Law Updates for November 19, 2010

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

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

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

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?

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

Law Updates for October 29, 2010

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

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

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.