S.B., 25 FLW 841, 4th DCA, Juv, resisting without violence, fleeing - Error to deny JOA where there was no command by the officer to stop at the time. The juveniles began to flee upon seeing officers and no evidence that juveniles knew of officers intent to detain them. Flight alone is not enough to sustain the charge, Clark 976/1225(4th DCA 2008) and Parker, 18 So, 3d 555(1st DCA 2008)
Bannister V. Lamberti, 35 FLW 873, 4th DCA, pretrial detention - Error to enter order of pretrial detention where the def failed to appear at the arraignment for GT without finding that no further conditions of release would assure the def's presence at trial, although the trial court did not make express finding that the failure to appear was willful. No such finding was necessary where the def did not place her conduct in failing to appear at issue.
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
Monday, April 26, 2010
Monday, April 19, 2010
Law Updates for April 9, 2010
Hankerson, 35 FLW 742, 4th DCA, Police observed the def exchange some object for paper currency at residence where ofc believed people might be selling drugs, and drive away pocketing what he received from others. Officers pulled the def over and ultimately searched the def's person. Def began removing his shoes before ofc could order him to do so and bag of what appeared to be cocaine lay inside one shoe. Police did not have pc to search the def without consent where the ofc did not see what was exchanged for money, did not see what was in his shoe, and did not see the def involved in more than one transaction. see Coney 822 So. 2d 1012(2nd DCA 2002)
Farias, 35 FLW 742, 4th DCA, Lewd and Lascivious molestation - Error to admit photographs of child's physical examination because photo showing no injuries had no relevance to issue of whether def molested the victim. Photo had minimal probative value and its potential for offending jury's sensibilities and evoking sympathy for the victim was substantial, not harmless, not said beyond a reasonable doubt had improperly admitted photo did not effect jury's verdict.
Hunter, 35 FLW 744, 4th DCA, Error to deny motion to suppress cocaine seizure as a result of a stop and seizure. Totality of the circumstances did not amount to reasonable suspicion that there was a Loitering and Prowling. Officer had no more than a bare suspicion of any incipient criminal conduct when they approached the def and co-def sitting equal distance between residences and a closed church and rummaging in their pockets. Mere presence close to closed business in late evening not enough to show incipient criminal conduct. Error to deny JOA as to charge of resisting arrest without violence where ofcs, with no reasonable suspicion to stop the def, were not engaged in lawful execution of a legal duty.
The Law Offices of Roger P. Foley, P.A.
Farias, 35 FLW 742, 4th DCA, Lewd and Lascivious molestation - Error to admit photographs of child's physical examination because photo showing no injuries had no relevance to issue of whether def molested the victim. Photo had minimal probative value and its potential for offending jury's sensibilities and evoking sympathy for the victim was substantial, not harmless, not said beyond a reasonable doubt had improperly admitted photo did not effect jury's verdict.
Hunter, 35 FLW 744, 4th DCA, Error to deny motion to suppress cocaine seizure as a result of a stop and seizure. Totality of the circumstances did not amount to reasonable suspicion that there was a Loitering and Prowling. Officer had no more than a bare suspicion of any incipient criminal conduct when they approached the def and co-def sitting equal distance between residences and a closed church and rummaging in their pockets. Mere presence close to closed business in late evening not enough to show incipient criminal conduct. Error to deny JOA as to charge of resisting arrest without violence where ofcs, with no reasonable suspicion to stop the def, were not engaged in lawful execution of a legal duty.
The Law Offices of Roger P. Foley, P.A.
Tuesday, April 13, 2010
Law Updates for April 2, 2010
Kurecka et al., 35 FLW 666, 4th DCA, Florida’s implied consent statue does not require police officers to advise persons arrested for DUI that the right to counsel does not attach to their decision to submit to the breath test. The statue only requires that the person be told that the failure to submit will result in suspension of driving privileges, and refusal to submit can be admitted at trial. Refusal to submit based on def’s misconception is not basis for excluding refusal from evidence where confusion was not the fault of law enforcement on any action of the police.
Harrison, 35 FLW 678, 1st DCA, Lewd and Lascivious, expert - Where the trial counsel defended the case by challenging the reliability of the 11 year child’s memory of events, trial court erred in excluding expert testimony of the formation of children’s memories. Abuse of discretion to prevent the expert from testifying because of failure to list expert as a witness until 13 days before trial as state made no objection and court failed to conduct a hearing.
Bellamy, 35 FLW 680, 1st DCA, Peremptory challenges - Trial court erred in failing to determine whether state’s purported race-neutral reasons for striking jurors were genuine or a pretext.
Slack, 35 FLW 690, 1st DCA, 316.1935(1) is a lesser included offense of 316.1935(2) although they are both third-degree felonies: fleeing or attempting to elude a law enforcement officer. No evidence that the vehicle driven by LEO had contained agency insignia and other jurisdictional markings, court should have directed a verdict to the lesser included offense.
The Law Offices of Roger P. Foley, P.A.
Harrison, 35 FLW 678, 1st DCA, Lewd and Lascivious, expert - Where the trial counsel defended the case by challenging the reliability of the 11 year child’s memory of events, trial court erred in excluding expert testimony of the formation of children’s memories. Abuse of discretion to prevent the expert from testifying because of failure to list expert as a witness until 13 days before trial as state made no objection and court failed to conduct a hearing.
Bellamy, 35 FLW 680, 1st DCA, Peremptory challenges - Trial court erred in failing to determine whether state’s purported race-neutral reasons for striking jurors were genuine or a pretext.
Slack, 35 FLW 690, 1st DCA, 316.1935(1) is a lesser included offense of 316.1935(2) although they are both third-degree felonies: fleeing or attempting to elude a law enforcement officer. No evidence that the vehicle driven by LEO had contained agency insignia and other jurisdictional markings, court should have directed a verdict to the lesser included offense.
The Law Offices of Roger P. Foley, P.A.
Tuesday, March 30, 2010
Law Updates for March 26, 2010
Farinacci, 35 FLW 608, 4th DCA, Hearsay: Where def was charged with Lewd and Lascivious fondling the clothed buttocks of a child under 12, it was harmful error to permit the detective to testify and demonstrate the victim's description of them manner in which the def touched him.
M.D., 35 FLW 610, 4th DCA, Constructive possession: Evidence was insufficient to establish that juvenile had dominion and control of marijuana found near him at the time of the arrest. Juvenile's statement that he was in the utility room "to smoke" was not enough to prove juv constructively possessed marijuana. Juv theory was he was smoking tobacco, not marijuana. This was reasonable, and circumstantial evidence was not inconsistent with a reasonable hypotheses of innocence.
Good, 35 FLW 611. 4th DCA, Court can withhold adjudication for two pending felonies pled at the same time. Two concurrent felony pleas, even though one incident was before the other, is not considered a prior case.
Mead, 35 FLW 617, 4th DCA, Intercepted communications: Law enforcement officer's direction to the victim to record any future conversations with the suspect was sufficient even if the ofc is not present. Brings it under the exception of 934.03(2)(c). Language of statute does not require active police involvement or presence during the recording session.
Hernandez, 35 FLW 618, 4th DCA, It was error to permit state to call the def's wife to the stand as a witness for the purpose of impeaching her with the transcript of a taped phone which was inadmissible hearsay. Tape was not admissible as a past recollection recorded where witness was unable or unwilling to attest to the accuracy of the tape recorded conversation.
D.B.P. 35 FLW 629, 5th DCA, search and seizure/ stop and frisk: Juvenile's act of putting his hands in his pocket during a stop for a non-criminal infraction in a high crime area was not sufficient to provide reasonable suspicion to justify the pat down.
The Law Offices of Roger P. Foley, P.A.
M.D., 35 FLW 610, 4th DCA, Constructive possession: Evidence was insufficient to establish that juvenile had dominion and control of marijuana found near him at the time of the arrest. Juvenile's statement that he was in the utility room "to smoke" was not enough to prove juv constructively possessed marijuana. Juv theory was he was smoking tobacco, not marijuana. This was reasonable, and circumstantial evidence was not inconsistent with a reasonable hypotheses of innocence.
Good, 35 FLW 611. 4th DCA, Court can withhold adjudication for two pending felonies pled at the same time. Two concurrent felony pleas, even though one incident was before the other, is not considered a prior case.
Mead, 35 FLW 617, 4th DCA, Intercepted communications: Law enforcement officer's direction to the victim to record any future conversations with the suspect was sufficient even if the ofc is not present. Brings it under the exception of 934.03(2)(c). Language of statute does not require active police involvement or presence during the recording session.
Hernandez, 35 FLW 618, 4th DCA, It was error to permit state to call the def's wife to the stand as a witness for the purpose of impeaching her with the transcript of a taped phone which was inadmissible hearsay. Tape was not admissible as a past recollection recorded where witness was unable or unwilling to attest to the accuracy of the tape recorded conversation.
D.B.P. 35 FLW 629, 5th DCA, search and seizure/ stop and frisk: Juvenile's act of putting his hands in his pocket during a stop for a non-criminal infraction in a high crime area was not sufficient to provide reasonable suspicion to justify the pat down.
The Law Offices of Roger P. Foley, P.A.
Wednesday, March 24, 2010
Law Updates for March 19, 2010
Day, Jr., 35 FLW 563, 4th DCA, 3-19-10, Confession case - Totality of the circumstances, where interviewer made promises of leniency, casual nexus between the def's statements to prove that the statement was product of coercive police conduct. Many offers of help and implying authority to influence the process. Improper "fruits of hope": unrealistic hope that the investigator interviewing him would truly help the defendant. Confession thrown out. amazing facts
Bleiweis, 35 FLW 586, 4th DCA, error to deny bail without permitting argument of counsel on issue of whether the proof is evident and the presumption is great. Writ of habeus corpus granted and assigned to a different judge.
The Law Offices of Roger P. Foley, P.A.
Bleiweis, 35 FLW 586, 4th DCA, error to deny bail without permitting argument of counsel on issue of whether the proof is evident and the presumption is great. Writ of habeus corpus granted and assigned to a different judge.
The Law Offices of Roger P. Foley, P.A.
Wednesday, March 10, 2010
Law Updates for March 5, 2010
F.E.H., Jr., 35 FLW 451, 4th DCA, unlawful stop - juvenile detained - reasonable person not feel free to leave. After the juvenile walked away from the ofc's presence the detective called him back and the juvenile returned because he was a policeman, "I had to come back." Juvenile's response was more of a surrender to authority than act of free will. Convergence of other police officers conducting a sweep involving others plus ofcs command was an investigate stop-no reasonable suspicion here juvenile was standing in an open parking lot on a street corner and people often cut the corner and walked through this unenclosed lot. No evidence a sign was posted and juvenile had already left the lot when he was stopped.
DeLa Osa, 35 FLW 455, State's writ of cert. denied where the state tried to disqualify his defense attorney, a former statewide prosecutor, who was formerly in charge of the unit where the charges had been filed four years after her departure from that office.
Benemerito, 35 FLW 456, 4th DCA, no reasonable suspicion when ofc, who had been patrolling a parking lot due to numerous complaints of drug transactions at the store, could not stop the def's car where the def's vehicle was parked at the entrance to the store. A truck entering the parking lot parked a few spaces away from the def's vehicle, truck driver walked to the def's vehicle and entered the backseat, and the truck driver leaned forward and extended his hand before exiting the vehicle and driving off in the truck. The ofc did not see drugs or money, or see a hand to hand transaction.
The Law Offices of Roger P. Foley, P.A.
DeLa Osa, 35 FLW 455, State's writ of cert. denied where the state tried to disqualify his defense attorney, a former statewide prosecutor, who was formerly in charge of the unit where the charges had been filed four years after her departure from that office.
Benemerito, 35 FLW 456, 4th DCA, no reasonable suspicion when ofc, who had been patrolling a parking lot due to numerous complaints of drug transactions at the store, could not stop the def's car where the def's vehicle was parked at the entrance to the store. A truck entering the parking lot parked a few spaces away from the def's vehicle, truck driver walked to the def's vehicle and entered the backseat, and the truck driver leaned forward and extended his hand before exiting the vehicle and driving off in the truck. The ofc did not see drugs or money, or see a hand to hand transaction.
The Law Offices of Roger P. Foley, P.A.
Monday, March 1, 2010
Law Updates for February 19, 2010
Loncar, 35 FLW 324, 2nd DCA, Modification of probation without a violation is improper and enhancing the def's probation condition is improper. Requirement that the Def could not live within 10 miles of the victim prevented him from living with his father as he had earlier, more restrictive than prior condition. Remand to reinstate the prior probation order.
Green, 35 FLW 325, 2nd DCA, Improper comment on right to remain silent. Case-elicit from the
police that the def declined to give a statement unlike his co-def's. Argued in closing, harmful error, def did not open the door to these statements by narrowly tailored questions to the police in order to try and show they set up the co-def's against each other.
Barrow, 35 FLW 328, 4th DCA, Judge implied to jury who requested transcripts of witnesses 10 minutes after deliberations started without advising them of the possibility of read backs, ignoring the request of the state and defense, certified conflict with 3rd DCA, Hazuri, 34 FLW 2590, 12-16-09.
Douglas, 35 FLW 354, 3rd DCA, Double jeopardy. No manifest necessity with the court declaring a mistrial, def no waiver and not discuss alternatives enough where there def not brought to court on the 2nd day of jury trial as there was H1N1 quarantine at the jail in the def's unit and case would have to be delayed for a week.
The Law Offices of Roger P. Foley, P.A.
Green, 35 FLW 325, 2nd DCA, Improper comment on right to remain silent. Case-elicit from the
police that the def declined to give a statement unlike his co-def's. Argued in closing, harmful error, def did not open the door to these statements by narrowly tailored questions to the police in order to try and show they set up the co-def's against each other.
Barrow, 35 FLW 328, 4th DCA, Judge implied to jury who requested transcripts of witnesses 10 minutes after deliberations started without advising them of the possibility of read backs, ignoring the request of the state and defense, certified conflict with 3rd DCA, Hazuri, 34 FLW 2590, 12-16-09.
Douglas, 35 FLW 354, 3rd DCA, Double jeopardy. No manifest necessity with the court declaring a mistrial, def no waiver and not discuss alternatives enough where there def not brought to court on the 2nd day of jury trial as there was H1N1 quarantine at the jail in the def's unit and case would have to be delayed for a week.
The Law Offices of Roger P. Foley, P.A.
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