January 9, 2009

Nowell, 34 FLW 26, Fla Sup Ct., Murder case revered unlawful strike in voir dire for the following reasons; prosecutor's general feeling or "dislike" of juror not genuine race neutral, juror's age not legitimate where other juror left on jury was equally applicable and not challenged by the state, prosecutor's concern about juror following the law based on juror's wife job at day care center and his philosophy on death penalty was contradicted by the record, concern that juror felt he was judging the person, offered by the prosecutor was an "afterthought"when trial court revisited the issue the following day, was equally applicable to other jurors not challenged.


Sheppard, 34 FLW 5, 2nd DCA, aiding and abetting-although there was sufficient evidence that def was guilty of aiding another person in selling and delivering cocaine to undercover officer, insufficient in aiding and abetting possession of that cocaine no showing actually or constructively possessed that cocaine or aided or abetted the other person in acquiring or retaining the cocaine-JOA for possession should have been granted


Steadman, 34 FLW 78, 2nd DCA, Pat down-plain feel, ofc justified in conducting a pat down here, however, ofc did not lawfully remove plastic baggie of cannabis from def's pocket where he did not immediately recognize items as contraband, but instead needed to extract "baggie" to discover what it contained-error to deny motion to suppress, Perkins, 979 So. 2d 409(1st DCA 2008).


Stumpf, 34 FLW 87, 4th DCA, CCF without a license-def who worked as a volunteer with Fla. Fish and Wildlife Commission, and authorized to carry firearm as part of his employment was exempt from licensing requirement for CCF although the def had been placed on inactive status but not officially suspended, 790.052

Sharrard, 34 FLW 94, 4th DCA, Circuit Court exceeded jurisdiction by entering orders requiring DOC to effect warrant less arrests of def on c.c. or probation upon def testing positive for a prohibited substance and require Dept to transport offender to jail-violate separation of powers.



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

December 26, 2008

Hobbs, 33 FLW 1005, Fla, Confession-sexual abuse cases-92.565, which provides that in certain criminal actions a def confession or admission is admissible during trial without the state having to independently prove the corpus deliciti of the crime which sets forth factors which may be relevant in determining the state's inability to show the existence of each element of the crime, does not prohibit the court from considering the recantation of the victim as a factor relevant to whether the state is unable to show the elements of the crime, statute does not limit the trial court to considering only victim's physical and mental capacity at the time the crime was committed

D.S.D., 33 FLW 2872, 5th DCA, L & P, Juvenile presence early in morning in residential area without more not enough for L & P, ofc justified in questioning juvenile when he discovered them wearing dark clothes, in the area of a 3:30 a.m. prowler report, during encounter no additional facts came to light to support arrest for L & P, fact that ofc discovered a pair of gloves in juvenile's pocket does not alter result-cites cases

Smith. 33 FLW 2879, 4th DCA, Consent-voluntariness-where, after a traffic stop, def who was passenger in a car was detained on the side of the road by 2 ofcs with a canine unit while the driver of the vehicle was being searched and def was informed by officer that he was going to be searched and that he should turn over anything illegal before the search took place, def's act of handing officer pill bottle containing drugs was the product of an imminent pat down and not the result of an imminent act of free will



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

December 12, 2008

Larimore v. State, 33 FLW 948, Fla, Civil Commitment-individual must be in lawful custody when the state takes steps to initiate proceedings pursuant to Jimmy Ryce Act in order for the circuit court to have jurisdiction to hear this matter.

Nowak, 33 FLW 2788, 5th DCA, even though substantial evidence supported the trial court finding to suppress statements pursuant to not waiving her Miranda rights when the def disclosed location of the car pursuant to her illegal statement court properly held law enforcement would have found the car legally, even if the def had not led them to it, trial court erred in finding that the police could not search the car because they did not have pc to believe it contained any additional evidence of the crime that was ultimately charged in this case, police had practical common sense basis to conclude that def's car likely contained additional offense of her alleged criminal conduct based on items lawfully seized from the def and victim's statement to the police, pc to search car.



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

December 5, 2008

Estrich, 33 FLW 2726, 4th DCA, DUI Manslaughter-court abused its discretion in denying def's motion in limine to prohibit testimony about presence of marijuana in def's blood where DUI prosecution was based on ingestion of Xanax and state conceded marijuana did not contribute to the crash-probative value of evidence was substantially outweighed by danger of unfair prejudice, possession of another illegal drug would bolster the state's contention that yet another drug impaired his ability to drive, court erred on failing ot sever the misd marijuana charge

Brown, 33 FLW 2741, 3rd DCA, racial discrimination-juror's non verbal conduct which was not observed by either the judge or defense counsel was not a proper basis to sustain state's peremptory challenge as genuinely race-neutral



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

November 28, 2008

Nelson, 33 FLW 2687, 4th DCA, Original Opinion at 33 FLW 2088, prohibition-speedy trial-motion for continuance filed after the speedy trial period expired but before any notice of expiration invoked the right of recapture was a nullity and has no effect-Question certified: Does a motion for continuance made after the expiration of the speedy trial period but before a def files a notice of expiration under the rule, which activates the right of recapture period, waive a def's speedy trial rights under the rule, Naveira, 873 So. 2d 300(Fla 2004) does not change the court's ruling here.

Hernandez v. DHMSV, 33 FLW 2707, 1st DCA, can still challenge the legality of the arrest at DMV refusal Administrative hearings, also see Pelham 979 So. 2d 304, 5th DCA 2008)

Gordon, 33 FLW 2708, 1st DCA, Trafficking in Hydrocodone, trial court misapplied the law in refusing to suppress the evidence seized as a result of a probationary search and allowed the contraband evidence discovered during the search of the probationer's residence to be admitted into evidence in the prosecution of new charges against the defendant(should have obtained a search warrant), Soca 673/28


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

November 21, 2008

Brown, 33 FLW 2632, 4th DCA, error to grant def's motion to prohibit the state form using uncounseled prior felony for enhancement of current DUI charge to felony where the def did not actually receive a sentence of imprisonment in prior case of face sentencing exceeding 6 months in that case-died did not allege his prior DUI included an accident-received in order to show he was subject to a possibility of more than 6 months in the prior case-fact he spent 48 hours in jail prior to his area and after the arrest does not count to imprisonment

Williams, 33 FLW 2634, 4th DCA, handcuffing a def during a temporary detention amounted to unlawful seizure, stop was for speeding, driver of car was in custody before the def was handcuffed, so he posed no threat and pat-down found no weapons preceded the use of handcuffs-def's attempted disposal of marijuana and discovery of meth after the unlawful seizure was fruit of the poisonous tree

Griggs, 33 FLW 2648, 5th DCA, speedy trial-def was arrested when removed from scene of traffic stop and transported to police facility for purpose of ofc booking def or having him to agree to provide substantial assistance to police where it was quite clear to def if he did not accede to the investigator's offer "to talk about it" he would not have been released, agreement to cooperate without more does not act as waiver of speedy trial time-error to deny motion for 175 day discharge

S.E.B, 33 FLW 2661, 2nd DCA, error to deny to dismiss drug charges where evidence was insufficient to prove constructive possession of illegal contraband found beneath center console of vehicle in which juvenile was front-seat passenger and which was registered to the individual not in the car


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

November 14, 2008

Jean-Marie, 33 FLW 2592, Argument: failure to call witness - no abuse of discretion in prohibiting defense counsel from pointing out in closing argument that state failed to call as a witness the detective who had taken def's statement and investigated the crime where there was no explanation how the detective, who was not a witness to the crime, could have spoken about any relevant issue. Fact that state used portion of statement defendant investigated the crime does not demonstrate that the detective could elucidate anything


Andl, 33 FLW 2611, 5th DCA, error to revoke probation for failure to promptly and truthfully answer inquiries of probation where lie was willful but not so substantial as to warrant a finding of violation of probation. The probationer had mental health issues and was making reasonable efforts to comply with rules of probation. The lie did not give rise to material violation or warrant a 3 year prison sentence, even though no justification existed for lying to p.o. and unnecessary expenditure of time and effort (DECISION RESTRICTED TO FACTS OF CASE)


G.T.J., 33 FLW 2616, 2nd DCA, Self-defense. State failed to rebut juvenile's prima facie case of self-defense, failed to carry burden to prove delinquent beyond a reasonable doubt. Juvenile provided unrebutted testimony that he swung a rod at the victim only after they began chasing him with one of the men brandishing a knife and that he swung his belt at the two of them only after one of them began to choke him. Evidence presented by the state did not rebut the juvenile's testimony regarding aggressive, violent conduct of victims, and neither victim denied that the juvenile had been threatened with the knife and choked.


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