April 10, 2009

Masaka, 34 FLW 664, 2nd DCA, Attempted manslaughter - error to exclude statements made by uncharged passenger during the police interview where the passenger admitted that he had a gun matching that used to shoot cab driver in his pocket earlier on the day of the incident and telling people "I'm fixin to rob somebody", stated he had the gun in his possession used in the shooting after the incident and sold it to a stranger two days later, admitted to changing clothes immediately after the shooting as he knew the police would look for the shooter, and told ofc he did not talk to the cab driver at any time during the cab ride-passenger unavailable to testify at the trial. Relevant to mis-id defense, given cab driver's testimony that person who shot him did not speak at all while he and the other man chatted during the ride, proffered evidence exculpated the defendant and inculpated the uncharged passenger, and self-inculpatory statements were statements against interest and sufficiently corroborated. NEW TRIAL - Also principal instruction improper as one man fled in regards to the plan to get a cab ride without paying, petty theft, when they reached the destination and the other remained in the cab and shot the cab driver

Williams. 34 FLW 685, 4th DCA, PRR no error in imposing PRR sentence for Felony Battery where he was adj. guilty under statute which requires Great Bodily Harm, permanent disability or permanent disfigurement and crime committed could not be committed without the use or threat of physical force or violence.

Leland, 34 FLW 700, 2nd DCA, L & L molestation-other crimes, wrongs or acts - evidence of other incident where def touched victim's 17 year old sister's back, ear and legs not admissible because as those facts did not amount to child molestation, 90.404(2)(b)(2).

DHMSV v. Crane, 34 FLW 708, 1st DCA, even though Def out-of-state DUI could not be used for enhancement in criminal case as is not substantially similar could be used in administrative hearing for license revocation-criminal sentence is separate from administrative license revocation.





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

April 3, 2009

Nicholson, 34 FLW 637, 4th DCA, Evidence - other crimes, wrongs or acts - uncharged collateral crime, although consisting of prior bad acts, was admissible to prove motive and intent, where the evidence depicted the turbulent and sometimes violent relationship between def and victim - similarities between events of collateral crime and circumstances of the homicide are insufficient to warrant the introduction of collateral crimes bad acts for purposes of identity.



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

March 27, 2009

Roberts, 34 FLW 606, 5th DCA, While the court ruled in this case the independent act instruction was properly declined since def was willing participant in the robbery and murders were furtherance of plan there is a good discussion of the case law in the area

Bolin, 34 FLW 619, 2nd DCA, good case on manslaughter instructions

McBride, 34 FLW 620, 2nd DCA, error to deny JOA where state's evidence established that the def witnessed shooting and ran from scene, did not prove he fired a gun or def intended for crime to be committed or he committed an act in furtherance of - The act of fleeing the scene not enough to give rise to def's intent or participation in the crime



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

March 20, 2009

Cowan, 34 FLW 534, 4th DCA, Post-Arrest silence, video recording made of interaction between def and companion after they were arrested and left unattended in back seat of police car may have been admissible for limited purpose of showing that contrary to his testimony at trial def actually spoke to the companion, cross-exam of def as to why he did not to respond to companion's implied accusation and prosecutor's comments in closing argument emphasizing def's silence in patrol car was improper, comments on def post arrest silence - new trial

Robinson, 34 FLW 572, 1st DCA, sexual offender registration - evidence insufficient to support conviction for failing to comply with registration requirements by failing to report change in residence, although def was sleeping outside on the sidewalk of the homeless shelter which he listed as his current permanent residence, undisputed def advised local authorities where he could be located and complied with statutory requirement - fact that a client services rep. at homeless shelter did not see def at the shelter is not dispositive where def explained in unrebutted testimony he left early in the morning for work before rep arrived at shelter for his workday.


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

March 13, 2009

DeBolt, 34 FLW 482, 2nd DCA, trial court abused its discretion in allowing the state to question the defense experts regarding a disciplinary action in which the expert was formally disciplined in another state and received a four year restriction on his license as a sex offender treatment provided for adolescent sex offenders, focal point of state's case was not harmless error

Daniels, 34 FLW 483, 2nd DCA, expert testimony that she had never observed a child of the age of the victim react to certain testing procedure in the same manner that the victim had reacted and it was her opinion that victim's atypical reaction was "suggestive" of child sexual abuse lacked a proper factual basis where expert did not testify in her experience, children who did not exhibit a typical reaction during the procedure were likely sexually abused, harmful error, as prosecutor in closing argument emphasized expert's extensive experience in the field and her opinion that child's reaction was suggestive of sexual abuse

Lee v. DHSMV, 34 FLW 520, DUI, Adm review of suspension - licensee was denied due process when hearing officer failed to issue subpoena for individuals who inspected breath test, although inspection reports authored by these individuals were received in evidence and considered by the hearing officer in sustaining the license suspension - circuit court departed from the essential requirements of law in concluding the hearing officer did not have the authority to issue subpoenas



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

March 6, 2009

Two Williams Rule cases for the defense:

Berube, 34 FLW 436, 2nd DCA, Williams rule testimony was not similar or bear any logical relationship to any material aspect of the crime for which the defendant was being tried for. harmful error. state proof did not exclude the possibility that husband or unknown third person had actually strangled the victim, testimony had substantial effect on the jury and the prosecutor emphasized when he argued testimony of the rape victim and the def's encountered in the tried case showed that the def was the killer

Fike, 34 FLW 457, 5th DCA, evidence of prior acts as not sufficiently similar to charged act though not preserved for appellate review was fundamental error. charged offense of sexual battery on def's daughter and sexual molestation of def's ex-wife younger brother not sufficiently similar, other than occurred in familial context. no similarity between the two offenses, no physical evidence to support her version of events, admission of collateral crimes were fundamental error


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

February 27, 2009

Aime, 34 FLW 381, 4th DCA, Manslaughter with a firearm, evidence insufficient to support conviction where state failed to establish that the def was the shooter or aided and abetted in the shooting - def convicted of manslaughter with f/a as lesser included offense of first degree murder did not waive to raise sufficiency of evidence of manslaughter by failing to object to state's request for instruction of necessarily LIO

Reyes, 34 FLW 396, 3rd DCA, ofc had well founded suspicion justifying the investigatory stop where, upon approaching the defendant, officer noticed that the scooter had no key, def was nervous and sweating, he was coming from the direction of the scooter store, ofc had knowledge of recent scooter thefts in the area and he stated the scooter belonged to a friend whose name and address he did not know - ofc conducted a pat down and felt no weapon in def's clothing ofc actions in reaching into the pocket and retrieving driver's license was not valid - trial court properly suppressed evidence regarding def's identity, before the def arrested other ofc ran check on scooter's VIN and discovered that scooter belonged to the scooter store, evidence regarding ownership of the scooter was erroneously suppressed - evidence was secured independently from pat down search and was legally obtained followed valid investigatory stop and temporary detention

Kanji, 34 FLW 411, 5th DCA, denial of expungement, discretion of court to deny in not unfettered, remanded where no reason was given for the denial for the lower court to either grant or give reasons for denying the petition

Also, three cases about DHSMV cases about different issues where writs of cert granted by the trial court was overturned, cases more important for those who handle administrative hearings in refusal cases, Nader, 34 FLW 414, 2nd DCA, Escobio, 34 FLW 417, 2nd DCA, Yankey, 34 FLW 418, 2nd DCA.



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