Florida Law Updates and Discussions

Law Updates for November 24, 2011

2011-12-01T07:27:00.000-08:00

L.M., 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)

Ylomon, 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.

Jackson, 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.

Gore, 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.

The Law Offices of Roger P. Foley, P.A.

Law Updates for November 11, 2011

2011-11-17T11:57:00.000-08:00

Hernandez, 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.

Page, 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.

Blue, 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.

Harris, 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.

The Law Offices of Roger P. Foley, P.A.

Law Updates for October 28, 2011

2011-11-07T07:22:00.000-08:00

Perez, 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.

Baynham, 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.

Dorsey, 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.

Lanzo, 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.

Price, 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.

The Law Offices of Roger P. Foley, P.A.

Law Updates for October 21, 2011

2011-10-27T09:32:00.000-07:00

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.

Law Updates for October 14, 2011

2011-10-20T10:46:00.000-07:00

A.S.F., 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.

Williams v. Lamberti, 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.

The Law Offices of Roger P. Foley, P.A.

Law Updates for October 7, 2011

2011-10-18T08:54:00.000-07:00

Davila, 36 FLW 579, Sup. Ct , A parent can be convicted of kidnapping of one's own child even if no court order involved.

Parker, 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.

Lester, Jr., 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.

Williams, 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.

J.H., 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.

The Law Offices of Roger P. Foley, P.A.

Law Updates for September 30, 2011

2011-10-05T05:22:00.000-07:00

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.

Law Updates for September 16, 2011.

2011-09-24T04:00:00.000-07:00

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

2011-09-14T12:59:00.000-07:00

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

2011-09-10T06:58:00.000-07:00

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.

Law Updates for August 26, 2011

2011-08-31T18:40:00.000-07:00

Dixon, 36 FLW 1815, 4th DCA, Def's repeated statements he did not want to talk about the burglaries of his parent's house was unambiguous and unequivocal. Police did not honor the def's request to remain silent. Trial court erred in deciding that the def could not invoke the right to remain silent regarding certain matters but not others.

T.S.W., 36 FLW 1821, 4th DCA, CCW, court should have dismissed case. Common pocketknife (3.5 inches) and lacks weapon-like characteristics.

Breen, 36 FLW 1861, 1st DCA, Error to deny JOA where evidence established that the def entered the apt he shared with girlfriend, he was paying at least the expenses and bills for the apt, his belongings were still in the apt and no evidence that the girlfriend revoked her consent to the def living in the apt.

The Law Offices of Roger P. Foley,P.A.

Law Updates for August 19, 2011

2011-08-26T11:17:00.000-07:00

Herron, 36 FLW 1731, 3rd DCA, Pat Down after traffic stop - Defendant who had been ordered to place his hands on the roof of the vehicle: illegal where the officer did not have reasonable suspicion that the defendant was armed with a dangerous weapon. Evidence of defendant's nervousness and officer's hunch that " there was something going on" is insufficient to have a reasonable suspicion that defendant was armed with a dangerous weapon.

Fleming, 36 FLW 1764, 4th En Banc, Sufficient evidence exists to get past a JOA if a chemist, or expert, who is called by the State testifies that he or she tested a substance and the test yielded positive results for cocaine. Testimony of forensic chemist stating she found powder cocaine in a pipe discarded by the defendant and amount was too small to be weighed, but was present, is enough to support charge and deny JOA.

A.M.O., 36 FLW 1766, 4th DCA, L & P, Judgment of guilt for loitering and prowling improper where officer did not afford the juvenile the opportunity to identify himself, and where the explanation given by juvenile for his presence should have dispelled alarm and immediate concern if believed by the arresting officer and was, in fact, believed by the trial judge, according to the record.

The Law Offices of Roger P. Foley,P.A.

Law Updates for August 12, 2011

2011-08-17T14:07:00.000-07:00

Knipp, Keiser, 36 FLW 1653, 4th DCA, Withholding information from medical practitioner - Statute does not qualify withholding of information by requiring an affirmative request for such information. No error in granting motion to dismiss drug trafficking charges where it is undisputed that the def's possessed prescriptions issued by license practitioner in the normal course of business. Good case.

D.F. 36 FLW 1679, 3rd DCA, Investigatory sweep at apartment complex - Juvenile was sitting on stairway in apt complex at the time multiple armed officers wearing bulletproof vests surrounded the complex. Guns were drawn, officers approached area where the juvenile was sitting. He was "seized" when he discarded bag of marijuana after seeing the officers. Reasonable person in juvenile's position would believe police activity directed at him, not free to leave and submitted to police authority. Trial court properly granted motion to suppress contraband found in search of juvenile after his arrest.

Wiggs, 36 FLW 1688, 2nd DCA, Dog sniff, No probable cause - Dog's field accuracy rate was insufficient to establish a fair probability that drugs would be found following an alert where the dog's field performance records indicated that the dog had conducted 17 vehicle sniffs and alerted to presence of drugs 14 times, but drugs were only found after 4 of those tests. Good detailed opinion about evaluation of dog's alerts and what they mean.

The Law Offices of Roger P. Foley,P.A.

Law Updates for August 5, 2011

2011-08-10T13:43:00.000-07:00

Siegel, 36 FLW 1633, 4th DCA, Peremptory challenge - Gender discrimination. Error to disallow defense challenge to two female jurors when defense counsel provided genuine, gender neutral reason for each challenge. Court never did a genuineness analysis, but simply said the reason for the strikes were pretextual - Sex case: one juror who had a relative convicted of a sex crime and other, a teacher in frequent contact with children.

Aders, 36 FLW 1637, 4th DCA, Trial court properly ruled that the deputy was justified in making a traffic stop to determine if the license plate was attached to the correct vehicle where the defendant's car color failed to match the color in the computer registration. There is no legal duty to notify the state of a change in color, but the color discrepancy creates sufficient reasonable suspicion to justify a traffic stop for further investigation.

Wess, 36 FLW 1640, 1st DCA, Robbery by sudden snatching - Purse taken while victim was sitting on a bench at a bus stop with the purse touching her hip. Insufficient to sustain conviction: purse not taken from the victim's person. Remand to reduce to lesser offense of theft.

The Law Offices of Roger P. Foley,P.A.

Law Updates for July 29, 2011

2011-08-05T04:47:00.000-07:00

Yusrael, 36 FLW 1584, 1st DCA, Judge committed fundamental error and violated due process where, during sentencing, the judge questioned defendant about two other charges for sex battery. One was pending and the other was dismissed. The Court comments that the other victims did not want to testify and questioned defendant whether he raped these children, strongly indicated they were factors in the court's sentencing. Remanded for sentencing by a different judge.

Bravo II, 36 flw 1591, 1st DCA, Trial court abused its discretion in denying defendant's motion in limine to exclude testimony regarding defendant's refusal to consent to officer's request to conduct a warrantless search of his home for a gun. Officer's testimony was irrelevant where defendant never contended that he did not own a gun or point a gun at the victim, instead argued he acted out of fear and self-defense. Not harmless. Prosecutor comments in closing using this testimony to urge the jurors to question the credibility of defense theory of self-defense could not say beyond a reasonable doubt did not influence jury.

The Law Offices of Roger P. Foley,P.A.

Law Updates for July 22, 2011

2011-07-29T04:23:00.000-07:00

Rodriguez, 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.

B.C., 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.

The Law Offices of Roger P. Foley,P.A.

Law Updates for July 15, 2011

2011-07-20T03:15:00.000-07:00

D.P. 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.

B.M., 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.

The Law Offices of Roger P. Foley,P.A.

Law Updates for July 8, 2011

2011-07-15T06:38:00.000-07:00

Moreno-Gonzalez, 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.

D.J., 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.

Vardman, 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).

Wilbur, 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.

The Law Offices of Roger P. Foley,P.A.

Law Updates for July 1, 2011

2011-07-06T13:50:00.000-07:00

Majors, 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.

Casias. 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.

M.D., 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.

The Law Offices of Roger P. Foley,P.A.

Law Updates for June 24, 2011

2011-06-29T04:44:00.000-07:00

Gizaw, 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.

Fernandez. 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.

Dortch. 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.

The Law Offices of Roger P. Foley,P.A.

Law Updates for June 17, 2011

2011-06-23T10:52:00.000-07:00

A.L.T., 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.

Evans, 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."

Wheeler, 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.

Diaz, 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.

The Law Offices of Roger P. Foley,P.A.

Law Updates for June 11, 2011

2011-06-20T13:05:00.000-07:00

DMV v. Hernandez, 36 FLW 243, Sup Ct., A driver's license suspension can be predicated upon a refusal to take a breath test only if the refusal is incident to a lawful arrest.

Corona, 36 FLW 247, Sup Ct., Discovery deposition does not satisfy Crawford. Defendant does not have the opportunity to cross-examine a declarant of a testimonial statement. Defendant's constitutional right of confrontation was violated when officer allowed to testify concerning statements made immediately after incident by the victim, where the def did not have adequate opportunity to cross examine the victim, victims statements to the police were testimonial and no ongoing emergency and taken to determine if criminal activity had taken place.

Sun, 36 FLW 4th DCA, trial court properly suppressed def patient contracts and statements from his doctors which police officer obtained without a subpoena or a warrant. Patient contacts fall within the scope of privacy in medical records and doctors statements fall within the scope of doctor-patient privilege. Trial court properly denied motion to suppress def's pharmacy records which were obtained without a subpoena or warrant.

The Law Offices of Roger P. Foley,P.A.

Law Updates for May 27, 2011

2011-06-02T18:29:00.000-07:00

Delgado, 36 FLW 220, Supreme Court - Def who stole vehicle while a two-year old child was asleep in the backseat was erroneously convicted of kidnapping with intent to fabricate a felony where def was not aware of the presence of the child until after he stole the vehicle. Aware after of the act is not relevant to the kidnapping. State must prove def became aware of the presence of the victim before or during the commission of the underlying felony.

Wiley, 36 FLW 1056, 4th DCA, Second Degree Murder - Error to deny JOA to 2nd D. Murder where evidence does not establish a depraved mind and with indifference to human life. Two eyewitnesses testified that the def hit the victim over the head with a gun and gun discharged and def claimed there was a scuffle and gun discharged and def claimed there was a scuffle and gun discharged in the def's attempt to secure the gun. Def conduct was less a result of malice and more extremely reckless behavior, insufficient to infer malice, evidence sufficient to sustain conviction for third-degree murder, as agg battery resulting in death can be third degree murder.

Croce, 36 FLW 1958, 4th DCA - Error to not dismiss juror fo cause. Victim in a rape case, who stated in great detail her concerns about being on a jury in this case based on her past experience, concerns raise a reasonable doubt about ability to be fair and impartial. New trial where def used all challenges and forced to accept a juror lawyer wanted to strike.

Thomas, 36 FLW 1059, 4th DCA, Discovery violation - Detective listed as a witness but not as an expert, when the state called to testify as an expert as to the packaging of the drugs, all while the witness was on the witness stand, def counsel not waive appeal based on accepting the court's remedy of having the def list as rebuttal state witnesses, Richardson hearing was inadequate here

Guardado, 36 FLW 1087, 4th DCA, Blood test results - Error to deny motion to suppress medical records containing blood test results obtained by the state through subpoena following an automobile accident in which the def was the driver and two passengers were killed where state failed to establish a nexus between the medical blood and the automobile crash. State could not rely on results from the blood samples taken at request of the officer as basis for the subpoena for medical records where the state stipulated that the ofc did not have probable cause for the blood draw. State previous attempt not done in bad faith, state is not precluded from again seeking the medical records through subpoena if it provides further evidence demonstrating relevance of medical blood evidence.

Dillon-Watson, 36 FLW 1089, 4th DCA, vehicle and motion to suppress - Court erred in denying motion. Search could not be based, as state admitted, as a investigatory stop based on an anonymous tip. Consensual encounter totality of circumstances reveal a reasonable person would not felt free to leave the encounter and def 's consent to search the car was not voluntary acquiescence as a show of authority"Let me take a good look at your vehicles and if everything checks out okay, you guys will be good to go."

DeWolfe, 36 FLW 1106, 1st DCA, Hearsay exception, declaration against penal interest - Error to exclude testimony of two defense witnesses that heard third party confess to the crime for which the def was on trial. Third party unavailable, died by the time of trial, confession against penal interest, and corroborating circumstances were sufficient to demonstrate trustworthiness of declaration, credibility of in court witness is question for the jury and not judge and has nothing to do with admissibility. Error not harmless.

The Law Offices of Roger P. Foley,P.A.

Law Updates for May 20, 2011

2011-05-23T13:49:00.000-07:00

Zeigler, 36 FLW 1029, 2nd DCA, Sentencing Vindictiveness. Sentence greater than referenced by defense counsel when originally announcing that def wanted to enter open plea. Presumption of vindictiveness in this case arose, although record did not show that judge initiated plea negotiations, he advocated that def enter open plea by warning def of potential consequences of proceeding to trial and made remarks which evidenced departure from role of impartial arbiter by endorsing strength of State's case and telling def that he would "rue the day" he decided to exercise his constitutional right to a trial.

Hart, 36 FLW 1033, 1st DCA, Joinder of offenses. Trial court abused discretion in granting State's motion for a single trial offenses of sex battery, kidnapping, agg battery, and armed robbery against one victim with a charge of carjacking against the other victim. Although the two criminal episodes were separated only by a few hours and a couple of blocks, these factors were not sufficient to prove a proper and significant link between the crimes. The mere fact of temporal and geographic proximity is not sufficient itself to justify joinder except to the extent it proves a proper and significant link between the crimes.

Boyington, 36 FLW 1036, 1st DCA, Community control - Error to revoke based solely on allegation that def changed address without permission where there was no showing that it was willful and substantial where def incarcerated in another county during the relevant period.

The Law Offices of Roger P. Foley,P.A.

Law Updates for May 13, 2011

2011-05-20T08:29:00.000-07:00

Brown, 36 FLW 935, 4th DCA, Self-defense - Trial court erred in giving the standard instruction for self-defense, instructing jury that self-defense was only authorized only if injury to the victim occurred where injury was not an element of the crime, and State argued such. Error was fundamental, negated def's sole defense to the crime-Battery LEO case.

Moss, 36 FLW 940, 4th DCA, Statements of the defendant - Error to deny motion to suppress custodial statement def gave to police after he said "I want to talk to a lawyer." Post-invocation statements cannot be used. Waiver: def did not subsequently waive the privilege where the def did not reinterate the exchanges with the police, instead interrogating officer continued to question the def without pause and subtly undermined the request for a lawyer in various ways. Not harmless

Walker, 36 FLW 984, 1st DCA, Where the def sought to suppress evidence flowing from stop of her vehicle, because stop was conducted by an off-duty policemen acting outside his jurisdiction. Trial court erred in denying motion where the mutual assistance agreement was not presented to the court until after the motion to suppress. Her due process was denied, as the def could not challenge the authenticity, continued validity, or statutory compliance of the evidence.

The Law Offices of Roger P. Foley,P.A.

Law Updates for May 6, 2011

2011-05-11T04:16:00.000-07:00

Sabine, Jr., 36 FLW 874, 2nd DCA, Lewd and Lascivious, the uncharged crimes involving both prior and subsequent incidents between defendant and victim were not inexplicably intertwined with charged offenses. Uncharged crimes were improperly admitted as similar fact evidence where State failed to provide notice to comply with statutory requirement. Error not harmless where evidence was extremely prejudicial, minimally relevant, and became a feature of the trial.

Mills, 36 FLW 877, 2nd DCA, Officer on patrol in high crime area that had been hit with "smash and grab burglaries" lacked probable cause to arrest defendant for loitering and prowling based on their having observe him walking out from behind a closed business and then turning around and walking behind closed business when he saw officers. When officers spoke to him he came out from behind the wall, identified himself, and provided some explanation for his behavior. Error to refuse to suppress pills post-arrest.

Butera, 36 FLW 879, 2nd DCA, Constructive possession - Greater weight of preponderance of evidence presented at revocation hearing did not establish defendant's knowledge of his dominion and control over cocaine or marijuana found in the vehicle in which the defendant was the backseat passenger and was occupied by two other people.

Black, 36 FLW 682, 4th DCA, Statement of defendant - Where defendant clearly and unequivocally invoked his right to counsel, police were immediately required to stop questioning him. Error not harmless. Defendant invoked right to counsel when he answered "no" to inquiry, "knowing and understanding your rights as I have explained them to you, are you willing to answers my questions without an attorney." Detectives' follow-up, whether he wanted to speak to the police anyway, effort though intended or not to wear down the defendant's resistance and make him change his mind. Statement suppressed.

The Law Offices of Roger P. Foley,P.A.

Former Prosecutors Advertising as Defense Attorneys

2011-05-07T14:10:00.000-07:00

As a Criminal Defense Attorney, I am in the Court House daily and have the opportunity to watch other attorneys practice their craft. Most should quit because what I see from the majority of the defense bar is a bunch of hacks.

What is meant by the word hack?
A professional person, in this case a lawyer, who exploits others for money and has absolutely no pride in what he does. He forfeits his abilities and surrenders to the system because nobody checks, nobody complains, nobody cares. Yes, that is the overall system.

Everyone loves to hear a good story about the innocent guy who is released from jail but rarely do the criminal lawyers I see put in the effort to allow the innocent to go free. Some say that there are no innocent people in the criminal system but I am here to tell you that there are some innocent people.   I am also here to tell you that the experience and dedication to learn my craft and the continuation of my education is brought about by my defending the guilty. That is the truth.

Many of my clients are guilty and yes, I help them to walk away without any penalty. But this writing is not about me nor am I attempting to make a comparison between the the hack attorneys and the few elite lawyers who actually care about our clients. I am simply here to give my opinion.

Tonight's opinion was brought about after watching television. I came across yet another boring and ridiculous law firm commercial that states, "We are in trial all the time and I have been to trial hundreds of times...." The commercial sickens me.

This mutt claims to be Mr. Trial Attorney. First, I have never seen the guy in the Court House. Second, he is a former prosecutor which means he went to trial to send those accused of crimes to jail and/or prison. He did not defend those accused of a crime, he accused them of a crime and fought like hell to ruin their lives.

Quick analogy, and please don't take it wrong because I respect most Prosecutors especially when they work hard to be fair and are honest, but their job is very different from a Criminal Defense Lawyer. There are people in the demolition business and their job is to destroy things. They knock down walls, rip out closets and floors, and generally destroy things. We have all had a hammer in our hand at some point in our lives and have hit a wall or a mirror or ripped something apart. Am I correct? You have at least broken a light bulb in your life right? It can be a tough job, it is difficult. There may be time constraints and, as a someone that demolishes things, you have to be careful that when your ripping something down that you don't destroy the good parts. You may break a light bulb but you do not want to break the light fixture itself. You may knock down a wall but you must be careful not to destroy a weight bearing wall that holds up the roof otherwise it collapses. Has everyone got the gist of this? It's a job, it's tough, has long hours, is tiresome, is thankless, and being a Prosecutor is also a difficult and dirty job.

Then there is the guy who builds a home, a foundation, flooring, electrical, plumbing, ac, etc. or the guy who constructs a light bulb. He takes the filament and attaches it to the metal and delicately places the glass around the bulb. He is a creator of things, whether it be a home or a light bulb. It's fair to say that it takes longer to build a home or create a light bulb than it does to demolish a home or smash a light bulb. This is the difference in what we do, Criminal Defense Attorneys and Prosecutors. The Prosecutors destroy lives and many of accused have done the crime so they have to do the time and I do not fault Prosecutors for doing their job but Defense Attorneys have to build a case. They have nothing, only negative useless parts to begin with, but they take that seemingly useless information and create a masterpiece. They create, and it takes time to do it correctly. Not everybody can build a house when only dirt exists. The dirt in this analogy is the testimony of police officers. They surely don't take the witness stand and say yes he had drugs or broke into a house but after learning about this individual he is actually a nice guy, right?   They just testify to everything they can to make the accused look like dirt.

To say that you have hundreds of hours breaking light bulbs and knocking down walls and destroying items does not mean that you can create a home or produce, from filament and glass, a working light bulb. Some individuals may have an idea of what to do but demolition and creation are far different creatures. Asking an officer, "what happened next? and then? what did you see? where did it happen?" is a complete contrast to looking between the lines and figuring out where the lies begin and end, and creating life from dirt. If you are a Criminal Defense Attorney, a police officer gives you dirt and using that dirt you must bring enough explanation so that a judge or jury can see through the dirt and realize that there is a buried treasure hidden amongst the dirt. That treasure is the truth. The truth stands somewhere between what that officer says and what your client tells you behind closed doors. the problem we have as Defense Attorneys is that our client rarely shares his story with the judge or the jury so we competent Defense Attorneys, who care about our craft, we must begin with dirt and create.

My point is I am sick and tired of watching commercials involving former prosecutors who stand up in their advertisements saying that they log hundreds of trials when all their experience is contrary to what criminal defendants are looking for in a defense attorney. For weeks, months, and years these "experienced defense attorneys," who are simply prosecutors changing their title, were breaking the chops of the accused and dishing out offers to settle cases that were disproportionate to the alleged crimes.

When they were prosecutors, they thought nothing of sending a man they did not know to prison or making him a convicted felon or having him labeled a sex offender. When you do that hundreds of times you become numb to what you are doing because the words "jail" or "prison" or "sex offender" are merely words and one year, two years, five years, ten years are but mere numbers.    AND THEN YOU MAKE THE CHANGE and you really think by saying in a commercial that you are a former prosecutor and that you are ready to go from breaking light bulbs to the creation of a home. You think you deserve to embellish and lie to potential clients about how much time you have spent in the courtroom.

When a defector comes from another country does he brag about how many American soldiers he killed while his country was at war with the U.S.?

Get my drift? It is ridiculous when these people say FORMER PROSECUTOR with hundreds of trials - it's all BS.

Take it or leave it - THAT'S MY OPINION

Law Updates for April 29, 2011

2011-05-04T04:06:00.000-07:00

Hayward, 36 FLW 829, 4th DCA, Error to admit evidence of defendant's prior DUI conviction. By taking the stand in his own defense and explaining why he refused to take breath alcohol test, he did not open the door to evidence about his prior DUI conviction where he did take a breath test and the results were used against him.

Ginsberg v. Miami Dade County, 36 FLW 832, 3rd DCA, Pretrial detention without bond - Defendant who violates condition of pretrial release forfeits right to conditional release under original bond, but does not forfeit altogether his constitutional right to pretrial release. Error to order defendant detained without complying with requirements of statute and procedural rules. Failure to comply with this cannot be cured by the fact that the defendant might have been given notice and opportunity to be heard before being denied bond.

McKay, 36 FLW 849, 3rd DCA, Abuse of discretion to deny challenge for cause of juror who indicated that if State presented credible evidence and defendant did not testify he would be more inclined to convict.

Power v. Boyle, 36 FLW 857, 1st DCA, Injunctions-Repeat violence - Incident involving uncivil and immature behavior, drunk and profanity, was not enough for injunction without evidence of threat of violence or overt act that would create reasonable fear that violence was imminent.

The Law Offices of Roger P. Foley,P.A.

Law Updates for April 22, 2011

2011-05-02T10:34:00.000-07:00

Harris, 36 FLW 163, Fla, (another dog sniff case) To meet the State's burden of probable cause to search a vehicle after a dog alert the State must show that the officer had a reasonable basis to believe the dog was reliable under the totality of circumstances standard. To meet this burden the State must present the meaning of the particular training of the dog, field performance records, and evidence concerning the experience and training of the officer handling the dog, as well as any objective evidence known to the officer about the dog's reliability in being able to detect the presence of illegal substances within the vehicle. Evidence that the dog has been trained and certified to detect narcotics, standing alone, is not sufficient to establish the dog's reliability for purposes of determining probable cause.

McCloud, 36 FLW 777, 4th DCA, Refusal to give LIO instruction for trespass where all elements of offense in charging document and evidence supported those elements. Failure to instruct on offense one step removed reversible error.

Browning, 36 FLW 787, 1st DCA, Kidnapping. Victim passenger in vehicle. Defendant fled from police before arrested. Detention of victim during commission of crime kidnapping, keeping victim in car against will, and driving off not incidental to crime of fleeing and eluding, consequential and substantial. Victim forcibly removed from convenience store and from company of his friend, fleeing with victim in car made defendant's flight more likely to succeed as opposed to ordering victim to get out and waiting a few seconds for him to do it.

Montijo, 36 FLW 796, 5th DCA, In instructing jury on self-defense, justifiable use of deadly force, it was error to shift the burden to defendant to establish beyond a reasonable doubt that the victim was attempting to commit an aggravated battery on the defendant. Burden never shifts to the defense to prove self-defense beyond a reasonable doubt.

Murphy, III v. Lamberti, 36 FLW 801, 4th DCA, trial court improperly revoked defendant's bond without finding that "no conditions of release can reasonably protect the community from risk of physical harm to persons or assure the presence of the accused at trial." Trial court is not allowed to deny release solely on a finding that the defendant violated a condition of bond.

Dawson, 36 FLW 804, 2nd DCA, Pat down unlawful. Officers did not have reasonable suspicion that the defendant was armed with a dangerous weapon. Defendant stopped while walking along the highway, failed to comply with officer's requests to keep his hands out of his pocket was insufficient to establish reasonable suspicion where officers did not see any weapons or notice any bulges in defendant's clothing that would indicate he was carrying a weapon.

Sanchez-Andujar, 36 FLW 808, 1st DCA, Alibi witness. Trial court erred in rejecting less restrictive measures and excluding defendant's alibi witness who had not been timely disclosed. State did not trigger any defense obligation by filing written demand for notice of intention to claim alibi. Exclusion of defense witness is not harmless error beyond a reasonable doubt that witness testimony could not have proved a reasonable doubt in minds of jurors sufficient to tip the scales in favor of am acquittal. Martin 41 So. 2d 1100(4th DCA 2010

The Law Offices of Roger P. Foley,P.A.

Stop and Frisk

2011-04-25T08:54:00.000-07:00

Every day, potential clients come into my office claiming that their arrests should be thrown out because they were illegally searched. The scenario is almost always the same: the client was walking down the street or driving in his car. He was told to stop for some reason by an officer, patted down, and illegal substances were found in his pocket. The client was then arrested for the substances, which the officer wouldn't have ever known about had he not stopped and frisked the client. Clients are often surprised to find that even though the officer didn't have a warrant, most of the time judges hold those searches to be perfectly legal. Why? Enter the Supreme Court in Terry v. Ohio.

In 1968, the Supreme Court held in Terry v. Ohio that because police officers face a lot of dangerous situations, they are allowed to "stop and frisk" anyone they are reasonably suspicious is committing, about to commit, or has just committed a crime. While it makes sense to give police officers some protection on the streets from purportedly dangerous criminals with weapons, the standard to stop and frisk is extremely low: an officer needs only "more than a mere hunch" that a crime is/has/was occurring.

Police officers can stop and frisk you for almost any reason, and they do - especially in high crime areas and minority communities. When an officer is writing his report, he'll say that he stopped you because you were acting strangely, you were in a high-crime area, it was late at night, you were loitering, you were hiding behind something, or any other number of behaviors deemed "suspicious." He'll say that he frisked you because he was concerned for his own safety, he didn't have backup, you were evasive, you were bigger than him, or any combination necessary to make the frisk (and any evidence found as a result) legal under the eyes of the law. Anything found during the frisk that is illegal gives the officer probable cause to make an arrest. This can turn a walk to your friend's house into a night in a jail and an extensive legal battle to clear your name.

Police encounters can be scary and confusing. Many people do what they are told by an officer, even when they don't have to, simply because they do not know their rights or are too nervous to remember them. Unless you are being detained, either by a show of force or a show of authority, you are free to walk away from a police encounter. The best way to determine if you are free to go is to ask! "Am I being detained or am I free to go?" The answer will be clear. If you aren't being detained, carry on with your day. No need to stick around, unless you really have a desire to chit chat with police officers on duty.

If, however, the officer tells you you are being detained, or he has the blue lights on in his patrol car, or he throws you up against a wall or the ground or his patrol car, it's a safe bet that you are being detained. The detention could very well be illegal, but if you find yourself in such a sitation: don't resist. Resisting can only make the situation worse for you. Let your lawyer fight it out later on in court.

When you are being detained, the officer can legally pat you down for what he believes in his "training and experience" to be concealed weapons or contraband. Some people think that they will be making things easier on themselves if they announce their possession of illegal substances right away. Doing the officer's job for him isn't making things easier on you - it's making it easier for the officer to arrest you and easier for the State's Atttorney to convict you. Anything you say can and will be used against you. Telling the officer you have weed in your pocket is a confession and voluntary confessions make defending you a whole lot more difficult. So, just remain silent if you are being stopped and frisked.

[You should also know that you don't have to pull out your pockets for them - that's their job. Emptying your pockets for a police officer is the same as consenting to a search. Don't do it; you have the right to refuse searches.]

Officers know what they need to say for a stop and frisk to be found legal. But remember, just because they write the buzz-words in their reports doesn't mean that your case is lost. It is up to your lawyer to challenge illegal searches. While Stop and Frisk laws (also known as Terry Stops) give law enforcement broad authority on the streets, knowing your rights and utilizing them can help your attorney use the law to your advantage to fight back in court.

Law Updates for April 15, 2011

2011-04-21T13:35:00.000-07:00

Rogers, 36 FLW 725, 4th DCA, Protective sweep - Officers responded to a neighbor's 911 call reporting men and women arguing, throwing things, and being violent, entered the residence without a warrant when they heard the male voice cursing and ordering someone not opening the door. Trial court erred in denying the Motion to Suppress cocaine and drug paraphernalia seized from the locked bedroom within the residence. The search of the premises were impermissibly broad

Ferguson, 36 FLW 727, 4th DCA, Third Party consent - Court properly found that def's girlfriend, a co-occupant of the apt, validly consented to the ofcs entry into the apt where the girlfriend possessed a key to the premises, made sworn statement to the ofcs she lived with the def of the apt, kept substantial amount of clothes in the residence and was allowed to be alone in the apt and was so on the night of the incident. Fact that the girlfriend was not on the lease is not dispositive of her claim of actual authority given the fact that the def's name was not on the lease. No error in denying motion to suppress of gun found in plain view in the bedroom.

Washington, 36 FLW 733, 4th DCA, Good case - Trial court was mistaken in believing it did not have discretion to reinstate probation without grounds for a downward departure, where the original sentence was a downward departure. Remand for re-sentencing so the court may consider def's request to reinstate probation, court can reinstate under 948.06 without it being considered a downward departure, Harrison, 589 So. 2d 317, 318(5th DCA 1991)

Jones, 36 FLW 741, 5th DCA, Continuance - Abuse of discretion to deny motion for continuance filed by newly appointed counsel where counsel clearly had insufficient time and resources for trial. Although def failed to waive speedy trial in this case, speedy trial was not an issue. Good case for this issue where judge forced the new lawyer into trial quickly.

The Law Offices of Roger P. Foley,P.A.

Law Updates for April 8, 2011

2011-04-13T13:59:00.000-07:00

Roussonicolas, 36 FLW 644, 4th DCA. Trial court reversibly erred in ruling that the transcript of sworn testimony exonerating the def given by co-def at def's bond hearing was inadmissible. Co-def was unavailable to testify at trial, invoked 5th A. The State had the opportunity to cross co-def at the bond hearing and, given exculpatory nature of the testimony, the State had similar motive at bond and at trial to discredit the co-def's testimony and show it was not worthy of belief.

Trapp, 36 FLW 652, 4th DCA. Error to allow the State to go into the specifics of def's prior perjury conviction when he admitted the conviction. Def did not open the door when he said he told the victim that if she lied she would be charged with perjury. State argued in closing as reason to reject def's version and accept victim's version and case was based on conflict in testimony of both. Plus Allen charge needed as jury was out a long time deliberating.

Robinson, 36 FLW 655, 4th DCA. Error to exclude defense witness on the ground that the defense failed to give the State notice of intent to claim an alibi, where witness was not presenting an alibi as contemplated by the rule, but rather a general denial of criminality, and testimony that the brother would testify that defendant was not present at the crime scene. Error to prohibit defendant from testifying on his own behalf that he was not at his parents house when police allegedly saw him exit parents' residence, and put in a garbage can what was allegedly a Ziploc bag containing cannabis. Defendant may testify to his own activities without filing notice of alibi if he is the sole alibi witness. Error compounded by prosecutor when she said he took the stand and "did not say anything." New trial.

Mack, 36 FLW 682, 1st DCA, Comment on def's right to remain silent. Trial court erred in denying motion for mistrial where the investigator testified that at the time of his arrest, the def made no statements and said he would rather talk to his attorney and did not want to talk anymore.

The Law Offices of Roger P. Foley,P.A.

Law Updates for April 1, 2011

2011-04-06T12:30:00.000-07:00

R.H. 36 FLW 604, 4th DCA, Juvenile could not be adjudicated delinquent for possession of weapon on school property based on his possession of common pocketknife, blade 3 1/4 inches.

Coleman, 36 FLW 618, 1st DCA, Comment on right to remain silent - Detective's testimony that the defendant "abruptly ended the interview" when detective told her he suspected certain thefts involved a single employee of the victim who had opportunity and ability to gain access to two different stores at which the thefts occurred and when the detective began "to put those pieces together." New trial - the comment was not harmless.

Miles, 36 FLW 620, 1st DCA, Statement of def was unequivocal right to remain silent when he told the police, "actually I do not know nothing about this, so I'm not fixing to say nothing about this," made at outset pre-Miranda and detectives were required to terminate interrogation at that point. Error not harmless. see Cuervo, 967 So. 2d 155(Fla. 2007)

J.L., 36 FLW 626, 5th DCA, Burglary, Curtilage - Testimony that there was a fence in the back of the dwelling, and a fence between the dwelling a and neighboring house, was insufficient to prove that the juvenile took property from the curtilage of the residence when he took property which was leaning against the side of the dwelling.

The Law Offices of Roger P. Foley,P.A.

Law Updates for March 25, 2011

2011-03-30T11:25:00.000-07:00

Ranglin, 36 FLW 561, 4th DCA, Court erred when it refused a challenge for cause to a juror that said under no circumstances would be appropriate for a man to hit a woman. Reasonable doubt if juror could fairly consider the def''s case for self-defense. Denial of cause challenge forced the def to use all of his peremptory challenges precluding him from expending challenges on other jurors and was reversible error.

Moncrieffe, 36 FLW 565, 4th DCA, Escape - Evidence failed to show defendant was validly arrested and in lawful custody of the police at the time of alleged escape. Officer exceeded his authority by taking def into custody outside the territorial limits of his jurisdiction without a warrant. Fact: there was pc to arrest is not controlling.

Hentz, 36 FLW 568, 4th DCA, Search and seizure, Intercepted communications - Error to deny motion to suppress evidence seized based on incriminating responses made by def, who was in his home, during telephone conversation with the co-defendant, who was in police interview room equipped with recording equipment sensitive enough to record both ends of the telephone conversation. Officer intentionally intercepted def's oral communication within the meaning of the statute prohibiting interception of wire, oral or electronic communication. Def had reasonable expectation of privacy in phone conversation at home, did not direct his conversation to multiple people and did not know the co-def was sitting in police interview room room at the time of the conversation.

O'Brien, 36 FLW 574, 1st DCA, After def invoked right to counsel, police unlawfully initiated conversation with the def (40 minutes later). He expressly asked would the def be willing to reconsider and speak with a detective at the station and officer stated we'd appreciate it when the def was vacillating, and telling the def the truth would come out after the authorities interviewed the child victim. Def subsequent written waiver was involuntary. New trial, Harmful error.

The Law Offices of Roger P. Foley,P.A.

Law Updates for March 11, 2011

2011-03-19T05:33:00.000-07:00

Cannon, 36 FLW 444, 4th DCA, Undercover officer, in giving defendant cocaine after transaction was complete and allowing him to go into the community with that substance, was in violation of due process where officer created the situation for possession to occur. Charge properly dismissed. Earlier charge of sale of cocaine was improperly dismissed, as the offense had already been completed prior to allowing the defendant to take cocaine.

Ortuno, 36 FLW 471, 1st DCA, Lewd and Lascivious, Hearsay - Abuse of discretion to admit alleged victim's prior consistent statements made during interview with CPT, which did not occur prior to the time that a motive to fabricate existed. Not harmless where case was based on the truthfulness of victim and defendant. Testimony was repeatedly raised and communicated to the jury by three different witnesses, and CPT interviewer was qualified as an expert, creating inference she had the ability to extract truthful responses from sexually abused children. New trial.

The Law Offices of Roger P. Foley,P.A.

Law Updates for March 4, 2011

2011-03-09T09:15:00.000-08:00

Pantoja, 36 FLW 91, Fla, Lewd and Lascivious Molestation - Trial court properly excluded evidence that Victim had accused another person of molesting her and later recanted that accusation. Under 90.610, not admissible as impeachment by evidence of prior misconduct where there was no criminal conviction as a result of the misconduct and not admissible to prove bias or motive to lie. Not admissible under 90.405(2) where Victim's character was not an essential element of the charge or defense and not admissible as a specific instance of misconduct to show that the Victim was inclined to lie about sexual abuse. Exclusion of evidence did not violate def's right to confront the witness.

Self, 36 FLW 419, 5th DCA, Speedy trial-Prohibition - The defendant did not waive speedy trial by making an objection to admissibility of business records upon which the State intended to rely to prove def's failure to register as a sex offender. Continuance was attributable to the State where def raised the objection well before trial, and continuance was granted where the State was not prepared for the hearing on def's objection. State did not seek extension of the recapture period or demonstrate exceptional circumstances existed to warrant extension of the recapture period. Discharged

Ibarra, 36 FLW 423, 2nd DCA, Discovery-State failed to comply - Trial court erred in allowing the State to impeach def with a previously undisclosed ORAL statement to detective that was contrary to def's trial testimony with first conducting a Richardson hearing to determine if discovery violation occurred and was the def prejudiced.

The Law Offices of Roger P. Foley,P.A.

Law Updates for February 25, 2011

2011-03-04T10:15:00.000-08:00

McKelvin, 36 FLW 347. 4th DCA, Anonymous tip - Investigatory stop of the vehicle, where unidentified anonymous person approached officers and gave them a detailed description of a vehicle, including its tag number, and the occupant of the vehicle, who was engaged in suspected illegal activity. The officer did not have reasonable suspicion justifying an investigatory stop of the vehicle, where the information provided by the anonymous source was not sufficiently corroborated by the officers. Tipster was not a citizen informant; no different from someone who gives info over the phone where the informant gave no contact information or other way to locate the informant.

Bonge, 36 FLW 354, 1st DCA, Battery - Given facts of the case, which were admitted by the State, State could not establish that the def intended to touch his infirm and elderly mother against her will when he lifted her from her wheelchair and placed her in his car for transport to the emergency room. Error to deny def's motion to dismiss.

The Law Offices of Roger P. Foley,P.A.

Law Updates for February 18, 2011

2011-03-04T10:10:00.000-08:00

Blackmon, 36 FLW 296, 2nd DCA, - Conviction for Carrying a Concealed Firearm reversed. Evidence was insufficient to prove firearm that def carried was ever concealed. Officer's testimony that he was unable to see firearm in def's possession from his vantage point until the moment the firearm was pointed at him was not sufficient to prove concealment.

Elghomari, 36 FLW 304, 4th DCA, Statement of child victim allowed requisite findings of reliability per statute, no discovery violation, state not required to disclose that the victim's oral statement revealing two incidents of molestation that were charged in the information, were not written or recorded and did not materially alter a prior written or recorded statement previously provided by the state to the defendant

McCloud, 36 FLW 313, 5th DCA, No error in sentencing the def to prison - Sanction based on the information that def could present a danger to the public, by voluminous theft record and not violence. Statute "danger to the public" not only person threatening physical violence or injury.

Pierre-Charles, 36 FLW 329, 2nd DCA, Hearsay - Trial court erred when it admitted head nod of def's brother which was introduced by the state as a affirmative response to father's question whether or not the def committed the murders, reasonable possibility the error effected the verdict. Head not considered hearsay in form of nonverbal assertion

The Law Offices of Roger P. Foley,P.A.

The Ambien Defense and The Client Who Knows Best

2011-02-25T11:33:00.000-08:00

This past week was the final act in what I refer to as "The Ambien Defense" case.

A client and her family arrived at my office about a year ago and confided in me that the client had been arrested for DUI, a common scenario in my office. The gist of this particular case was that the client performed roadside sobriety exercises, thought she did well during the performance, but did not remember much else. She had been in an accident but did not remember driving. The only thing she did remember was going out with a friend, having some drinks, and then being dropped off at her home. The client additionally had some medical issues such as anxiety, depression, etc., and felt that the police were not very just in their arrest of her. Additionally, the client was at risk of not receiving her professional license due to the arrest.

I was hired and began the process of filing in on the case, reviewing the discovery (all the information the State has against her), and then taking depositions. The depositions are the sworn statements of the witnesses at the scene (officers, accident victim, eyewitnesses,etc. ), the goal of taking which is to find mistakes in the case as well as the perspective of the State's listed witnesses (aka the people the State Attorney's Office is relying on to get a conviction). I began the process and started researching the applicable case law when the family member and client suddenly started calling and talking about "The Ambien Defense." The client had apparently been prescribed Ambien and had taken it on the night of her arrest. She claimed that she remembered nothing and it was not her fault; it was the Ambien's fault.

The client and her family pointed me to literature that discussed reports by some Ambien users of sleep walking and not remembering their actions. I understood their belief in the defense to be misguided, but I take my duty of defending cases seriously, so I researched all available information on the subject. I found that there had never been a successfully defended trial using this defense, and as I suspected, I found that this defense would not be applicable to this client's case. First of all, Ambien is not to be combined with alcohol as it clearly states on the prescription bottle. This client knew of this prohibition, but took it anyway. Second of all, and more importantly, this particular client gave a breath test with a result of over .08, which by itself is sufficient for the state to have a guilty verdict (although it is a rebuttable presumption). DUI is not a specific intent crime. Although there is a chance of arguing involuntary intoxication in DUI cases (rare), this client had been drinking and she knew not to take Ambien with alcohol but did so regardless. Thus, the intoxication was not involuntary. The Ambien Defense was just not applicable in her case.

Still, I read everything regarding the drug and the legal issues surrounding it, in addition to literature sent to me by the client's family, and then I shared my thoughts with them that "The Ambien Defense" was not likely a winning defense for the reasons stated above. I told them that there were other applicable defenses, but to convince 6 jurors that she was sleep walking like the characters do in the cartoon Scooby Doo was just not a story that jurors would believe. Especially not with a breath over the legal limit.

The client and family were not happy with my advice, and they then informed me they wanted a meeting with the State Attorney. THE STATE ATTORNEY. Not the Assistant State Attorney that was assigned to the case, but The Elected State Attorney, because they wanted to explain the inequities of the case to him. I, of course, explained that The State Attorney does not have private meetings with defendants in criminal cases and that is something that only happens on television. And that further more, even if it was something that could be done, it would be a terrible idea for them to do so. That sent the client and family into a tirade that I didn't know anything and that all of my plaques, years of education, and numerous victories meant nothing to them because I did not understand her situation and I did not know the law. Yes, it can be a thankless job.

They ultimately decided to hire another attorney to put on The Ambien Defense. This is the point in the story where it becomes funny to me. First, I was already paid in full, yet they decided to go somewhere else and hire another attorney. Next, I found out that they hired another attorney in town and I recognized the name. When I read more about the attorney and read the attorney's website, I found a whole section on the website dedicated to discussing Women and DUI. How interesting. The website goes on to say things such as: if you're a woman and are charged with DUI, then you need to hire a lawyer who understands women; Women have smaller bodies, smaller lungs, and other factors that cause them to be falsely accused of DUI. The menstrual period is a defense to everything. If you are having your period ~~or just take Ambien while drinking alcohol and claim not to remember anything~~, then your case should be dismissed. This lawyer of course understands women and their differences. Now I feel silly, because I HAD NO IDEA THAT WOMEN WERE DIFFERENT or that the law applied to them differently.

Did I mention that the defendant made a turn against the flow of traffic and went head on with innocent motorists, causing them injury?

I had been following the case for months and actually began to think that maybe I didn't know everything about DUI defense. The case was obviously being carried on for a while, so maybe there was something that I had missed. ... I thought that for less than 30 seconds before I smiled and said to myself: "are you kidding?! The Ambien Defense?!"

The "attorney for women" who gallantly rescued this woman from lesser attorneys like me made a show of it. Motions were filed putting the State Attorney's Office on notice of the Ambien Defense, which I can only guess caused some to say "wtf is that defense?" along with multiple "are you kidding me" statements. Then the attorney filed an interesting motion that I read and wondered: are there really lawyers out there that are this dumb or are they just grandstanding for their client? For those who don't understand, "grandstanding" is when a lawyer makes a big commotion in court on their client's behalf and everyone in the room knows that the argument the lawyer is making is b.s. ... everyone except the client. That's grandstanding. When the argument gets shot down, the lawyer can say he did everything he could and his client will believe it. Well, I don't grandstand. If my client has a bad case I simply tell them. I'm not going to make a fool of myself arguing something that I know has no merit. Anyway, the case was set a couple of times for trial but was continually reset. Then, this week, the big-huge-wonderful-understanding women-knowledgeable above all other lawyers-lawyer did the most magnificent thing, and the client was so overwhelmed that she got the result she deserved......SHE PLED GUILTY TO ALL CHARGES. How do I make that sound "Ta-Da!"?

I guess I don't know the law. The poor thing actually had to take responsibility for driving while her normal faculties were impaired by alcohol and prescription medication. For all those who are reading this: Yes, I tried to be in court to hear this woman plead guilty to the charges. The Ambien Defense and The Client Who Knows Best is likely to cause another accident, and even more likely to make up ridiculous defense to avoid taking responsibility for her own voluntary actions. And remember, she is a professional, so the next time you hire an accountant, doctor, lawyer, or any other professional, be sure to look up his or her background - because this is the type of person that is what is now becoming a "professional" in our society.
Thanks for reading, commenting, and taking the time to read my thoughts. God Bless.

Law Updates for February 11, 2011

2011-02-16T08:15:00.000-08:00

Steih, 36 FLW 254, 2nd DCA, Self-defense - Error to deny Judgement of Acquittal after close of State's case where the defense presented prima facie case of self-defense and State failed to prove beyond a reasonable doubt that he did not act in self-defense when he stabbed the victim.

Baker, 36 FLW 275, 1st DCA, Denial of expungement by the court - Court abused its discretion and its reasoning was insufficiently related to the facts and circumstances of the case. Improper to deny based on the def's occupation as related to the nature of the charge.

The Law Offices of Roger P. Foley,P.A.

Law Updates for February 5, 2011

2011-02-08T14:22:00.000-08:00

Simms, 36 FLW 206, 2nd DCA, Neither the anonymous tip, received at 10:30 p.m. on Halloween night, reporting that a thin, dark-haired, six foot tall man wearing a flannel shirt and pants was trying to open car doors on the block in a certain residential neighborhood, nor the officer's observation of the defendant was sufficient to provide the officer with a basis for officers to stop the defendant on suspicion of attempted burglary of automobiles. Arrest for loitering and prowling cannot be based on anonymous tip and conduct observed by the officers did not create a level of imminent harm or danger needed for detention and subsequent arrest for loitering and prowling. Error to deny motion to suppress evidence found in search incident to lawful arrest

Reyes, 36 FLW 209, 2nd DCA, Voir Dire/Cause - Court erred in denying cause in a sex case where juror described her involvement with child victims of sexual abuse and sex abuse issues in her family and jurors responses during voir dire clearly did not express a final, neutral, and detached determination to sit as a fair and impartial juror.

Ha, 36 FLW 220, 1st DCA, Motion to Withdraw - The plea should have been granted. The Judge improperly initiated plea discussions. Judge did not allow the def to withdraw plea even though he later determined that sentence in excess of plea agreement had to be imposed. Trial judge stated and implied that def would have received lesser sentence if pled prior to jury selection, and it appears that not all the discussion with the judge about the plea was on the record.

The Law Offices of Roger P. Foley,P.A.

Law Updates for January 28, 2011

2011-02-05T14:40:00.000-08:00

Hill, 36 FLW 170, 1st DCA, Vehicle Stop-Flight - Where ofc observed def standing in front of a parked car in the vacant lot of a closed gas station in a high crime area at 1:15 a.m. and def entered the car and departed upon making eye contact with the officer, the ofc did not have reasonable suspicion justifying the stop of the vehicle. Error to deny motion to suppress marijuana and firearm discovered in search of the vehicle.

The Law Offices of Roger P. Foley,P.A.

Law Updates for January 21, 2011

2011-02-05T14:35:00.000-08:00

Ruiz, 36 FLW 99, 4th DCA, Search and Seizure, Consent, Voluntariness - The Appellate court must defer to the express finding of credibility made by trial court in denying motion to suppress drugs found in def's apartment. Although pages on record, Appellate Court finds police version of events regarding def's consent unbelievable - good dicta

M.M., 36 FLW 105, 1st DCA, Resisting officer without violence - Juvenile's refusal to give name or identification to requesting officer did not constitute resisting or obstructing where juvenile was neither under arrest nor otherwise lawfully detained at the time of refusal.

M.W., 36 FLW 111, 2nd DCA, Obstruct or oppose officer without violence, lawful execution of legal duty - Trial court erred in finding that juvenile committed a delinquent act of obstructing or opposing an officer without violence where obstruction occurred during warrant less arrest for a misdemeanor assault outside the presence of an arresting officer. School administrator is not a fellow officer whose observation of the assault could be imputed to the arresting officer.

Caldwell, 36 FLW 115, 2nd DCA, Voir Dire, Cause - Trial court abused its discretion when it denied def's challenge for cause to juror whose responses brought into question her ability to be impartial to a def who might not testify. Good language is not the defense duty to rehabilitate the juror and reasonable doubt is not overcome by the juror's silence to a question later to the whole panel as to that general issue.

The Law Offices of Roger P. Foley,P.A.

Law Updates for January 7, 2011

2011-01-18T07:35:00.000-08:00

Thermidor, 36 FLW 5, 4th DCA, Abuse of discretion for court to allow evidence of uncharged crime of armed robbery, taxi cab and victim in main case could not identify the defendant in court - not harmless, where dissimilarities outweighed similarities and there did not appear to be anything especially unique or circumstances which would point to the defendant.

Tripoli, 36 FLW 36, 4th DCA, Collateral crimes evidence - Erred in admitting uncharged collateral acts where testimony about the def's actions of placing another child on his lap while he was tutoring the child was not probative of def's guilt or innocence of charge of lewd and lascivious conduct against the victim, beyond it's showing def had a propensity to molest children or it was his character to do so-not harmless.

The Law Offices of Roger P. Foley,P.A.

No Refusal DUI Checkpoints?

2011-01-11T09:00:00.000-08:00

Florida Statutes 316.1933 and 316.1932 allow blood draws to be used only in a limited number of scenarios: either there has been serious bodily injury, a fatality, or the person from whom blood is to be drawn appears in a medical facility for treatment and a breath test is impractical. Consensual blood tests are of course always permitted... but we would hope that in this day and age no one would willingly agree to one.

A blood draw is only supposed to be requested when one of the above statutorily prescribed circumstances exists. When the circumstances are not present, the legislature provided for the use of breath tests/urine tests. None of this apparently matters any more, however, in light of Florida’s new “No Refusal DUI Checkpoints.” Now if you refuse a breath test during a traffic stop and a judge happens to be on site and issues a warrant, police can perform a mandatory blood test.

Huh?

Judges are supposed to be neutral like game referees; they have no right to make their own laws or help police in the enforcement of the statutes. Since when do judges have the power to act in concert with law enforcement? What happened to separation of powers? Are these judges going to ignore what the legislature has written, specifically chapter 316 of the Florida Statutes? Is there going to be a new roaming judicial division set up specifically to follow police around and issue warrants for otherwise unlawful blood draws? Images of circus clown cars come to mind. If you refuse to talk when being questioned is the judge going to hit you with his gavel? Is he going to write an order that waives all of your rights?

What this DUI checkpoint policy is essentially doing: helping the local government justify their existence and churning out more money to pay for it. Police will be able to make more arrests and pad their arrest numbers, justifying more personnel and requiring more money to run. This is on top of the overtime they already get for each DUI arrest. More overtime means Mr. Policeman makes more money, which means we pay more taxes, the government gets larger and more powerful, and your freedoms diminish. Which is all fine and dandy, until you find yourself going for a ride in a police car and requiring an attorney.

Any judge that proposes this should decide what they really want to be: Judges, Police Officers, or Politicians. Attention Judges: If you want to be a police officer and fight crime, go take a fitness test and enter the police academy. If you’re not happy with the laws of the state and feel compelled to change them, go schmooze, collect money, and run for a higher political office. If you want to remain a judge, then go back to the Bill of Rights, the Florida Constitution, the Florida Statutes and READ THEM. Pay specific attention to the 5th and 14th amendment

Just my humble thoughts.

Florida Tickets and Suspensions

2011-01-05T08:58:00.000-08:00

Most people do not know what will happen to their Florida license if they receive a ticket in another state. This is understandable because traffic compacts between states are not uniform and can be complicated. There are Non-Resident Violators Comapcts, Drivers License Compacts, and the National Driver Register, each of which have varying rules and requirements.

Florida has adopted the Non-Resident Violators Compact (NRVC) and the Drivers License Compact (DLC). Under these compacts, the "other state" a ticket is received in will send the "home state" the ticket information and it will be added to the "home state's" driving record. The information sent to the "home state" has to identify the person convicted, describe the violation, and indicate what kind of plea was entered.

This means that when a person who holds a Florida license receives a ticket in another state and it is reported to Florida, that person will receive points in Florida (if the ticket is one for which points would be assessed pursuant to chapter 322 of the Florida Statutes). On top of that, Florida does not allow any school or program to remove points for a ticket received in another state. So, while you're driving on your family vacation and you get busted for speeding, you may be taking those points home with you if you admit guilt in the other state, and there isn't a whole lot you can do about it after the fact.

Florida will also suspend your Florida license if you fail to pay a ticket reported by another state and it is not dismissed by that state.

Drivers license issues are sometimes a little more complicated than they may first seem and we all know how difficult it is to be stuck without a license. This is why it's important to contact qualified attorneys to review your ticket options.

Copyright (c) 2011, Law Office of Roger P. Foley

The Law Offices of Roger P. Foley,P.A.

Juvenile Convictions - More Trouble Than You Think

2010-12-30T12:13:00.000-08:00

Juvenile cases are no joke. Many people scoff at the idea that anything serious will result from juvenile charges because they simply do not know the reality of the juvenile court system. Charges a child receives can and will follow him into adulthood. Perhaps the most important thing to note about juvenile court is the consequences a juvenile conviction poses. Many participants are under the impression that a juvenile conviction has no meaning and that it won’t “count” as an adult. This is a huge misconception. Under Florida Statute 921.0021, “Juvenile dispositions of offenses committed by the offender within 5 years before the primary offense are included in the offender’s prior record when the offense would have been a crime had the offender been an adult rather than a juvenile.” This means that juvenile convictions can count on an adult score sheet, which ultimately means that an 18 year old could score prison time on a first time adult offense.

When little Johnny is charged with battery after a neighborhood fight, he may get only a slap on the wrist, do some community service hours with the Boys and Girls Club, and have to write an apology letter. Everyone will jokingly say “boys will be boys!” and the whole incident will soon be forgotten. Then, when that same Johnny gets into a bar fight as an adult, those conviction points from his juvenile case could very well help land him in prison. On a first adult conviction. Better yet, on an adult conviction that, without the juvenile points, would likely have been resolved with probation. The old maxim that “boys will be boys” is no longer as endearing as it once seemed.

Juvenile Court handles the criminal cases of people who are arrested when they are under the age of 18. Juvenile Court is similar to “Adult Court” in many notable ways: minors who are tried in juvenile court have the right to an attorney, to remain silent, to confront witnesses and cross-examine witness testimony, to call witnesses, and to not incriminate themselves. Despite the similarities, it is important to understand that juvenile court is still separate from the adult court system and has different procedures and policies. The main difference: there is no right to a jury trial in the juvenile court; everything is held before a juvenile court judge. And, while juvenile cases generally result in rehabilitative treatment instead of incarceration, the court could detain a juvenile in a detention center for 21 or 30 days without bail in the case of a serious crime.

An important thing to note is that there is no guarantee that a person under the age of 18 will be sent to juvenile court. In fact, if the individual is close to the age of 18, has been charged with a violent crime, or is considered a "repeat offender," he may be tried as an adult in the regular criminal system and could face the same penalties as an adult.

Now it is easy to see why juvenile court cases should be taken just as seriously as adult cases. This is why minors should never speak to the police or authorities without legal counsel, or at least parents, present. Not only can what they say be used against them in court, but often, minors do not even realize what they are saying is incriminating. Parents seem to think that it's helpful to talk with the authorities, but it is important to remember that law enforcement officers are not usually a minor’s friends. Classroom lectures and after-school specials on TV would have youngsters believe that police officers are their best friends and that they should always talk to them because it’s the “right thing to do.” Wrong. Officers are there to do their job, which is to get evidence for their case, the outcome of which could affect that minor for the rest of his life. An adult would never talk to an officer about a pending criminal investigation without legal representation – and neither should a child.

11 year old Sallie is trying to break up a fight between two of her friends. She admits to the officer that she pushed someone in the process. Now she is charged with Battery. Did she technically do anything wrong by trying to break up the fight? No. But she did just get herself into trouble by explaining what she thought was a harmless scenario to an officer she wrongly believed would understand her side of the story.

This is not to say that honesty isn’t the best policy, as we all preach to our children from a young age. This is to say that silence is golden. A minor may think that he is “doing the right thing” or “helping” by talking to the police, but 9 times out of 10, he is only digging his hole deeper. He’s giving the police the evidence they need to arrest him, and usually he doesn’t even know it.

A lot of parents seem to want to “teach a lesson” to their children who have gotten into criminal trouble by telling the police to take them to jail. While this is an honorable, and certainly understandable, response to the situation, it really does more harm than good. “Let him sit there overnight and think about what he did,” is often the parent’s response. Or, even worse, “Timmy – you had better tell the officer the truth about what you did!” Maybe Tiny Tim will learn his lesson by being punished that way, but then later on in life when he gets a DUI or holds weed for a friend or is in trouble for carrying a knife that he didn’t realize was concealed, that childhood night in jail and forced admission will come back to haunt him.

Parents – do your kids a favor and don’t get them into trouble criminally. Ground them. Lecture them. Make them clean the house or run suicide sprints like a basketball coach. Embarrass them by supervising all of their dates. But don’t force them to talk to the police without a lawyer, and don’t make them sit in jail over night if you can help it. Juvenile convictions can have much larger effects than are immediately apparent and can be crucial later on in life.

The motto of the Juvenile Justice System is to "increase public safety by reducing juvenile delinquency through effective prevention, intervention and treatment services that strengthen families and turn around the lives of troubled youth." Rehabilitation and prevention are often used in place of punishment, and the sentences in juvenile court are generally “soft.” Minors who have stolen from others, or physically harmed someone, or even possessed drugs are often sentenced to community service hours and letters of apology instead of the incarceration they would be facing if they had committed the same crime after the age of 18. Although this means that juveniles often get what is viewed as a mere slap on the wrist, like little Johnny or Tiny Tim initially did above, juvenile court also gives young adults the opportunity to change their behavior and habits that they would not get if they were sent to adult court. They get a second, and often third, chance to straighten up. And if they do not, if they keep their bad behavior and continue to get into trouble, it will catch up to them.

One final important note: Police Officers can lie to juveniles. They can say anything they want and hold whatever a juvenile says against him, even if the juvenile’s parents or attorney were not present. Officers do not have to inform minors that they have a right to have their parents present; juveniles have to request to have their parents present, and they always should.

If you know a minor who is facing the juvenile justice system alone, have them contact a qualified attorney.

Legal Disclaimer: This information is not intended to create, and receipt or viewing of this information does not constitute an attorney-client relationship nor is it intended to be legal advice for any individual case or situation. You should consult an attorney regarding your individual case.

Copyright (c) 2010, Law Office of Roger P. Foley

The Law Offices of Roger P. Foley,P.A.

Law Updates for December 24, 2010

2010-12-29T12:45:00.000-08:00

Myles, 35 FLW 2819, 3rd DCA - DNA match with in the State Index Data Bank for unresolved crimes resulted in "cold hits" for unsolved rapes. Probable cause for the arrest of the def, and DNA swabs taken after the arrest were admissible.

Watana, 35 FLW 2824, 4th DCA, Consent, Voluntariness - Record supports trial court determination that there was no voluntary consent to search def's person even though def was properly stopped for speeding. Trial court was free to reject ofc's testimony that when he asked the def to step out of the vehicle, and then for permission to search his person, def complied with all the ofc's request without withdrawing or resisting consent. Court finding any consent given was submission to authority and not voluntary, supported by competent evidence. Nothing in record to indicate that a search of his person was anything more than one step in the ticket writing process.

Neal, 35 FLW 2835, 4th DCA, Evidence - Trial court erred in allowing police ofc to testify it is common not to find a gun in armed robbery cases. Testimony describes general behavior and, used to bolster the charge this was an armed robbery even though no gun was found or linked to the def, was prejudicial and not harmless.

Barrios, 35 FLW 2837, 4th DCA - Prosecutor's comments during closing argument asking the jury if they would allow the def to get away with it and arguing the only true and just verdict was guilty was improper and prejudicial-new trial.

Lewis, 35 FLW 2848, 4th DCA, Kidnapping - Court should have granted a JOA, Def's actions of ordering store manager to a different room of the store during the robbery, ordering manger to lie on the floor, and unlocking one of the handcuffs so that neither victim was bound or barricaded when the def fled insufficient to lead to the separate crime of kidnapping.

Higerd, 35 FLW 2874, 1st DCA - Possession of child pornography in Airline luggage. First Impression, Administrative search of an accordion folder inside def's checked baggage by TSA officer. Bag was randomly selected. Physical administrative search of luggage was not unnecessarily extensive or inclusive and did not violate the 4th A. TSA officer stopped as soon as saw the pictures and contacted police who got a warrant. Even if search violated 4th A., good faith exception to warrant applies because TSA officer would not have known search was illegal.

McCoy, 35 FLW 2876, 1st DCA, Trafficking in Hydrocodone - Jury Instructions. Trial court's failure to instruct the jury on prescription defense that the wife was holding her husband's medication was fundamental error, an error compounded by the prosecutor's closing arguments that there was no defense to the def's possession of the pills, where presenting an "affirmative defense" has to prove fundamental error for lack of the jury instruction which was done here.

Davis, 35 FLW 2882, 1st DCA, - Error to admit testimony of police investigator recounting statement of witness who had previously confessed to the investigator and implicated the def, but who testified at trial he was unable to remember anything about the incident except that he was one of the robbers. Testimony did not fall into the exception about statements identifying a person which applies if the declarant was an eyewitness or a victim or after perceiving that person soon after the crime or coming in contact with her. Officer's testimony could not be used as impeachment as the witness said he did not remember anything and no evidence that the witness appeared to be fabricating lack of memory. Not harmless error

Gentles, 35 FLW 2900, 4th DCA, - Seizure occurred when ofc directed the def to turn off his car engine, when ofc notified the def asleep in his parked car with motor running during early morning hours in a shopping mall. Seizure not based on reasonable suspicion of criminal activity or specific concern for officer safety or the health and safety of def or others. Trial court erred in denying the motion to suppress.

The Law Offices of Roger P. Foley, P.A.

Law Updates for December 17, 2010

2010-12-24T07:04:00.000-08:00

Dennis, 35 FLW 731,S. Ct., Stand your ground immunity. Trial court should decide the factual questions of the applicability statutory immunity, 776.032, should not be a C 4 Motion but a Motion to Dismiss under 3.190(b).

K.C., 35 flw 2694, 4th DCA, Possession of BB gun on school property. Evidence was insufficient to prove that BB gun juvenile with possessing was a deadly weapon, where it was in a book bag, not loaded and no evidenced used or threatened to use the BB gun as a bludgeon.

C.N., 35 FLW 2699, 2nd DCA, Disorderly conduct. Error to adjudicate juvenile delinquent for DOC for shouting and using foul language. No evidence that the juvenile's words either caused crowd to gather or incited the crowd to engage in an immediate breach of the peace. Officer did not have a reasonable suspicion that juvenile was committing a crime and was not performing a legal duty when he arrested the juvenile without a warrant for that offense. Error to adjudicate for the resisting charge.

Redd, 35 FLW 2706, 1st DCA, Trafficking in Cocaine. Double hearsay elicited by the state and heavily relied on to prove that the def was in possession of cocaine was not admissible and def did not open the door to its admission. Without hearsay statements state would not have been able to prove that the def had dominion and control over the contraband, knew of its presence, and knew of its illicit nature. New trial required

Freeman, 35 FLW 2748, 2nd DCA, Voir Dire. Error to deny challenge for cause for juror who expressed some doubt about her ability to be fair and impartial in her assessment of witness's credibility, stating she might give more credibility to police officers(Police officers in her family). Preserved for appeal properly, not required to show legally objectionable juror on the jury.

The Law Offices of Roger P. Foley, P.A.

Law Updates for December 10, 2010

2010-12-17T11:35:00.000-08:00

Cable, 35 FLW 705, Fla, Knock and Announce. Exclusionary rule applies to violations of Florida's knock and announce statute.

Burke, 35 FLW 2610, 2nd DCA, Evidence was insufficient to prove that the child was physically or mentally impaired, for purposes of 827.03(1), by def's acts of twisting his arm, pressing against his knee, and holding him by the hair, cites cases.

Colbert, III, 35 FLW 2624, 4th DCA, Evidence insufficient to sustain conviction for burglary of the retail store where the def was standing in the area of store open to the public when he broke the side glass panel of the jewelry case, reached in, and grabbed several pieces of jewelry. Fundamental error for leaving the scene of the accident. 316.061(1) when the evidence is insufficient to establish "driven or attended" where neither owner or someone in possession of the vehicle was present when the def crashed into the parked car.

Wyrick, 35 FLW 2666, 5th DCA, Def was properly charged with third-degree felony, rather than 1st degree MM, for DWLS where the defendant had been designated as a habitual traffic offender at the time the license was revoked. All three prior suspensions have to be for suspensions based on factors listed in 322.34(10)a 1-5.

Stelmack, 35 FLW 2672, 2nd DCA, Possession of photograph or representation that, in whole or in part, includes "sexual conduct of a child." - Error to deny JOA where the conviction was based on def's possession of several images showing faces and heads of children pasted onto images of 19 year old women lewdly exhibiting her genitals. No sexual conduct by a child only sexual conduct in images was that of an adult.

The Law Offices of Roger P. Foley, P.A.

Marijuana Cultivation: Grow Houses and Hydroponic Operations

2010-12-02T05:51:00.000-08:00

When it comes to indoor marijuana cultivation, Florida is one of the nation's leaders. Grow houses have been found in more than two-thirds of Florida's counties, and over 1000 hydroponic operations have been busted in Florida to date. As a result of the drastic increase in marijuana cultivation, Florida has employed multi-agency drug task forces such as HIDTA (High Intensity Drug Trafficking Area) that work alongside the Office of National Drug Control Policy to bust hydroponic operations.

Hydroponic grow houses enable operators to cultivate marijuana plants with higher levels of THC than are typical of plants grown outdoors. Sophisticated hydroponic operations use little to no soil, simulate sunlight by utilizing high intensity lamps, and incorporate irrigation systems of water and chemical fertilizers. Often, these types of operations include specially designed timing systems for lighting and watering, as well as electric meter diversions. Because of the technology used, many cannabis grow houses require little oversight. However, there are cases in which helpers are hired by cultivators to oversee the operations.

The increasing number of arrests relating to marijuana cultivation can be attributed in large part to the tumultuous climate of the economy. The virtually non-existent Florida real estate market has essentially left homes open for cultivation. The rise of abandoned and foreclosed homes in Florida combined with the high level of unemployment has created a perfect storm for cultivation and hydroponic operations.

Not all hydroponic operations are found within foreclosed or abandoned homes. Many such operations are run in rental homes. Growers often rent homes from landlords as tenants, typically looking for homes with large attic space to accommodate the technology that will be used. If attic space is sparse, growers have been found to cut holes through walls, or run their operations underneath the houses in order to provide adequate ventilation for both the high intensity lamps and the dampness caused by the irrigation systems. Heat reducing curtains and blinds, concrete subfloors that absorb heat, foam insulation, and underground exhaust systems are also typical installations and modifications found within grow houses.

Landlords provide an invaluable resource to law enforcement because landlords often have the contractual right under the lease to inspect their rental properties upon giving merely 24 hour notice to renters. If a landlord enters a home and has reason to believe that a hydroponic operation is being run in the home, either because he observed hydroponic materials or noticed other unusual modifications or damage to the home (including mold), the landlord may be able to provide the police with the evidence they need to obtain a search warrant. Additionally, landlords and homeowners have incentive to report their findings to the police 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. Reporting hydroponic operations immediately upon discovery to law enforcement provides homeowners and landlords a safe haven from prosecution.

Because the U.S. Supreme Court ruled in Kyllo v. United States, 533 US 27 (2001) that the use of infrared technology and thermal imaging to detect heat coming from suspected grow houses is intrusive on Constitutional rights and therefore illegal, law enforcement agencies have had to turn to other forms of investigation to locate hydroponic operations. The police have begun relying upon public reporting of unusual activities relating to the homes: uncommon amounts and types of trash around the home, added electrical equipment, exhaust emissions, unusual warmth around the house, smells coming from the house, et cetera. Many of these types of operations are discovered by law enforcement via anonymous tipsters and informants.

Other factors that alert law enforcement of the potential existence of a grow house may be unnoticeable by the general public. However, high power consumption and unusually large power bills (especially when the small number of people alleged to reside in the home is taken into consideration) are often the keys to discovering a hydroponic operation. Because of this, electricians and power companies are another important resource for the police. FPL can monitor spikes in energy use and report unusually high electric bills to law enforcement agencies. In addition, the very electricians who are paid by growers to bypass electric meters are often informants.

In conjunction with other methods of investigation, police officers have begun utilizing what is known as "knock and talks" at suspected grow houses, wherein officers attempt to speak with homeowners or renters without warrants. Aside from the factors previously mentioned that generally alert law enforcement to the existence of a grow house, officers have been known to wait outside of hydroponic stores and follow those who exit the stores home. Once they have this knowledge to tip them off, officers will either undergo long-term surveillance of suspected grow houses or immediately initiate the knock and talk. If they do not have sufficient evidence to obtain a warrant, they can and will try to gain access to a house by knocking on the door and simply asking whoever answers the door if the officers can come inside to talk for a minute. People who are not fully aware of their rights are often caught in this trap, either revealing their operations by cracking open the door enough for the officers to see inside or by letting the officers inside themselves. Once officers have either witnessed the operation first hand or obtained sufficient evidence to obtain a search warrant, they may enter the suspected grow house and seize and destroy all hydroponic equipment found, so long as photographs or videos of the evidence are taken. Videos and pictures of the evidence are now allowed to replace the actual evidence itself in courtroom presentation, making preservation of the evidence unnecessary pursuant to Florida Statute 893.10. Police officers who destroy the equipment are immune from civil liability.

Possession of cannabis (less than 20 grams) is a misdemeanor in the State of Florida. However, such charges can quickly transform into felonies when hydroponic operations come into the picture, under Florida Statute 893.1351, the Marijuana Grow House Eradication Act. Until recently, Florida law charged growers whose operations had more than 300 plants with a drug trafficking charge. Now, only 25 plants are necessary to constitute prima facie evidence that the cannabis is intended for sale or distribution. A grower with 25 plants can be charged with a second degree felony which carries with it a maximum sentence of 15 years in Florida State Prison. Grow houses that are found to have been the homes of a child further transform those same charges into first degree felonies, with a maximum sentence of 30 years in Florida State Prison. Florida's new grow house laws are even tougher than the Federal standard, which allows up to 100 plants before a trafficking charge can be pursued. Florida statutes, specifically section 893.135, define marijuana plants as seedling or cuttings with noticeable "root formation." Thus, even dead or already-harvested cannabis plants are figured into the total plant count by law enforcement. In addition to prison time, fines included with such charges can be in the tens of thousands, and they can be enhanced if the accused is a prior offender.

Other Ways Grow Houses are Discovered:

•Long-term police surveillance

•Hydroponic Store surveillance

•Anonymous tips

•Tips from "friends" and/or significant others

•Reports from FPL

•Informants

•Landlord tips

•Knock and Talks

•Search Warrants

•Operations in plain view

Key Grow House Indicators:

•Spikes in power usage

•Electricity bypass

•Unusual warmth around the house

•Odors from the house

•Reports of unusual activities

•People coming and going

•Uncommon amounts and types of trash

•Added electrical equipment

•Exhaust emissions

•Mold

For the Florida statute chapter regarding marijuana cultivation and penalties, see §893.135, Fla. Stat. (2010).

Law Updates for November 26, 2010

2010-12-01T13:05:00.000-08:00

Fernandez, 35 FLW 2549, 3rd DCA, Exclusionary rule does not apply to knock and announces cases, certify conflict with Coble 18 So. 3d(2nd DCA) to Florida Supreme Court. Does Florida statutory knock and announce provisions apply such that the exclusionary rule would apply.

Johnson, 35 FLW 2554, 3rd DCA, Prior testimony - The Court erred in excluding witness testimony from a prior trial where defense was unable to locate the witness to testify in second trial and witness testimony was relevant to claim of self defense.

J.T., 35 FLW 2559, 4th DCA, BB Gun - Deadly Weapon, for the state, cites the law, seems to be important that the BB gun was placed in evidence.

Holley, 35 FLW 2560, 4th DCA, Trial court reversibly erred in limiting defense counsel cross exam of state witness about her failure to appear for defense deposition and response for rule to show cause issued by trial court, where information was relevant to show her motive, bias, and lack of trustworthiness.

The Law Offices of Roger P. Foley,P.A.

Plea Bargains in Criminal Cases – Do You Really Want to Plea?

2010-11-29T12:25:00.000-08:00

Less than 8% percent of criminal cases go to a jury trial. Many argue that the percentage of individuals who actually make it to a jury is less than five percent. But does it really matter what the number is when we are talking about such low percentages? Why are defendants not exercising their Sixth Amendment right to a jury trial? The United States judicial system still operates under the ideal that the accused are innocent until proven guilty; so why are defendants accused of crimes relinquishing their given right? While it’s possible that the police are doing a wonderful job of investigating crimes and that everyone arrested is actually guilty of the crime charged, I don’t buy it and neither do you.

So why is this phenomenon repeatedly occurring? I think there are several likely reasons causing criminal defendants to forfeit their rights to a jury trial, but today I’m going to discuss two.

1. Police say what they need to say in order to get the conviction.

Do police officers lie? Yes. Why? I don’t know. But if I had to guess, I would say that it probably has to do with their frustration with the system. Police officers have to deal with individuals at their worst every day and are affected by the negativity. They see these perpetrators go to court, take a deal, and get slapped on the wrist with probation or a fine. Is that justice for the victims? Is that justice for the officers who put their lives on the line for the benefit of society? If you attempt to stand in an officer’s shoes, it is not difficult to see how an officer can feel that the high risks they assume are not fairly balanced against the punishments, or lack thereof, that defendants often receive. Through an officer’s eyes, defendants commit serious crimes and usually wind up pleading only to probation, only to be out on the street again ultimately putting the officer at risk once more. Combine that knowledge with normal daily stresses of the job, and you have an officer who takes justice into his/her own hands, altering testimony, saying what needs to be said in a police report so that the case never goes to trial, the defendant pleads guilty, the State gets the conviction, and the defendant goes to prison.

The career criminal will eventually commit enough criminal acts that he/she will score mandatory prison – finally paying their debt to society. … Right? Maybe. But the problem with this type of “justice” lies with the first time offender. The suspect who is in the wrong place at the wrong time. The guy who has the wrong friend. That guy, maybe you, who gets charged with a crime by an officer who embellishes the truth to get a conviction. Suddenly your life is ruined by the possibility of prison or the criminal record you will receive by a plea bargain to a probationary period. The officer has made the facts look unbeatable, the court system scares you, and so you forfeit your right to a trial by taking a plea. You see no other way out, and now your life is forever changed. That is one reason I believe defendants are throwing away their right to trial, their day in court, their opportunity to be heard, and taking the safe route: because officers have made defending a criminal case seem impossible to defendants.

Why else do defendants forfeit their right to a jury trial?

2. Inexperienced, greedy, lazy Criminal Defense Lawyers.

Walking into the court room every day of the week allows me to watch and critique other criminal lawyers. Who am I to critique others? I’m nobody famous. But I am a guy who took an oath to do my best for my client and I’m the guy writing this blog, so I will call it as I see it. The numbers may not be as low as the numbers of defendants avoiding jury trials, but when looking around the court room it appears that maybe 10% percent of the criminal defense bar actually cares about the system. Sure, all attorneys sit around discussing war stories, convincing themselves and others that they care. But the truth is that they sleep like babies when their clients plea to a crime and/or go to prison… especially when they have been paid their entire legal fee. How is it that 90% percent of criminal defense attorneys drive exotic cars, have $500-$1000 shoes, have multiple houses, but plea bargain nearly 100% percent of their cases without ever taking a deposition? How can they recommend to their clients that they plead guilty or no contest on cases that can be won by doing actual work; by taking depositions, by ordering 911 and dispatch tapes, by going to the scene of the alleged crime, and by talking to their client and witnesses? How?

It’s easy. Defendants have no idea that these lawyers plea bargain every case instead of actually fighting the fight. Criminal defense lawyers take advantage of the fact that the Florida Bar does not allow them to advertise their wins; if no one is actually counting, then attorneys can easily embellish to their clients how great they are prior to getting paid. Once they have their client’s money, the future becomes bleak for the client. Instead of taking depositions, looking for mistakes and constitutional rights violations, and doing actual work to represent the client to the best of their ability, the attorneys offer their professional advice that a plea is inevitable and the best choice, as contrasted against the possibility of prison. There is rarely a mention of the client being innocent until proven guilty. Instead of fighting the case and making the State prove guilt beyond and to the exclusion of all reasonable doubt, these attorneys are quick advise their clients to admit guilt (sometimes when they aren’t even guilty) and sustain convictions that will, in many cases, forever change the clients’ lives. All for the sake of getting paid and quickly getting rid of cases. Defendants take the plea because they trust their lawyer’s advice; they believe that the lawyer is looking out for their best interest. Unfortunately it seems that in actuality, many defense attorneys are looking out only for Number One.

It is sad to see that so many attorneys lack the enthusiasm necessary to do their job properly, even when paid. Did anyone get the memo that pleading Guilty or No Contest should be avoided, if possible, because of its actual effects on the client’s life? Not only can a plea eliminate future possibilities for the defendant, such as the ability to gain employment, rent an apartment, gain admission to a university, but a plea also carries with it numerous negative aspects, such as a criminal record, punishment, and possible future harassment or harsher treatment by police. When positive opportunities cease to exist and are replaced by negative consequences in a person’s life, the individual deteriorates and so does our society.

Whether the client actually committed the crime is irrelevant in this discussion. A defense attorney is supposed to fight for the defendant’s rights, as all of their billboards and advertisements so ironically say.

If you’re a criminal defense attorney and you disagree, re-examine yourself and think about the last case you plead without taking a deposition. Talk is cheap. Take a deposition and work on the case. Don’t plead every case. Force the State to prove your client guilty. When police make mistakes, when prosecutors make mistakes, those mistakes should be revealed and the defendant should walk away. Once enough people walk, the police and State will have to work harder to do their jobs right; they will be held to a higher standard and will be educated on the law. Don’t devalue our society by being lazy and taking the easy plea – take some pride by looking in the mirror at who you really are, not by what you hope is portrayed to people as you disguise yourself as successful with your fancy suits and expensive shoes. Try earning them before wearing them; it makes you feel a lot taller.

If you’re a police officer and you disagree, think about the last report you wrote, or the last time you testified. Was everything negative, or did you actually talk about the weaknesses of the arrest, or what the defendant did well during their roadside sobriety exercises?

If you’re a member of the general public, then I say: you’re welcome. Because it is better that you are informed.

The Criminal Process: A Briefing

2010-11-24T12:32:00.000-08:00

The criminal justice system can be very complex, extremely difficult, and intimidating without a guide to navigate you through it. The following is a brief explanation of the various steps in a criminal case.

Arrest: The criminal process usually begins when the police have begun a criminal investigation and subsequently take you into custody. “Custody” can mean one of two things: either you were physically arrested (handcuffed, taken to jail, fingerprinted, etc.), or you were served with a written Notice to Appear in lieu of physical arrest. Either way, you are considered arrested and this ultimately means that the government will formally charge you with alleged criminal violations.

First Appearance: After the initial police investigation and arrest, the first court date in a criminal case is First Appearance. During First Appearance, a person who has been arrested will stand in court before a Judge or Magistrate for the first time. That judge/magistrate will determine if there was probable cause for the arrest. If the judge finds that there was probable cause, he or she will set a bond. It is often beneficial to have an attorney present at First Appearance because an attorney can negotiate or argue on your behalf for a lower bond amount. Without an attorney present, the judge/magistrate will set the bond at his or her discretion. From there, the case will go to the State Attorney’s Office.

Case Filing: After the first appearance, a criminal case is then sent to the Case Filing Division of the State Attorney’s Office. There, an assistant state attorney is assigned to review the basic facts of the case and determine how charges should be filed. In making this decision, the case filer reviews police reports and witness information. Based on this, he or she ultimately decides whether the arrest charges should remain the same, be increased, decreased, or dismissed (also called no information). Often this is a critical time for a criminal defendant. If a person suspected of a crime retains an attorney quickly, that attorney may be able to speak with the case filer and influence his or her filing decision by discussing important factors in the case, such as mistakes made by law enforcement and important facts that may not be given in the police report. If the case filer decides to go forward and file the charge against you, despite your attorney’s best efforts, the next step is Arraignment.

Arraignment: Arraignment is a court date for the formal reading of the charges that the case filer has set forth in the charging document (called the Information). Arraignment is also where you will plead one of three ways: Not Guilty, Guilty, or Nolo Contendere (Latin for No Contest). Unless you want to waive your rights, get your case over with immediately, and you don’t care about being convicted, you will plead Not Guilty. Remember, you are innocent until proven guilty. Not Guilty pleas are entered when you are innocent, when there is insufficient evidence to prove guilt, when you are uncertain how to plea, or when you want to demand your right to a trial. If you hire an attorney before your arraignment, he or she will generally enter a notice of appearance, written plea of not guilty, and request for jury trial for you so that you do not have to go to court on that date. After a formal plea of Not Guilty is entered, the next court date will be set.

[Note that just because your attorney requests a jury trial does not mean you have to go to trial; it is merely posturing to put you on the path that will allow you to get the most information on your case. No one wants to go to trial, and anyone who is eager to go to trial is generally a fool. Requesting a jury trial is merely a formality that will allow you to get Discovery, make arguments, and fight your case as far as you can before even getting to trial. You may wind up not going to trial at all, but in any event, the formality of requesting is generally necessary.]

Discovery: After an attorney signs onto a case, he or she will demand Discovery from the State Attorney. Discovery is essentially all of the evidence the State has available to use against you in your criminal case. It is your right to examine discovery if you are going the trial route, and it includes written documents, police reports, pictures, witness statements, video recordings, audio recordings, etc. Generally, Discovery documents take 60 to 90 days to obtain. Once an attorney is able to examine the discovery, he or she will be able to see who all of the witnesses against you are, take depositions and find out what the witnesses have to say, investigate your case, and form a defense strategy. This is also the time during which your attorney will file applicable motions. Perhaps your Constitutional rights have been violated by an unlawful search and seizure. An experienced attorney will know to file a motion to suppress evidence obtained in violation of your rights. Or, maybe the State does not have sufficient evidence against you and will be unable to prove the elements of the charges. A skilled attorney will know to file a Motion to Dismiss and argue that your case should be thrown out all together. If the motions are successful, odds are your case will be over. If the motions are ultimately unsuccessful, then you will have to decide whether you want to negotiate a plea agreement with the State or take your case to trial.

Plea: If you choose not to go to trial, your attorney will negotiate a plea agreement with the State Attorney that will include the sentence to be imposed. You will ultimately go to court for a Plea Conference and change your plea from Not Guilty to either Guilty or No Contest. Although the Judge is not required to accept the State Attorney's agreement, most Judges will honor negotiated plea agreements. At this point, you will have to comply with whatever sentence has been negotiated or is imposed, and your case will be over. It is important to note that there are various alternatives in sentencing that may include Pretrial Diversion, Pretrial Intervention, Drug Court, and Probation. Each of these programs has limitations and requirements. It is extremely important that you seek out an attorney who is familiar with these programs as well as which Judges may or may not look favorably upon these options.

Trial: If you choose to go to trial, your attorney will fight your case either before a Judge or before a Jury of your peers. [Note that you have the right to a Speedy Trial. This means that if you demand Speedy Trial and do not waive your right to it, the State will have to bring you to trial within a certain time period (90 days for a Misdemeanor, or 175 days for a Felony). However, most cases are benefited by waiving the right to a speedy trial to allow an attorney more time to defend the case.] If you are acquitted during Trial by a Judgment of Acquittal or you are found Not Guilty by the Judge or Jury, your case is over and you are free to go. You cannot be retried under Double Jeopardy protections. If, however, you are found guilty, there will be a Sentencing Hearing. This will give you, your attorney, and any other interested persons the opportunity to speak on your behalf; this is the time to present witnesses who will testify as to your character. For the purposes of sentencing, the Judge may order a Pre-Sentence Investigation into your background and circumstances. At the end of the hearing, after the Judge has considered everything put before the court, the Judge will impose a sentence. Hopefully, though, you will be acquitted during trial and will not ever have to worry about a sentencing hearing.

Appeal: A person convicted of a crime has the right to appeal his or her conviction. During the appeal process the Judge may allow your release on bail pending the outcome; however, the Judge will only do this if he or she believes that the appeal has merit and that you will reappear in court. An appeal must be filed within 30 days of sentencing, but should be filed as soon as possible.

Although this explanation doesn’t cover everything you will encounter in the criminal justice system, hopefully it gave you a basic understanding of what you can expect. If you have any questions, do not hesitate to call an attorney to guide you through the process.

Law Updates for November 19, 2010

2010-11-23T10:33:00.000-08:00

Riggins, 35 FLW 2480, error to deny JOA - Charge of operating unregistered vehicle where the sole evidence presented by the state was officer's hearsay testimony that he ran VIN through database on his in-car computer and determined that the car was not registered properly. Testimony did not fall "within absence of record or entry" exception to hearsay where officer did not perform a diligent search that failed to disclose a record that should have been made and preserved. State failed to call witness who could have established a foundation. Officer only relayed the date written on the expired tag and the date of the traffic stop with nothing more.

The Law Offices of Roger P. Foley,P.A.

Law Updates for November 12, 2010

2010-11-19T10:03:00.000-08:00

Quick, 35 FLW 2451, 4th DCA, Jury instructions - Error to deny def's request for jury instruction on the affirmative defense of lack of knowledge that substance he possessed was cocaine where he testified that he did not know the glass pipe in which cocaine residue was found contained cocaine at exact time of his arrest. Error not harmless where lack of knowledge of what the pipe contained was def's sole defense.

M.L. 35 FLW 2456, 3rd DCA, Officer's warrant-less of a seizure of a pipe with residue. Officer observed pipe partially sticking out of a bag on the floor near where juvenile was sleeping. Was not justified under the plain view exception. State failed to present evidence that it was immediately apparent to officer that partially concealed pipe in the bag contained evidence of a crime or illegal paraphernalia, or that the officer, prior to seizure, had probable cause to believe that the pipe was evidence of criminal activity.

Bennett, 35 FLW 2461, 2nd DCA, Trafficking in Cocaine-Constructive Possession - Drugs found in living room and bedroom of cottage, some of it in plain view, where evidence failed to show def had control over the premises and no independent proof that the def had dominion and control over the contraband. Fact that def's drivers license and a letter addressed to him were found on or in cardbox box containing men's clothing and sandwich bag containing drugs insufficient to establish dominion and control over contraband where evidence did not show the cottage was def's residence or suggest how many others have visited or used cottage and did not prove who owned the clothes in the open box.

The Law Offices of Roger P. Foley,P.A.

Law Updates for November 5, 2010

2010-11-16T12:44:00.000-08:00

Urban, 35 FLW 2416, 5th DCA, Youthful Offender - Trial court applied wrong version of statute and is refusing to consider Y.O. for def who was under age 21 on the date of the crimes, but over 21 at the time of the sentencing. Statute at time of the offense applies.

Post-Graham, Manuel, 35 FLW 2417, 2nd DCA, Attempted First Degree Murder with Firearm - Sentence of life in prison without possibility of parole constituted cruel and unusual punishment under the 8th Amendment where def was juvenile when he committed the non-homicide crime at issue.

The Law Offices of Roger P. Foley,P.A.

Depositions and DUI

2010-11-16T12:42:00.000-08:00

Driving Under the Influence charges are generally misdemeanors, which means that the ability to depose witnesses is not guaranteed. In order to be able to take a misdemeanor deposition, Florida Rule of Criminal Procedure 3.220(h) requires that "good cause" be shown to the judge. To determine if there is good cause to order depositions, the judge will consider the consequences to the defendant, the complexity of the issues involved, the complexity of the witness' testimony, and the other opportunities available to the defendant to discover the information sought by deposition. Some jurisdictions make it difficult to take depositions in misdemeanor cases, which means that lawyers have to be creative in finding other means to get the information. But, when a deposition is permitted, it should be taken.

Depositions are extremely important resources in the defense of a criminal case. Often, a simple question asked in a deposition will lead to the discovery of information that the defense attorney and prosecutor did not know existed, such as an additional police report, or witnesses that were on scene but not noted. Depositions show the defense lawyer what to expect the witness to say at a later court date and/or provide fodder to impeach the witness if his story later changes. Depositions also provide valuable insight to possible flaws in the case that may not have been otherwise revealed through the standard discovery documents. Examining these flaws can help a case by either revealing grounds for motions to suppress evidence or motions to dismiss the case based on a violation of a Constitutional right, or by simply showing the prosecutor the weakness of the case and giving a lawyer grounds to argue that the case should be dismissed or broken down into lesser charges.

Unfortunately, many attorneys do not take depositions in misdemeanor cases. It is possible that this is due to their feeling that depositions in misdemeanor cases will not reveal anything new or believing that they are a waste of time. However, depositions are a great tool that is extremely under-utilized in the current legal arena. Attorneys who do not take depositions are missing out on a wealth of information that they may not even realize exists in each case. More often than not, an officer's answers in a DUI deposition will reveal extremely helpful defense issues such as Taylor warnings not being read, simple improper phrasing by an officer that turns a request into a command, invalid consent for searches, and numerous other grounds for suppression that may never have otherwise crossed a lawyer's mind when reviewing a case.

Hiring an attorney who will work hard to get all of the information available is important in successfully defending against criminal charges. Although depositions are not always necessary, a case cannot usually be properly defended without digging deep, going outside of the box, and searching for the answers that aren't necessarily obvious at first glance. Depositions are just one weapon in a defense attorney's arsenal, but they can be one of the deadliest if used properly. Defense strategies are always formed more completely when all of the information available is laid out for the attorney to see. Why wouldn't an attorney use such a great tool that is available at the simple filing of a motion?

Law Updates for October 29, 2010

2010-11-02T13:32:00.000-07:00

R.O., 35 FLW 2320, 3rd DCA, Possession of Cocaine - Trial judge departed from neutral arbiter and became advocate for prosecution when he questioned juvenile regarding his possession of cocaine after defense counsel completed his direct examination of juvenile without questioning juvenile regarding cocaine possession. Remand for new trial before a different judge

Fudge, 35 FLW 2322, 3rd DCA, Vindictiveness - Where state made the plea offer to dispose of all 3 cases with a sentence of twenty five years with mandatory ten on the condition the def would not appeal his conviction in a jury verdict case, and trial court sentenced him to life after def refused to give up right to appeal in jury verdict case. Sentence was vindictive.

The Law Offices of Roger P. Foley,P.A.

Law Updates for October 22, 2010

2010-10-26T12:31:00.000-07:00

L.O., 35 FLW 2253, 4th DCA, Officer dispatched to armed robbery in progress by BOLO described suspects simply as two black males, one wearing a black shirt and shorts, and other wearing a black shirt and red pants. Did not have founded suspicion to detain juvenile, who was wearing long black shorts and a black shirt, and walking alone down the street in a black neighborhood in the middle of the afternoon, outside the perimeter of the crime scene. Juvenile not required to give his name since not lawfully detained. Error to deny JOA for Resisting Arrest without Violence.

Munoz, 35 FLW 2263, 3rd DCA, Self-defense - Trial court did not abuse discretion by prohibiting the defendant from introducing reputation evidence in the community for carrying firearms unless def could first demonstrate that, prior to the shooting, he was aware of victim reputation in the community for possessing firearms.

The Law Offices of Roger P. Foley,P.A.

Law Updates for October 15, 2010

2010-10-21T13:29:00.000-07:00

Austin, 35 FLW 2205. 1st DCA. general behavior patterns of drug trafficking - The discovery of cocaine in rental vehicle was driven by defendant and rented by wife. Error to allow highway trooper to testify that it was a practice of drug dealers to use vehicles rented in someone else's name to transport drugs. Error not harmless

Flores, 35 FLW 2209, 3rd DCA, Six year cap for VOP/VCC does not apply even when new charges are dismissed or nolle prossed - Conviction in the new case need not precede sentencing on the
probation violation as long as the court determining the violation has sufficient evidence that def committed the new offense, 4th DCA language cited in this opinion according to the 3rd DCA is dicta. see Rogers, 972/1017(4th DCA 2008)

The Law Offices of Roger P. Foley,P.A.

Law Updates for October 8, 2010

2010-10-13T13:55:00.000-07:00

McFadden, 35 FLW 556, Fla, Discovery, oral or unrecorded witness statements - State is not required to disclose to def an oral, unrecorded witness statement if that statement does not materially change a prior recorded statement previously provided to the def by the state. Here the oral statement occurred before the def's sister made any recorded case related statements.

K.J.F., 35 FLW 2170, 1st DCA, A juvenile who has committed a qualifying offense does not qualify a as a sex offender where adjudication of delinquency has been withheld.

Bruce, 35 FLW 2185. 5th DCA, Similar Fact Evidence - In sex battery case, trial court did not err in admitting evidence of def prior sexual battery of a different victim. The evidence demonstrated a clear pattern of conduct, and was relevant to corroborate the victim's testimony and rebut def's claim of fabrication.

Jimenez, 35 FLW 2186, 5th DCA, Def is not entitled to be discharged pursuant to 3.191 when the state filed an information within the speedy trial period, but does not notify the def until after the speedy trial period expires. CONFLICT CERTIFIED, cites other case.

The Law Offices of Roger P. Foley,P.A.

Law Updates for October 1, 2010

2010-10-05T12:06:00.000-07:00

Wilson, 35 FLW 2116, 4th DCA, Hearsay exception: Former testimony of unavailable witness - No abuse of discretion in ruling the def failed to establish unavailability of witness under 90.804 so that witness testimony at original trial could be used at the second trial where, although witness was demonstrably unavailable as a witness, def did not subpoena the witness for the second trial and simply told him where to appear and relied on oral promise that the witness would be there, although similar promise had been broken before.

Hicks, 35 FLW 2118, 4th DCA, Discovery violation: Richardson hearing not conducted. Error where it failed to list detective as a witness to a particular statement until the day of trial, error not harmless where the def was alibi and mistaken ID and this detective testimony contradicted the testimony of three alibi witnesses.

The Law Offices of Roger P. Foley,P.A.

Law Updates for September 24, 2010

2010-10-01T14:25:00.000-07:00

J.M.P., 35 FLW 2072, 4th DCA, error to deny juvenile JOA for dismissal of the charge, which was based on juvenile bringing a BB gun to school, where the state failed to present evidence that the BB gun at issue fit within the parameters of the statute which juvenile was charged with violating, 790.115(2).

The Law Offices of Roger P. Foley,P.A.

Law Updates for September 17, 2010

2010-09-24T09:09:00.000-07:00

Harper, 35 FLW 2009, 3rd DCA. Limitation of actions - The initial info was filed within the statute of limitations, however the amended charge added fleeing and eluding filed outside of statue of limitations. The new charged broadened and substantially amended original charge and added a new and distinct charge with different elements. Amended info was not a continuation of the timely filed information, not preserved for appeal court ruled ineffective counsel on the face of the record.

Ingraham, 35 FLW 2021, 4th DCA, Speedy trial recapture period - State is entitled to the recapture period if the re-file is within the natural speedy period even if the client does not receive notice for the re-file as long as the state/clerk attempts to serve, case-by-case factual determination. Here state attempted to notify def of re-file before speedy period expired, clerk's notice of arraignment sent to address in the file which the def originally gave at the time of the arrest and the client had a new address which he did not change.

Cooper, 35 FLW 2029, 4th DCA, Hearsay, business records exception - Trial court did not abuse discretion in allowing Verizon store manger to testify how the wireless company maintains its business records and in admitting phone records into evidence since the store manager had training and experience in maintaining business and billing records, even though he was not individually responsible for maintaining the business and billing records.

Hanks, 35 FLW 2032, 2nd DCA, Error to give the jury principal instruction where the def was only present and no evidence def aided the co-def in aiding and abetting in the beating up of the victim. Error compounded by closing argument that def bursting into victim's RV with other individual "if nothing else" supported conviction as principal.

The Law Offices of Roger P. Foley,P.A.

Law Updates, September 10, 2010

2010-09-16T06:45:00.000-07:00

Alleyne, 35 FLW 1971, 4th DCA, Possession of Marijuna with Intent to Sell - Circumstantial evidence was insufficient where evidence did not exclude reasonable hypotheses of innocence that the marijuana was for personal use.

T.D.W., 35 FLW, 1972, 4th DCA, state failed to establish element of robbery charge because it presented no evidence to negate juvenile's testimony that he had good faith belief that he was the owner of the cell phone which was the object taken during the robbery. Cell phone is type of property that claim-of-right defense applies.

The Law Offices of Roger P. Foley,P.A.

Law Updates for September 4, 2010

2010-09-09T11:07:00.000-07:00

Shenfield, 35 FLW 479, Fla., ex post facto laws - application of 948.06(1) amendment which provides for tolling of a probationary period upon the filing of an affidavit alleging a Violation Of Probation and following issuance of a warrant, a warrant-less arrest, notice to appear to def placed on probation prior to the change in the tolling law is not ex post facto.

Adderly, 35 FLW 1905, 4th DCA, trial court improperly admitted evidence four months after the charged offenses where def gave the police a false name and ran whether the state failed to establish a sufficient nexus between flight and charged offenses, aggravated assault on person 65 years of age or older, cites cases

The Law Offices of Roger P. Foley,P.A.

Law Updates for August 27, 2010

2010-09-02T06:45:00.000-07:00

Martin, 35 FLW 1876, 4th DCA, Alibi witnesses. Trial court abused its discretion in excluding defendant's two alibi witnesses under rule 3.200. The defense was not required to provide state with the alibi witnesses when the state did not comply with 3.200, written demand for notice of the alibi. The defense did not have to comply with 3.200 because they participated in discovery and thus were required to supply the state with defense witnesses under Rule 3.220(d)(1)(A). Trial court was required to conduct a Richardson hearing for this discovery violation, failed to do so. Not harmless beyond a reasonable doubt. New Trial.

Walton, 35 FLW 1895, 2nd DCA, Where evidence established that all three occupants of the vehicle had been drinking and showed signs of impairment, and that vehicle ran a red light, collided with another vehicle, and caused serious injury to the occupant of the other vehicle, it is not necessary for the state to prove the identity of the driver to establish that DUI-SBI had occurred. An interesting corpus delicti discussion.

The Law Offices of Roger P. Foley,P.A.

Law Updates for August 20, 2010

2010-08-27T07:42:00.000-07:00

Ramsammy, 35 FLW 1824, 4th DCA, Murder 2 reversed should have been a Judgement of Acquittal. Interesting opinion.

Diaz, 35 FLW 1835, 4th DCA, trial court committed manifest error by refusing to dismiss potential juror for cause when there was reasonable doubt about impartiality and not rehabilitated for further questioning. Prospective juror's silence when asked if anyone could not do their job in determining whether a crime was committed and whether def committed the crime did not erase reasonable doubt as to impartiality created by her earlier equivocal response that it would be difficult and not sure if could be fair and impartial. New Trial required

Akien, 35 FLW 1836, 4th DCA, could admit a victim, 17 year old, 911 call in a rape case as excited utterance to hearsay after 35-40 minutes still under stress of excitement and not time to reflect yet.

The Law Offices of Roger P. Foley,P.A.

Law Updates for August 13, 2010

2010-08-17T13:16:00.000-07:00

E.J., 35 FLW 1728, 4th DCA, vehicle passenger consent - Passenger did not consent to pat down by spontaneously turning and placing her hands on the top of the car, and spreading her legs, after she exited the vehicle at the request of the officer for an inventory search where the driver was arrested for DUI. Passenger merely acquiesced to police authority. The passenger was 14 year old juvenile and first encounter with the police. Officer did not requested consent and juvenile copied what the arrested driver was doing. Frisk not supported by reasonable suspicion as the police had no information that the def was armed and dangerous.

Wicklow, 35 FLW 1734, 4th DCA, Prosecutorial Misconduct - New trial cumulative effect elicited sympathy for the victim, suggested improper defense tactics, disparaged defense counsel, and improperly bolstered credibility of key witness. The combined effect of this improperly led to a conviction.

Beahan, 35 FLW 1760, 1st DCA, suppress evidence - No reasonable suspicion that the def was impaired at the time of the traffic stop, therefore subsequent search of the vehicle was unlawful. Evidence seized from the vehicle should have been suppressed. Neither fact that def was driving slowly in residential neighborhood, fact he stopped a few times on the side of the street, made improper u-turn, nor fact that took place in area where drug transactions are known to take place is sufficient to support decision def was driving his car impaired.

Kates, 35 FLW 1795, 1st DCA, Resist ofc without violence - Error to admit detailed testimony regarding an uncharged drug transaction to describe events leading up to the charged offenses. Was not necessary for jury's understanding of officers encounter with the defendant.

The Law Offices of Roger P. Foley, P.A.

Law Updates for August 6, 2010

2010-08-13T13:06:00.000-07:00

Nicholas, 35 FLW 1668, 2nd DCA, Trafficking in cocaine,constructive possession - Defendant's statement that he cooked and sold unknown quantity of cocaine at an unknown time and that he had sold large quantities of drugs in the past were not sufficient to establish constructive possession of large quantity of cocaine found in co-conspirator's apartment.

Stone, 35 FLW 1687, 4th DCA, State cannot appeal ruling granting JOA by the court after the jury is sworn but before the verdict is rendered. State's failure to present evidence after being given an opportunity to do so, and not a defect in the indictment or other ground unrelated to factual guilt or innocence, was not an appealable order dismissing an indictment. Appeal would have violated def's double jeopardy rights.

The Law Offices of Roger P. Foley, P.A.

Law Updates for July 30, 2010

2010-08-03T08:27:00.000-07:00

Ferguson, 35 FLW 1612, 2nd DCA, Loitering & Prowling - Officer did not have probable cause to arrest the defendant, although engaged in unusual behavior. Defendant stopped when asked to do so by the officer, provided proof of identity, and where he lived, and explained he was in the area to visit a friend. The friend confirmed identity and said not unusual for him to visit her. Suspicious actions do not effect determination of probable cause. To believe Loitering & Prowling that offense must be complete before any police action occurs.

Pulcini, 35 FLW 1620, 4th DCA Unlawful sexual activity with minors, other crimes, wrongs or acts - Abuse of discretion to admit collateral crime evidence relating to acts that occurred 19 or 20 years before and involved a twelve year old child where collateral acts did not share sufficient points of similarity with charged crime to be admissible. Error not harmless where case boiled down to credibility of the victim's testimony contradicted by two defense witnesses and uncorroborated by any physical evidence, and state highlighted the improperly admitted evidence in closing argument.

Johnson, 35 FLW 1628, 4th DCA, Lewd or Lascivious battery - defendant was 37 and 13 year old girl - Trial court erred by admitting evidence the victim twice attempted to commit suicide after relationship was revealed and defendant was arrested. Error not harmless probative value outweighed by unfair prejudice. New trial.

*******, 35 FLW 1652, 2nd DCA, Pharmacy records - Trial court applied wrong statute when it suppressed prescription records obtained from pharmacy without subpoena or consent of patient. 456.057 applies to health care practitioners and excludes pharmacies and pharmacists. Standing error to fail to address state's claim that defendant did not have an expectation of privacy in prescription records as they were fake. On remand court should make a ruling of reasonable expectation of privacy in the prescriptions.

T.T.N, 35 flw 1653, 2nd DCA, Police stop outside of his jurisdiction - Municipal officers initiated a traffic stop, driver fled on foot, remaining passengers drove away in the vehicle. Fleeing driver apprehended and arrested, officer did not have jurisdiction to initiate an investigation at the vehicle's registered address in a different city. No evidence that juvenile was involved or about to be involved in crime at the time the officers arrived at the address of the vehicle's registered owner. Juvenile's attempt to run away was not sufficient to justify an investigatory stop. Trial court erred in stating that even if stop was unlawful, tube of cocaine dropped when officer approached was voluntarily abandoned. Officer's testimony showed that child submitted to the officer's authority after he was ordered to show his hands, and tube fell from juvenile's body.

The Law Offices of Roger P. Foley, P.A.

Law Updates for July 23, 2010

2010-07-30T09:08:00.000-07:00

Ray, 35 FLW 1552, 4th DCA, vehicle stop - No reasonable suspicion that def had committed a crime at the time of the traffic stop. Officer monitoring the neighborhood based on recent complaints of drug dealing observed def drive up and stop in the middle of the road and engage in a hand-to-hand exchange with unknown adult male. Traffic violation that occurred after the emergency lights were activated not a basis for finding the stop was lawful. Evidence subsequent to the stop suppressed.

Williams, 35 FLW 1554, 4th DCA, Severance - Error to fail to sever GT of a firearm charge from the manslaughter charge that occurred the next day based on an alleged accidental shooting of his friend. Collateral crime evidence, presumptively harmful and prejudicial, outweighs the relevancy of the jury hearing the GT charge.

Ward, 35 FLW 1156, 4th DCA, Error to give the jury instruction regarding inference to be drawn from possession of recently stolen property, where victim could not positively ID the def as one of the two assailants at the scene of the crime, and where stolen property was never found in the def's possession.

The Law Offices of Roger P. Foley, P.A.

Law Updates for July 16, 2010

2010-07-23T07:33:00.000-07:00

Koch, 35 FLW 1483, 2nd DCA, Fleeing and eluding a police officer - Error to fail to instruct jury on permissive LIO of refusal to obey officer's lawful order on ground that 316.072(3)(obedience to police and fire department officials) that the statute only applied to emergency situations. Trial court was requested to instruct the jury on offense where elements were alleged in information and evidence of those elements were presented at trial.

Kiss, 35 FLW 1506, 4th DCA, DSP/GT - Trial court committed fundamental error by failing to instruct the jury, pursuant to 812.025, that it could not return a guilty verdict on both charges of grand theft and dealing with stolen property when charges arise in connection with one scheme or course of conduct. Trial court did not properly cure such error by adjudicating the def guilty for DSP and discharge to the GT. Remand for new trial rather than reversing lesser offense conviction and affirming greater. Conflict certified.

Tamulonis, 35 FLW 1535, 2nd DCA, Officers not required to procure a search warrant or subpoena prior to obtaining controlled substance records from pharmacies. Error to grant motion to suppress patient profiles and prescriptions obtained from pharmacies without a subpoena or warrant. Statute, 893.07(4) requiring pharmacists to maintain controlled substance records, including prescription records, and to make records available for inspection and copying by police does not violate constitutional privacy provisions under the Florida constitution, Carter 23 So. 3rd 798(1 DCA 2009).

The Law Offices of Roger P. Foley, P.A.

Law Updates for July 9, 2010

2010-07-14T08:58:00.000-07:00

Caldwell, 35 FLW 425, Fla. Supreme Court, Miranda. An officer's reading of Miranda during a otherwise consensual search does not always transfer the consensual encounter into an investigatory stop. Reading of Miranda may add to the coercive nature of the encounter sometimes and must be decided on a case by case basis. In this case does not convert the consensual encounter into a seizure. Def not seized before voluntarily entered a police vehicle; confession not a product of an illegal detention.

Gomez, 35 FLW 432, Fla. Supreme Court, Forefeiture, Probable Cause. Seizing property initially does not require that the owner knew, or should have known after reasonable inquiry, that property was employed or likely to be employed in criminal activity.

Tindall, 35 FLW 1449, 4th DCA, Error to adjudicate def guilty of two counts of aggravated kidnapping where charges were based on movement of child victims of sexual battery from front door of the house to a bedroom where the sexual battery occurred and victims were held in the room for as the long as the crime occurred and then released.

Hill, 35 FLW 1455, 3rd DCA, Consent-Investigatory stop. Where one ofc positioned his vehicle directly in front of the def and pointed the vehicle's spotlight on the def, another ofc approached def on foot in a manner that indicated a sense of urgency, and immediately thereafter two other officers joined at the scene. Investigatory stop and not a consensual encounter, no reasonable suspicion of criminal activity, def's consent to search during the stop while the ofc retained his license to run a warrants check was not voluntary.

Lowe, 35 FLW 1463, 5th DCA, Lewd and Lascivious exhibition. Def's actions of placing a dildo in his mouth in the presence of a seven year old child does not constitute sexual activity within the statutory definition. Definition of sexual activity in the statute does not include the simulation of oral sex with an object. Error to deny the motion to dismiss the information.

Downs, 35 FLW 1465, 5th DCA, Sexual Battery on a child, Uncharged crimes. Def was charged with digital penetration of a child. Error to admit evidence of later incidents in which the def came into the bathroom while the victim showered and touched her inappropriately. Not admissible that was inexplicably intertwined with charged crime when two years after the charged crime. Not admissible as separate crime or acts of child molestation where the def had not been given notice of evidence the State intended to offer.

The Law Offices of Roger P. Foley, P.A.

Law Update for July 2, 2010

2010-07-09T13:11:00.000-07:00

Gonzalez and Garcia, 35 FLW 1402, 2nd DCA, Search warrant - Facts as alleged in pc affidavit, which reference uncorroborated tip that the def's were allegedly growing marijuana and selling cocaine, failed to demonstrate reasonable probability that contraband would be found in the residence at the time the warrant was issued. Info contained in the tip was received more than 3 months before warrant issued was stale. Def possession of one gram of cocaine on her person during a traffic stop did not suggest a fair probability that the def was selling cocaine from her home. Good faith exception to warrant requirement does not apply where objectively reasonable officer would have known affidavit was insufficient to establish probable cause.

The Law Offices of Roger P. Foley, P.A.

Roger P. Foley Named Legal Elite by Florida Trend Magazine

2010-07-09T13:03:00.000-07:00

FOR IMMEDIATE RELEASE:

Roger P. Foley Named Legal Elite by Florida Trend Magazine

Fort Lauderdale, Florida - July 8, 2010 – The Law Offices of Roger P. Foley, P.A. is pleased to announce that Mr. Roger P. Foley has been named to Florida Trend magazine's 2010 Legal Elite list which recognizes the top tier of attorneys practicing in Florida as chosen by their colleagues.

Balloting for this year’s list began in October 2009, when Florida Trend invited all in-state members of The Florida Bar to participate. Announcements in The Florida Bar News publicized the ballot deadline and voting guidelines. Lawyers were asked to name attorneys whom they hold in the highest regard or would recommend to others.

The ballots were processed, checked and tabulated by Bradenton-based Outsource America and Suncoast Opinion Surveys in St. Petersburg. Each lawyer was given a score based on the number of votes received: one point for votes from within their firm or three points for votes from outside their firm. Only lawyers who are currently licensed and practicing in Florida were eligible for selection.

The list of top vote recipients was further examined using membership status and histories provided by The Florida Bar. A panel of previous Legal Elite winners, representing different practice areas in cities across the state, reviewed the selection process and the list of finalists.

The Legal Elite Award is given to less than 2% of the active, practicing lawyers in the State of Florida.

Contact:
Arthur James
arthur@rpfoley.com
Law Offices of Roger P. Foley, P.A.
524 South Andrews Avenue, Suite 200N
Fort Lauderdale, Florida 33301
Ph 954-467-2946

###

Law Updates for June 25, 2010

2010-06-29T09:31:00.000-07:00

Yaqubie, 35 FLW 1342, 3rd DCA, Immunity/Stand your ground law. Error to treat def's immunity claim as an affirmative defense and to deny motion to dismiss because material facts were at issue. Statute is true immunity provision which requires the trial court to adjudicate disputed fact issues rather than passing them on to the jury. Remand for the court to determine if def's immunity claim is supported by the preponderance of the evidence.
N.B. There is conflict in this state on this issue, and the 4th does not follow the 3rd DCA opinion. This isssue is on appeal right now to the Florida Supreme Court in Dennis v. State.

Link to the ACLU Summary of the 2009 Supreme Court Term

The Law Offices of Roger P. Foley, P.A.

Law Updates for June 18, 2010

2010-06-25T08:27:00.000-07:00

Vice, 35 FLW 1273, 1st DCA. Aggravated Child Abuse - error to admit testimony of def's former husband and former mother-in-law regarding their observations of the def shaking a different child 6 years earlier without injuring the child, where the evidence was not relevant to any material fact at issue in which this infant sustained injuries formerly said to characterize Shaken Baby Syndrome. Paucity of evidence; reasonable possibility that this evidence contributed to the conviction.

T.M., 35 FLW 1290, 4TH DCA, Pat down of juvenile during an investigatory stop was unwarranted and illegal. No facts or circumstances to warrant the pat down for officer who safety-stopped juvenile in high crime area at 11 a.m. based on suspicion they were unlawfully missing school or were about to commit a burglary or drug sale. Officer admitted the answers they gave dispelled any concern related to crimes. Ofc did not observe any bulges that resembled a weapon near the waistline where juvenile was moving his hands. Juv did not attempt to grab anything from his pockets and ofc had no info linking to juvenile criminal activity involving a weapon.

Dixon, 35 FLW 1298, 4th DCA, Warrant-less entry into a home. Police entered the apt without consent and without exigent circumstances to justify the entry. Failure to protest the entry did not constitute consent to enter. Ofc had duty to investigate a 911 call until he was reasonably satisfied that no urgency existed or once urgent situation was no longer urgent. Exigency dissipated once ofc received the official description of robbery from the victim, who was out of harm's way and thereafter the conversation occurred at the apartment door.

Shelden, 35 FLW 1316, 2nd DCA, Corpus delicti - Trial court erred in admitting def's statement to police where the state failed to prove C.D. State's evidence showed a firearm was discharged inside def's home. No evidence apart from the def's statements that the shots were fired wantonly and maliciously.

The Law Offices of Roger P. Foley, P.A.

Law Updates for June 11, 2010

2010-06-16T09:07:00.000-07:00

Ferrey. 35 FLW 1242, 3rd DCA. Hearsay - Court was correct to order a new trial where the victim and the detective referred to the victim's neighbor, a non-testifying witness. Statements of the non-testifying witness inferred that the witness had observed the defendant. The defendant's right to confront the witness was violated. The error was pervasive court; did not abuse discretion in ordering a new trial.

McNeal, 35 FLW 1261, 2nd DCA, Fact that the dog had been trained and certified, "standing" alone is insufficient to give officers probable cause to search based on dog's alert. Trial court must consider other factors, including dog's past performance in the field.

The Law Offices of Roger P. Foley, P.A.

Law Updates for June 4, 2010

2010-06-09T12:13:00.000-07:00

Blair, 35 FLW 311, Fla., Error for the court to order pretrial detention based on def's failure to appear without finding that the failure to appear was willful and without determining whether conditions of release were appropriate as delineated in 907.041.

Miller, 35 FLW 1177, 4th DCA, Jury instructions - Trial court erred in refusing to give requested instruction on affirmative defense of lack of knowledge that substance he possessed was cocaine where def presented some evidence in support of defense.

Gestewitz, 35 FLW 177, 4th DCA, Police unlawfully detained the def outside of a bar after an argument with a bartender for the purpose of issuing a written trespass warning. Officer had no lawful purpose to detain the defendant because at the time he was detained there was no reasonable suspicion that the def committed the crime of trespass and the warning is a prerequisite of the crime. Def should have been given a verbal warning and allowed to leave with a friend.

Gonzalez-Ramos, 35 FLW 1203, 5th DCA, Trial court lacked jurisdiction to find the def in violation of probation where affidavit was filed and warrant issued after the term of probation expired. Probationary term was NOT tolled for the period of time between the issuance of the warrant and hearing on two prior violations where trial court did not extend the term of probation each time he violated, but simply continued(reinstated) the probation.

The Law Offices of Roger P. Foley, P.A.

Law Updates for May 14, 2010

2010-05-21T08:50:00.000-07:00

J.M., 35 FLW 1103, 3RD DCA, Juveniles - Statement of juvenile in which he revealed his date of birth that was relevant to the case was properly admitted even if given pre-Miranda. Basic biographical information, and Miranda does not apply to a question to obtain basic booking information

Harris, 35 FLW 1007, 1st DCA, Other crimes evidence. Prosecution witness' non-responsive statement during cross that he changed his earlier statement to wit the def was not involved in the fraud as there was a warrant out for the def for a different offense, and witness did not believe the def's testimony in the matter was improper and irrelevant - harmful error.

The Law Offices of Roger P. Foley, P.A.

Law Updates for April 30, 2010

2010-05-05T12:12:00.000-07:00

S.D.T. 35 FLW 879, 4th DCA, BOLO - Contents of BOLO Dispatch received by arresting officer were non-hearsay and were admissible to establish an element of the crime of resisting arrest without violence. BOLO not offered to prove the truth of its contents, but to establish the officer was engaged in the lawful execution of a legal duty when he commanded the juvenile to stop and the juvenile fled.

E.L.F., 35 FLW 883, 4th DCA, Self-defense - Error to deny JOA where juvenile presented evidence that he became involved in altercation as Good Samaritan when he attempted to stop the male victim from striking a woman, and that he acted in self-defense after victim began swinging at him and state's testimony was legally insufficient to rebut the testimony that the juvenile was acting in self-defense.

WHITFIELD, 35 FLW 915, 5th DCA, Automobile stop - Prolonged detention in writing citation after traffic stop for speeding - Error to deny motion to suppress drugs which were discovered when dog alerted on vehicle, where the officer detained the defendant for almost 30 minutes before issuing the citation, and dog search did not begin until after the citation had been issued and the purpose of the traffic stop was completed. Absent an articulable suspicion of criminal activity, the time the officer takes to issue the citation should last no longer than is necessary to make any required license or registration checks and write the citation. Completed traffic stop cannot be extended to conduct a dog sniff search, even if the delay is de minimis. WELL WRITTEN OPINION

Riles, 35 FLW 930, 1st DCA, Robbery - Trial judge should have given request for a special instruction for the "afterthought" defense. Force was done as to another offense and not the theft offense which was completed.

Nicholson, 35 FLW 931, 1st DCA, Trafficking in Hydrocodone, Constructive possession - State failed to prove, through circumstantial evidence or otherwise, that def knew the hydrocodone was hidden in a leather change purse on the living room coffee table next to the couch where defendant, his brother, and their girlfriends were sitting, even though leather change purse was in plain view. No record of evidence that the incriminating nature of the packaged contraband was immediately apparent. Requirement of plain view analysis.

The Law Offices of Roger P. Foley, P.A.

Law Updates for April 23, 2010

2010-04-26T09:44:00.000-07:00

S.B., 25 FLW 841, 4th DCA, Juv, resisting without violence, fleeing - Error to deny JOA where there was no command by the officer to stop at the time. The juveniles began to flee upon seeing officers and no evidence that juveniles knew of officers intent to detain them. Flight alone is not enough to sustain the charge, Clark 976/1225(4th DCA 2008) and Parker, 18 So, 3d 555(1st DCA 2008)

Bannister V. Lamberti, 35 FLW 873, 4th DCA, pretrial detention - Error to enter order of pretrial detention where the def failed to appear at the arraignment for GT without finding that no further conditions of release would assure the def's presence at trial, although the trial court did not make express finding that the failure to appear was willful. No such finding was necessary where the def did not place her conduct in failing to appear at issue.

The Law Offices of Roger P. Foley, P.A.

Law Updates for April 9, 2010

2010-04-19T08:52:00.000-07:00

Hankerson, 35 FLW 742, 4th DCA, Police observed the def exchange some object for paper currency at residence where ofc believed people might be selling drugs, and drive away pocketing what he received from others. Officers pulled the def over and ultimately searched the def's person. Def began removing his shoes before ofc could order him to do so and bag of what appeared to be cocaine lay inside one shoe. Police did not have pc to search the def without consent where the ofc did not see what was exchanged for money, did not see what was in his shoe, and did not see the def involved in more than one transaction. see Coney 822 So. 2d 1012(2nd DCA 2002)

Farias, 35 FLW 742, 4th DCA, Lewd and Lascivious molestation - Error to admit photographs of child's physical examination because photo showing no injuries had no relevance to issue of whether def molested the victim. Photo had minimal probative value and its potential for offending jury's sensibilities and evoking sympathy for the victim was substantial, not harmless, not said beyond a reasonable doubt had improperly admitted photo did not effect jury's verdict.

Hunter, 35 FLW 744, 4th DCA, Error to deny motion to suppress cocaine seizure as a result of a stop and seizure. Totality of the circumstances did not amount to reasonable suspicion that there was a Loitering and Prowling. Officer had no more than a bare suspicion of any incipient criminal conduct when they approached the def and co-def sitting equal distance between residences and a closed church and rummaging in their pockets. Mere presence close to closed business in late evening not enough to show incipient criminal conduct. Error to deny JOA as to charge of resisting arrest without violence where ofcs, with no reasonable suspicion to stop the def, were not engaged in lawful execution of a legal duty.

The Law Offices of Roger P. Foley, P.A.

Law Updates for April 2, 2010

2010-04-13T09:11:00.000-07:00

Kurecka et al., 35 FLW 666, 4th DCA, Florida’s implied consent statue does not require police officers to advise persons arrested for DUI that the right to counsel does not attach to their decision to submit to the breath test. The statue only requires that the person be told that the failure to submit will result in suspension of driving privileges, and refusal to submit can be admitted at trial. Refusal to submit based on def’s misconception is not basis for excluding refusal from evidence where confusion was not the fault of law enforcement on any action of the police.

Harrison, 35 FLW 678, 1st DCA, Lewd and Lascivious, expert - Where the trial counsel defended the case by challenging the reliability of the 11 year child’s memory of events, trial court erred in excluding expert testimony of the formation of children’s memories. Abuse of discretion to prevent the expert from testifying because of failure to list expert as a witness until 13 days before trial as state made no objection and court failed to conduct a hearing.

Bellamy, 35 FLW 680, 1st DCA, Peremptory challenges - Trial court erred in failing to determine whether state’s purported race-neutral reasons for striking jurors were genuine or a pretext.

Slack, 35 FLW 690, 1st DCA, 316.1935(1) is a lesser included offense of 316.1935(2) although they are both third-degree felonies: fleeing or attempting to elude a law enforcement officer. No evidence that the vehicle driven by LEO had contained agency insignia and other jurisdictional markings, court should have directed a verdict to the lesser included offense.

The Law Offices of Roger P. Foley, P.A.

Law Updates for March 26, 2010

2010-03-30T13:56:00.000-07:00

Farinacci, 35 FLW 608, 4th DCA, Hearsay: Where def was charged with Lewd and Lascivious fondling the clothed buttocks of a child under 12, it was harmful error to permit the detective to testify and demonstrate the victim's description of them manner in which the def touched him.

M.D., 35 FLW 610, 4th DCA, Constructive possession: Evidence was insufficient to establish that juvenile had dominion and control of marijuana found near him at the time of the arrest. Juvenile's statement that he was in the utility room "to smoke" was not enough to prove juv constructively possessed marijuana. Juv theory was he was smoking tobacco, not marijuana. This was reasonable, and circumstantial evidence was not inconsistent with a reasonable hypotheses of innocence.

Good, 35 FLW 611. 4th DCA, Court can withhold adjudication for two pending felonies pled at the same time. Two concurrent felony pleas, even though one incident was before the other, is not considered a prior case.

Mead, 35 FLW 617, 4th DCA, Intercepted communications: Law enforcement officer's direction to the victim to record any future conversations with the suspect was sufficient even if the ofc is not present. Brings it under the exception of 934.03(2)(c). Language of statute does not require active police involvement or presence during the recording session.

Hernandez, 35 FLW 618, 4th DCA, It was error to permit state to call the def's wife to the stand as a witness for the purpose of impeaching her with the transcript of a taped phone which was inadmissible hearsay. Tape was not admissible as a past recollection recorded where witness was unable or unwilling to attest to the accuracy of the tape recorded conversation.

D.B.P. 35 FLW 629, 5th DCA, search and seizure/ stop and frisk: Juvenile's act of putting his hands in his pocket during a stop for a non-criminal infraction in a high crime area was not sufficient to provide reasonable suspicion to justify the pat down.

The Law Offices of Roger P. Foley, P.A.

Law Updates for March 19, 2010

2010-03-24T13:38:00.000-07:00

Day, Jr., 35 FLW 563, 4th DCA, 3-19-10, Confession case - Totality of the circumstances, where interviewer made promises of leniency, casual nexus between the def's statements to prove that the statement was product of coercive police conduct. Many offers of help and implying authority to influence the process. Improper "fruits of hope": unrealistic hope that the investigator interviewing him would truly help the defendant. Confession thrown out. amazing facts

Bleiweis, 35 FLW 586, 4th DCA, error to deny bail without permitting argument of counsel on issue of whether the proof is evident and the presumption is great. Writ of habeus corpus granted and assigned to a different judge.

The Law Offices of Roger P. Foley, P.A.

Law Updates for March 5, 2010

2010-03-10T08:10:00.000-08:00

F.E.H., Jr., 35 FLW 451, 4th DCA, unlawful stop - juvenile detained - reasonable person not feel free to leave. After the juvenile walked away from the ofc's presence the detective called him back and the juvenile returned because he was a policeman, "I had to come back." Juvenile's response was more of a surrender to authority than act of free will. Convergence of other police officers conducting a sweep involving others plus ofcs command was an investigate stop-no reasonable suspicion here juvenile was standing in an open parking lot on a street corner and people often cut the corner and walked through this unenclosed lot. No evidence a sign was posted and juvenile had already left the lot when he was stopped.

DeLa Osa, 35 FLW 455, State's writ of cert. denied where the state tried to disqualify his defense attorney, a former statewide prosecutor, who was formerly in charge of the unit where the charges had been filed four years after her departure from that office.

Benemerito, 35 FLW 456, 4th DCA, no reasonable suspicion when ofc, who had been patrolling a parking lot due to numerous complaints of drug transactions at the store, could not stop the def's car where the def's vehicle was parked at the entrance to the store. A truck entering the parking lot parked a few spaces away from the def's vehicle, truck driver walked to the def's vehicle and entered the backseat, and the truck driver leaned forward and extended his hand before exiting the vehicle and driving off in the truck. The ofc did not see drugs or money, or see a hand to hand transaction.

The Law Offices of Roger P. Foley, P.A.

Law Updates for February 19, 2010

2010-03-01T12:58:00.000-08:00

Loncar, 35 FLW 324, 2nd DCA, Modification of probation without a violation is improper and enhancing the def's probation condition is improper. Requirement that the Def could not live within 10 miles of the victim prevented him from living with his father as he had earlier, more restrictive than prior condition. Remand to reinstate the prior probation order.

Green, 35 FLW 325, 2nd DCA, Improper comment on right to remain silent. Case-elicit from the
police that the def declined to give a statement unlike his co-def's. Argued in closing, harmful error, def did not open the door to these statements by narrowly tailored questions to the police in order to try and show they set up the co-def's against each other.

Barrow, 35 FLW 328, 4th DCA, Judge implied to jury who requested transcripts of witnesses 10 minutes after deliberations started without advising them of the possibility of read backs, ignoring the request of the state and defense, certified conflict with 3rd DCA, Hazuri, 34 FLW 2590, 12-16-09.

Douglas, 35 FLW 354, 3rd DCA, Double jeopardy. No manifest necessity with the court declaring a mistrial, def no waiver and not discuss alternatives enough where there def not brought to court on the 2nd day of jury trial as there was H1N1 quarantine at the jail in the def's unit and case would have to be delayed for a week.

The Law Offices of Roger P. Foley, P.A.

Law Updates for February 5, 2010

2010-02-10T13:49:00.000-08:00

Cox, 35 FLW 241, 4th DCA, New trial where state affirmatively engaged in conduct that was the functional equivalent of interrogation. Post invoking his rights and telling det he did not want to talk to him out of fear the conversation was being recorded, det assured him no recording was being performed, creating a false illusion of privacy in the interrogation room, utilized a co-def who was given leniency in exchange for baiting the defendant to utter incriminating statements. Co-def was acting as an agent of state violates Massiah, error not harmless as statements to the co-def was the heart of the state's case as there was no physical evidence presented.

Cooper, 35 FLW 246, 4th DCA. Detective's question to the def after arrest, as he was asked would he like to give a post-Miranda statement, was likely to elicit an incriminating response and def admission before the Miranda warning should have been suppressed.

Harvey, 35 FLW 262, 5th DCA, Independent act instruction. Should have been given here where it was supported by the evidence that def intended to participate in the sale of marijuana and robbery and murder that occurred in connection with the attempted drug purchase were independent act of the co-defendants.

Browder, 35 FLW 271, 2nd DCA, Motion to dismiss should have been granted by the lower court, no genuine issue of material fact, and state failed to meet its burden to present any disputed or additional facts that would bring the knife out of the definition of a "common pocketknife."

Nawaz, 35 FLW 272, 1st DCA, Consideration of def's national origin in sentencing was fundamental error-case of first impression-remand for re sentencing in front of a different judge.

The Law Offices of Roger P. Foley, P.A.

Law Updates for December 25, 2009

2009-12-31T10:05:00.000-08:00

Regalado, 34 FLW 1571, 4th DCA, Because it is legal to carry a concealed weapon in Florida if one has a permit to do so, a Terry stop was not allowed as there was no allegation of criminal conduct. An anonymous tip that "some guy over there was flashing his gun to a couple of friends" was not sufficient to justify a Terry stop.

Hazuri, 34 FLW 1590. 3rd DCA, Read back of testimony, in response to jury's request for trial transcripts. Trial court did not abuse discretion in advising jury it could not be given copies of the transcripts and must, therefore, rely on their own recollection of the testimony, and declining to advise jury it could receive a "read back." Trial court had no duty to inform jurors that a read back may be available on request. Judge's answer was fair and accurate, see dissent Avila, 781 So. 2d 413, 415, 4th DCA 2001

Peterson, 34 FLW 2607, 2nd DCA, Where the def's theory of the defense was that he had abandoned the stolen property before he used force to escape the scene and the sales clerk was the only witness who contradicted the defense's theory that he transferred the stolen items from beneath his clothing to a shopping basket before shoving his way out of the store, the trial court abused discretion by excluding evidence that the sales clerk no longer worked at the store because she was suspected of stealing and the clerk wished to regain her job, and limiting to defense to only that the clerk no longer worked at the store. Trial court abused its discretion in refusing a special jury instruction that jury was required to find the def guilty of robbery if the evidence established that the property was abandoned prior to the use of force, and standard instruction did not explain the theory of the defense, and it was a correct statement of the law and was not misleading.

The Law Offices of Roger P. Foley, P.A.

Law Updates for December 4, 2009

2009-12-11T07:18:00.000-08:00

B.O., 34 FLW 2442, 4th DCA, Juveniles. Where charging document alleged only that the juvenile committed two counts of grand theft of a firearm, but did not allege in that in stealing the firearms juvenile possessed or used a firearm, it was error to increase the standard penalty to 15 days of secured detention pursuant to 790.22(9). Statute is not applicable where petition neither cited the statute nor alleged that, in committing the theft, the juvenile used or possessed a firearm.

Carter, 34 FLW 2444, pg. 2446-7, 4th DCA, Language about suppressing photo lineups, found for the state, may want to save in files.

Carter, 34 FLW 2466, search and seizure - prescription records. Error to grant motion to suppress records obtained from a pharmacy by an investigating law enforcement officer. 893.07(4) requires pharmacies to make controlled substance records available to law enforcement and does not require the pharmacies to notify the patient or withhold such records until a warrant is presented. Privacy Provision of Florida Constitution does not support suppression of records in this case. Regulation and control of medical records is a vital governmental interest and substantially outweighs privacy interests.

The Law Offices of Roger P. Foley, P.A.

Law Updates for November 27, 2009

2009-12-03T06:44:00.000-08:00

Abbey, 34 FLW 2372, 4th DCA, Probable cause for issuance of search warrant for "black box" from def's vehicle. Affidavit showing excessive speed in residential area sufficient to evince a "reckless disregard for human life or the safety of persons exposed to speed" as required to establish vehicular homicide. Error to grant motion to suppress

Pierre, 34 FLW 2374, 4th DCA, First degree felony murder. Statement of defendant, "I'm not saying anymore," followed by over a minute silence, and subsequent questioning violated Def's Miranda rights. Accusatory statement, "You're Turtle," made by detective upon reentering the room amounted to questioning where detective had already told the defendant he was taking def's picture to show witnesses who could id participants in robbery-murder and had already asked the def at the beginning of the interview if he was Turtle. Fact that this detective did not know def had invoked his right to silence does not avoid Miranda. Error to deny to suppress statement.

Bowers, 34 FLW 2384, 2nd DCA, Fellow officer rule. The testimony of ofc who investigated the DUI regarding what the ofc who stopped him told him about the def's driving was hearsay and not admissible to prove that the stopping officer witnessed the def violate a traffic law. The fact that DUI investigator was called to the scene after the stop was completed did not make him a fellow officer for purposes of determining if there was probably cause to support the traffic stop. Conflict with Ferrer, 785 So. 2d 709(4th DCA 2001)

The Law Offices of Roger P. Foley, P.A.

Law Updates for November 20, 2009

2009-11-30T09:15:00.000-08:00

Dawson, 34 FLW 2294, 4th DCA, Richardson violation. Trial court erred in failing to conduct a complete hearing and failing to consider lesser sanctions, such as a continuance or a mistrial, before excluding defense rebuttal witness, where testimony was relevant and trial court found state was prejudiced because it was not given an opportunity to depose the witness and subpoena rebuttal witness or possibility of taking depo of defense witness before testifying. Application of three part test insufficient for a discovery violation as the court must consider a fourth factor and explore whether another reasonable alternative can be employed to overcome possible prejudice. Error not harmless in reversing first degree murder conviction where reasonable possibility that exclusion of witness contributed to the conviction.

Thompson, 34 FLW 2299, 4th DCA. Credit for time served - probation revocation. Def originally sentenced to concurrent terms for 2 counts, and trial court imposed consecutive sentences for those two counts after VOP. Def was entitled to credit for time served against both of the consecutive sentences. (see Rabedeau, 2 3rd 191(Fl. 2009))

L.C., 34 FLW 2306, 3rd DCA, search and seizure. It was unreasonable for police officer to perform a weapons search without having performed a pat-down of a 15 year old truant before putting her in the back of the police car to execute the ofc's statutory obligation to transport her to school where the officer had no basis to suspect the student of possessing any weapons. Absence of reasonable suspicion not justified in search just because ofc felt unsafe about his safety, nor could he do based on blanket department policy.

Ortiz, 34 FLW 2311, 5th DCA, (En banc) Reversed lower panel opinion now in favor the trial judge's finding of exigent circumstances (medical emergency exception) for warrant less search of home - for the state, distinguishes Riggs, 918 So. 2d 274(Fl. 2005).

Acevedo, 34 FLW 2322, 5th DCA, Miranda warning given to def was defective where def was told that he had a right to counsel but was not told he had a right to counsel both before being interrogated and during interrogation. Not harmless. Reasonable possibility it affected the verdict - State v. Powell, 998 So 2d 531(Fl. 2008) cert granted 129 S. Ct 2827(6-22-09)

Florida v. Simmons, 34 FLW 2352, 1st DCA, Trial court had the authority to dismiss the current charges against the def as a remedy for the state's refusal to comply with a settlement agreement under which it was agreed by the state, the def, and the victim of the crimes that def would be admitted to PTI and charge would be dismissed and victim would be paid restitution. (victim refused to sign the victim consent form after he was compensated)

Bailey, 34 FLW 2359, 1st DCA, Audio - recorded statement - Def statement to interrogating officers, not during Miranda warnings but during the statement, "Man, I don't rally want to talk about that", was not an unequivocal revocation of the prior waiver of the right to remain silent. Trial court id not err in admitting the audio-recorded statement

The Law Offices of Roger P. Foley, P.A.

Law Updates for November 6, 2009

2009-11-11T13:01:00.000-08:00

Santiago, 34 FLW 2206, 4th DCA - Court erred when it failed to permit the def to reopen his case so that false testimony presented by the state to demean the credentials of defense expert could be countered and corrected prior to the jury beginning its deliberations.

Brown, 34 FLW 2209, 4th DCA - Trial court used the 1.5 multiplier for presence of child in domestic case even when information failed to set forth the facts or statutory authority for such sentence enhancement.

Dunlap, 34 FLW 2215, 4th DCA - No error to deny mistrial based solely on one comment made by prosecutor during opening statement: discussion of jury's obligation to determine credibility of witnesses testimony, and single use of word "truth" in that context did not suggest that the jurors determination of who was telling the truth should be the sole basis of the jury's verdict.

The Law Offices of Roger P. Foley, P.A.

Law Updates for October 30, 2009

2009-11-04T11:12:00.000-08:00

Ransone, 34 FLW 2170, 4th DCA, Credit for time served in foreign jail. Def who was arrested in Miami Dade for numerous charges was not entitled to credit for time served in Miami from date of his arrest for an unrelated Broward VCC warrant where sentence received in Broward was consecutive and not concurrent with sentences imposed in Dade. Held on multiple offenses only entitled to credit for time served from the date of arrest in foreign county where concurrent sentences are imposed or foreign county warrant is the sole basis for the incarceration in the other county jail.

Arias, 34 FLW 2175, 3rd DCA, Self-defense Trial court erred in excluding evidence from the M.E. that victim had alcohol and cocaine in his blood at the time of the shooting. State opened the door to this evidence by attacking on cross-exam def's lay observation of victim's intoxication on theory that the def was not a qualified toxicologist, where def took the stand and testified that victim was behaving erratically, threatened to kill him, and appeared to be intoxicated and under influence of cocaine. Toxicology results were admissible under relevant evidence and not under theory of admissibility of character evidence. New Trial.

The Law Offices of Roger P. Foley, P.A.

Law Updates for October 23, 2009

2009-10-30T14:13:00.000-07:00

Conner, 34 FLW 2089, 2nd DCA, kidnapping - Def's act of attacking the 13 year old victim, knocking her to the ground, and choking her for a few seconds not kidnapping but false imprisonment. Def's actions had no significance independent of the attempted murder of the victim and amounted to a momentary restraint.

Parker, 34 FLW 2108, 3rd DCA, Possession of cocaine - collateral crimes - prior drug transaction. Error to permit state to introduce evidence that C.I. had purchased cocaine and marijuana from def on two prior occasions where prior transactions were totally unrelated to charged offenses. Nature of those differed from those of charged crimes. Not relevant to any material issue and priors were highly prejudicial.

Shootes, 34 FLW 2157, 1st DCA, New trial required where aggravated assault arose out of shooting of police officer, allegedly in self-defense, and many officers were in the court in official uniform at different stages. Created an unacceptable risk that their presence could effect the jury's deliberations. Def's counsel raised the matter and objected timely. Inherent prejudice to the def's fair trial and fundamental error and violation of due process. New trial

VFD, 34 FLW 2161, 1st DCA. Expungement of records - Trial court abused discretion denying without a hearing based on facts and circumstances of petitioner's case, including whether a gun was used during incident that led to petitioner's arrest. Remand for meaningful hearing.

The Law Offices of Roger P. Foley, P.A.

Law Updates for October 16, 2009

2009-10-20T09:00:00.000-07:00

Aldin, 34 FLW 2046, 3rd DCA, search and seizure/consent - Where the def signed a form consenting to a search of the apt, but crossed out a part where it included a search of his vehicle. Search of def vehicle after towed to the police station was illegal. No valid consent and no search warrant. Not valid as a vehicle search incident to def's recent arrest. Tool boxes and gloves not admissible under inevitable discovery rule. Harmless error

Hardin, 34 FLW 2080, 2nd DCA, Trafficking in cocaine/search and seizure - Under totality of circumstances, def wife did not voluntarily consent to hand over to the officers a purse containing cocaine which she had concealed under the sheets of the bed, where three deputies, two of them male, were present in the room, and where the wife was naked under the sheets. Ofc advised def and wife at the outset they were looking for drugs, and ofcs, after a fruitless search of the motel room, had repeatedly told the wife that he knew she had drugs and promised her she would not charged if she cooperated. Although initial knock and talk were okay, continuing the encounter in the intimidating manner suggested by the record for at least an hour, and after two fruitless searches, exceeded the bounds of consent. Women consented to one women deputy to enter the room. No evidence she consented to the subsequent entry of two male deputies. Fact that car and license plate from an area that ofcs considered high in narcotic activity and difference between names on hotel registration and on license did not give reasonable belief that drug activity was afoot.

The Law Offices of Roger P. Foley, P.A.

Law Updates for October 9, 2009

2009-10-13T14:03:00.000-07:00

Light, 34 FLW 1974, 1st DCA. - Error to deny motion to suppress confession which was obtained through promises to the def. Confession not voluntary where ofc told def he could go home that day no matter what he said, and ofc misrepresented the law concerning the age of consent to def so he felt he was doing nothing wrong when he made admissions to the officer.

Roopnarine, 34 FLW 1982, 4th DCA - Error to exclude exculpatory witness based on def discovery violation where prejudice to state could be cured by another remedy short of excluding the witness. State alleged prejudice would be outnumbered on witnesses. State's prejudice could be cured by mistrial or continuance. The State right to numerical similarity of witness outweighed by def fundamental right to defend himself. New trial

Delgado, 34 FLW 1985. 3rd DCA-Kidnapping Def properly convicted where def and co-def jumped into pickup truck left running by the driver and drove away with a two year old asleep in the back of the truck. Reasonable to infer from the evidence that def became aware that the child was confined in the truck during the course of removing the radio and stealing other items from the truck. Confinement of child continued to theft of items in the truck and continued confinement was essential to def's attempt to avoid apprehension for theft of vehicle and its contents.

Moreno-Gonzalez, 34 FLW 1991, 3rd DCA, Search warrant supporting affidavit - Trial court erred in suppressing evidence on ground that the ofc did not sign affidavit in support of search warrant, where ofc swore to allegations in affidavit under oath before the judge, initialed each of the pages of the affidavit, and initialed each of the three pages of the search warrant

Battle, 34 FLW 2002, 4th DCA - Error to admit testimony of police ofcs regarding statements of witnesses who were unavailable because they had returned to Mexico. Admission of unavailable witnesses violated Confrontation Clause. Error to admit detectives's opinion testimony regarding def's guilt.

Mitrani/Venticinque, 34 FLW 2015, 5th DCA, Discussion of use/derivative immunity. Trial court erred in denying state motion to compel testimony of witnesses who had been subpoenaed for depos and who declined to testify despite being given use and derivative immunity.

The Law Offices of Roger P. Foley, P.A.