Roger P. Foley,P.A.</a>We Don't Judge - We Defendhttp://www.blogger.com/profile/06338054715868295900noreply@blogger.com0tag:blogger.com,1999:blog-7683367762558923046.post-32712728226736411792011-07-20T03:15:00.000-07:002011-07-20T03:15:32.374-07:00Law Updates for July 15, 2011<u>D.P.</u> 36 FLW 1445, 3rd DCA, A uniformed officer was called to a parking lot where juveniles were loitering following a party, was told by a young woman who appeared nervous and fearful that a juvenile had a gun pointed it at her. Officer had reasonable suspicion justifying a pat down search. Officer approached juvenile to verify the information and the juvenile began backing away from the officer. Women, never identified by the police before she left the party before the pat down was complete, was a citizen informer rather than a anonymous tipster. Information provided by her was entitled to a greater indicia of reliability than an anonymous tipster-trial court properly denied motion to suppress.<br />
<br />
<u>B.M.</u>, 36 FLW 1460, 3rd DCA, Battery LEO-Impeachment - Trial court erred in precluding juvenile from adducing evidence that the officer, whom he allegedly resisted, used excessive force and evidence about an internal affairs complaint juvenile brought against the officer.<br />
<br />
<br />
<a href="http://www.rpfoley.com/">The Law Offices of Roger P. Foley,P.A.</a>We Don't Judge - We Defendhttp://www.blogger.com/profile/06338054715868295900noreply@blogger.com1tag:blogger.com,1999:blog-7683367762558923046.post-65648349540005242832011-07-15T06:38:00.000-07:002011-07-15T06:38:00.978-07:00Law Updates for July 8, 2011<u>Moreno-Gonzalez</u>, 36 FLW 360, Fla, Failure of officer to sign an affidavit in support of search warrant did not render the warrant invalid. All the surrounding circumstances clearly and without dispute demonstrate that the entire written affidavit in support of search warrant was initialed and sworn to under oath before the judge who issued the warrant. There was no evidence of unlawful or malicious conduct or intent on behalf of the police.<br />
<br />
<u>D.J.</u>, 36 FLW 363, Fla., Trespass on school property - Evidence was not sufficient to prove that a juvenile was warned by a person of authority where the security guard who warned the juvenile to leave school grounds stated her only job was to monitor students behavior. No evidence this person was vested with this power by the principal to restrict access to school property.<br />
<br />
<u>Vardman</u>, 36 FLW 1405, 4th DCA, Judicial vindictiveness - After plea offer rejected by the defendant, defendant was sentenced to 30 years. Case discusses the totality of circumstances and the four factors laid out in Wilson, 845 So. 2d 142(Fla. 2003).<br />
<br />
<u>Wilbur</u>, 36 FLW 1430, 5th DCA , Similar fact - Trial court erred by permitting state to introduce evidence concerning two earlier sales to the same confidential informant, evidence which was not relevant to case charged and was admitted only to show def's propensity to sell cocaine. Error was not harmless.<br />
<br />
<br />
<a href="http://www.rpfoley.com/">The Law Offices of Roger P. Foley,P.A.</a>We Don't Judge - We Defendhttp://www.blogger.com/profile/06338054715868295900noreply@blogger.com0tag:blogger.com,1999:blog-7683367762558923046.post-5437540582491131102011-07-06T13:50:00.000-07:002011-07-06T13:50:51.346-07:00Law Updates for July 1, 2011<u>Majors</u>, 36 FLW 1355, 1st DCA, No reasonable suspicion or community caretaking, i.e. public safety and welfare, function where the officers stopped a vehicle backing out of a space after receiving a call from a bank reporting strange activity by a customer who was attempting to withdraw a large amount of cash, wanted to make a check payable to a driver of a vehicle that was parked in front of the bank, and kept going back and forth between the vehicle and the bank, acting strangely and having discussions with the people in the vehicle. Officers said they did not suspect a crime was being committed when they stopped the vehicle.<br />
<br />
<u>Casias</u>. 36 FLW 1366, 2nd DCA, DNA statistician testimony - The expert never identified or explained the methodology she used to complete her statistical analysis. She did not testify that she knew how the statistical program worked, or that she was required to know how it works, or she was able to do the statistical calculations by hand.<br />
<br />
<u>M.D.</u>, 36 FLW 1372, 1st DCA, School searches - An anonymous tipster called school and told them that student had carried a gun three months earlier. School resource officer asked school security guard to escort student to security office. A search of student pursuant to general school policy was not unlawful. Allegations of gun possession on school campus are different from traditional 4th cases.<br />
<br />
<br />
<a href="http://www.rpfoley.com/">The Law Offices of Roger P. Foley,P.A.</a>We Don't Judge - We Defendhttp://www.blogger.com/profile/06338054715868295900noreply@blogger.com0tag:blogger.com,1999:blog-7683367762558923046.post-51516039351869377462011-06-29T04:44:00.000-07:002011-06-29T04:44:55.531-07:00Law Updates for June 24, 2011<u>Gizaw</u>, 36 FLW 1266, 2nd DCA, Constructive Possession - Error to deny JOA where State did not establish defendant's constructive possession of cannabis discovered in suitcase in trunk of defendant's car during a permissive search. No independent proof that defendant had knowledge of presence of can or had dominion and control over suitcase containing cannabis where suitcase contained no fingerprints, only other items in suitcase were jeans of a size fitting passenger and defendant's unrefuted testimony establishing defendant was not in the exclusive possession of vehicle as the passenger had keys to vehicle and access to trunk. State failed to show the $939 cash in defendant's possession was in any way connected with dealing of cannabis as defendant's unrefuted testimony that money was for school.<br />
<br />
<u>Fernandez</u>. 36 FLW 1274, 3rd DCA, Trial court improperly denied motion to suppress evidence obtained when police, surveilling defendant's home which was surrounded by tall fences and remote-controlled gates, capitalized on defendant's opening the gate for the purpose of his leaving the property by quickly entering the property and blocking the defendant's exit, after which the defendant refused to sign a consent form for a search but nonetheless opened the door for the police, who entered and found 144 marijuana plants. Officer entered the opened gate committed a trespass. Opening of the gate was not an open invitation to the public, or by extension to the police. Consent later granted was tainted and no brake in the chain of earlier events.<br />
<br />
<u>Dortch</u>. 36 FLW 1302, 1st DCA, Fleeing and eluding - Reversible and harmful error to allow into evidence that the car the defendant was in fleeing was stolen three months earlier. Evidence was not necessary to describe events that took place after car was stopped and defendant fled, justification for the pursuit was not a material fact in dispute.<br />
<br />
<br />
<a href="http://www.rpfoley.com/">The Law Offices of Roger P. Foley,P.A.</a>We Don't Judge - We Defendhttp://www.blogger.com/profile/06338054715868295900noreply@blogger.com0tag:blogger.com,1999:blog-7683367762558923046.post-30794966206086925432011-06-23T10:52:00.000-07:002011-06-23T10:52:08.045-07:00Law Updates for June 17, 2011<u>A.L.T.</u>, 36 FLW 1203, 4th DCA, Exceed scope of consent - Asked juvenile if he could search juvenile for weapons or drugs and then went through his wallet without further consent, finding an ID card of an elderly women whose home the juvenile later confessed to burglarizing. Reasonable person would understand that the consent to search would constitute an agreement to only search for weapons or drugs.<br />
<br />
<u>Evans</u>, 36 FLW 1205, 4th DCA, Prosecutorial Misconduct - Fundamental Error - State argument implied tampering by a witness without any evidence and of improper contact by that witness. "they had three weeks to think of something and that they concocted their story."<br />
<br />
<u>Wheeler</u>, 36 FLW 1239, 5th DCA, Search and Seizure-Vehicle-Curtilage - Where search warrant of a residence authorized search of any vehicle located within the resident's curtilage, search of defendant's car not authorized where the car was partially overlapping the portion of the driveway outside the chainlink fence surrounding the residence on but was not blocking ingress and egress to the property. The fact that the homeowner chose to enclose the yard with a fence and defendant's vehicle was parked outside the fence is the most compelling factor.<br />
<br />
<u>Diaz</u>, 36 FLW 1242, 5th DCA, hearsay - Error for trial court to admit testimony regarding an anonymous tip to police identifying defendant as a suspect where person who tipped off the police never testified at trial and testimony regarding the anonymous tip was excluded prior to trial with a motion in limine. Non-testifying witness furnished the police with testimony of the defendant's guilt. It is hearsay and not harmless beyond a reasonable doubt. Evidence of the defendant's guilt was not overwhelming where victim could not identify defendant from surveillance video and did not mention prominent mole on defendant's face.<br />
<br />
<br />
<br />
<a href="http://www.rpfoley.com/">The Law Offices of Roger P. Foley,P.A.</a>We Don't Judge - We Defendhttp://www.blogger.com/profile/06338054715868295900noreply@blogger.com0