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.
Discussions and Summaries of updates to Florida Law from the web pages of Criminal Defense Attorney, Roger P. Foley. www.lawyerfoley.com
Tuesday, January 18, 2011
Tuesday, January 11, 2011
No Refusal DUI Checkpoints?
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.
The Law Offices of Roger P. Foley,P.A.
Wednesday, January 5, 2011
Florida Tickets and Suspensions
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.
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.
Thursday, December 30, 2010
Juvenile Convictions - More Trouble Than You Think
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.
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.
Wednesday, December 29, 2010
Law Updates for December 24, 2010
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.
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.
Friday, December 24, 2010
Law Updates for December 17, 2010
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.
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.
Friday, December 17, 2010
Law Updates for December 10, 2010
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.
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.
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