Law Updates for October 8, 2010

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

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

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

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

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

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

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.