Ramsammy, 35 FLW 1824, 4th DCA, Murder 2 reversed should have been a Judgement of Acquittal. Interesting opinion.
Diaz, 35 FLW 1835, 4th DCA, trial court committed manifest error by refusing to dismiss potential juror for cause when there was reasonable doubt about impartiality and not rehabilitated for further questioning. Prospective juror's silence when asked if anyone could not do their job in determining whether a crime was committed and whether def committed the crime did not erase reasonable doubt as to impartiality created by her earlier equivocal response that it would be difficult and not sure if could be fair and impartial. New Trial required
Akien, 35 FLW 1836, 4th DCA, could admit a victim, 17 year old, 911 call in a rape case as excited utterance to hearsay after 35-40 minutes still under stress of excitement and not time to reflect yet.
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
Friday, August 27, 2010
Tuesday, August 17, 2010
Law Updates for August 13, 2010
E.J., 35 FLW 1728, 4th DCA, vehicle passenger consent - Passenger did not consent to pat down by spontaneously turning and placing her hands on the top of the car, and spreading her legs, after she exited the vehicle at the request of the officer for an inventory search where the driver was arrested for DUI. Passenger merely acquiesced to police authority. The passenger was 14 year old juvenile and first encounter with the police. Officer did not requested consent and juvenile copied what the arrested driver was doing. Frisk not supported by reasonable suspicion as the police had no information that the def was armed and dangerous.
Wicklow, 35 FLW 1734, 4th DCA, Prosecutorial Misconduct - New trial cumulative effect elicited sympathy for the victim, suggested improper defense tactics, disparaged defense counsel, and improperly bolstered credibility of key witness. The combined effect of this improperly led to a conviction.
Beahan, 35 FLW 1760, 1st DCA, suppress evidence - No reasonable suspicion that the def was impaired at the time of the traffic stop, therefore subsequent search of the vehicle was unlawful. Evidence seized from the vehicle should have been suppressed. Neither fact that def was driving slowly in residential neighborhood, fact he stopped a few times on the side of the street, made improper u-turn, nor fact that took place in area where drug transactions are known to take place is sufficient to support decision def was driving his car impaired.
Kates, 35 FLW 1795, 1st DCA, Resist ofc without violence - Error to admit detailed testimony regarding an uncharged drug transaction to describe events leading up to the charged offenses. Was not necessary for jury's understanding of officers encounter with the defendant.
The Law Offices of Roger P. Foley, P.A.
Wicklow, 35 FLW 1734, 4th DCA, Prosecutorial Misconduct - New trial cumulative effect elicited sympathy for the victim, suggested improper defense tactics, disparaged defense counsel, and improperly bolstered credibility of key witness. The combined effect of this improperly led to a conviction.
Beahan, 35 FLW 1760, 1st DCA, suppress evidence - No reasonable suspicion that the def was impaired at the time of the traffic stop, therefore subsequent search of the vehicle was unlawful. Evidence seized from the vehicle should have been suppressed. Neither fact that def was driving slowly in residential neighborhood, fact he stopped a few times on the side of the street, made improper u-turn, nor fact that took place in area where drug transactions are known to take place is sufficient to support decision def was driving his car impaired.
Kates, 35 FLW 1795, 1st DCA, Resist ofc without violence - Error to admit detailed testimony regarding an uncharged drug transaction to describe events leading up to the charged offenses. Was not necessary for jury's understanding of officers encounter with the defendant.
The Law Offices of Roger P. Foley, P.A.
Friday, August 13, 2010
Law Updates for August 6, 2010
Nicholas, 35 FLW 1668, 2nd DCA, Trafficking in cocaine,constructive possession - Defendant's statement that he cooked and sold unknown quantity of cocaine at an unknown time and that he had sold large quantities of drugs in the past were not sufficient to establish constructive possession of large quantity of cocaine found in co-conspirator's apartment.
Stone, 35 FLW 1687, 4th DCA, State cannot appeal ruling granting JOA by the court after the jury is sworn but before the verdict is rendered. State's failure to present evidence after being given an opportunity to do so, and not a defect in the indictment or other ground unrelated to factual guilt or innocence, was not an appealable order dismissing an indictment. Appeal would have violated def's double jeopardy rights.
The Law Offices of Roger P. Foley, P.A.
Stone, 35 FLW 1687, 4th DCA, State cannot appeal ruling granting JOA by the court after the jury is sworn but before the verdict is rendered. State's failure to present evidence after being given an opportunity to do so, and not a defect in the indictment or other ground unrelated to factual guilt or innocence, was not an appealable order dismissing an indictment. Appeal would have violated def's double jeopardy rights.
The Law Offices of Roger P. Foley, P.A.
Tuesday, August 3, 2010
Law Updates for July 30, 2010
Ferguson, 35 FLW 1612, 2nd DCA, Loitering & Prowling - Officer did not have probable cause to arrest the defendant, although engaged in unusual behavior. Defendant stopped when asked to do so by the officer, provided proof of identity, and where he lived, and explained he was in the area to visit a friend. The friend confirmed identity and said not unusual for him to visit her. Suspicious actions do not effect determination of probable cause. To believe Loitering & Prowling that offense must be complete before any police action occurs.
Pulcini, 35 FLW 1620, 4th DCA Unlawful sexual activity with minors, other crimes, wrongs or acts - Abuse of discretion to admit collateral crime evidence relating to acts that occurred 19 or 20 years before and involved a twelve year old child where collateral acts did not share sufficient points of similarity with charged crime to be admissible. Error not harmless where case boiled down to credibility of the victim's testimony contradicted by two defense witnesses and uncorroborated by any physical evidence, and state highlighted the improperly admitted evidence in closing argument.
Johnson, 35 FLW 1628, 4th DCA, Lewd or Lascivious battery - defendant was 37 and 13 year old girl - Trial court erred by admitting evidence the victim twice attempted to commit suicide after relationship was revealed and defendant was arrested. Error not harmless probative value outweighed by unfair prejudice. New trial.
*******, 35 FLW 1652, 2nd DCA, Pharmacy records - Trial court applied wrong statute when it suppressed prescription records obtained from pharmacy without subpoena or consent of patient. 456.057 applies to health care practitioners and excludes pharmacies and pharmacists. Standing error to fail to address state's claim that defendant did not have an expectation of privacy in prescription records as they were fake. On remand court should make a ruling of reasonable expectation of privacy in the prescriptions.
T.T.N, 35 flw 1653, 2nd DCA, Police stop outside of his jurisdiction - Municipal officers initiated a traffic stop, driver fled on foot, remaining passengers drove away in the vehicle. Fleeing driver apprehended and arrested, officer did not have jurisdiction to initiate an investigation at the vehicle's registered address in a different city. No evidence that juvenile was involved or about to be involved in crime at the time the officers arrived at the address of the vehicle's registered owner. Juvenile's attempt to run away was not sufficient to justify an investigatory stop. Trial court erred in stating that even if stop was unlawful, tube of cocaine dropped when officer approached was voluntarily abandoned. Officer's testimony showed that child submitted to the officer's authority after he was ordered to show his hands, and tube fell from juvenile's body.
The Law Offices of Roger P. Foley, P.A.
Pulcini, 35 FLW 1620, 4th DCA Unlawful sexual activity with minors, other crimes, wrongs or acts - Abuse of discretion to admit collateral crime evidence relating to acts that occurred 19 or 20 years before and involved a twelve year old child where collateral acts did not share sufficient points of similarity with charged crime to be admissible. Error not harmless where case boiled down to credibility of the victim's testimony contradicted by two defense witnesses and uncorroborated by any physical evidence, and state highlighted the improperly admitted evidence in closing argument.
Johnson, 35 FLW 1628, 4th DCA, Lewd or Lascivious battery - defendant was 37 and 13 year old girl - Trial court erred by admitting evidence the victim twice attempted to commit suicide after relationship was revealed and defendant was arrested. Error not harmless probative value outweighed by unfair prejudice. New trial.
*******, 35 FLW 1652, 2nd DCA, Pharmacy records - Trial court applied wrong statute when it suppressed prescription records obtained from pharmacy without subpoena or consent of patient. 456.057 applies to health care practitioners and excludes pharmacies and pharmacists. Standing error to fail to address state's claim that defendant did not have an expectation of privacy in prescription records as they were fake. On remand court should make a ruling of reasonable expectation of privacy in the prescriptions.
T.T.N, 35 flw 1653, 2nd DCA, Police stop outside of his jurisdiction - Municipal officers initiated a traffic stop, driver fled on foot, remaining passengers drove away in the vehicle. Fleeing driver apprehended and arrested, officer did not have jurisdiction to initiate an investigation at the vehicle's registered address in a different city. No evidence that juvenile was involved or about to be involved in crime at the time the officers arrived at the address of the vehicle's registered owner. Juvenile's attempt to run away was not sufficient to justify an investigatory stop. Trial court erred in stating that even if stop was unlawful, tube of cocaine dropped when officer approached was voluntarily abandoned. Officer's testimony showed that child submitted to the officer's authority after he was ordered to show his hands, and tube fell from juvenile's body.
The Law Offices of Roger P. Foley, P.A.
Friday, July 30, 2010
Law Updates for July 23, 2010
Ray, 35 FLW 1552, 4th DCA, vehicle stop - No reasonable suspicion that def had committed a crime at the time of the traffic stop. Officer monitoring the neighborhood based on recent complaints of drug dealing observed def drive up and stop in the middle of the road and engage in a hand-to-hand exchange with unknown adult male. Traffic violation that occurred after the emergency lights were activated not a basis for finding the stop was lawful. Evidence subsequent to the stop suppressed.
Williams, 35 FLW 1554, 4th DCA, Severance - Error to fail to sever GT of a firearm charge from the manslaughter charge that occurred the next day based on an alleged accidental shooting of his friend. Collateral crime evidence, presumptively harmful and prejudicial, outweighs the relevancy of the jury hearing the GT charge.
Ward, 35 FLW 1156, 4th DCA, Error to give the jury instruction regarding inference to be drawn from possession of recently stolen property, where victim could not positively ID the def as one of the two assailants at the scene of the crime, and where stolen property was never found in the def's possession.
The Law Offices of Roger P. Foley, P.A.
Williams, 35 FLW 1554, 4th DCA, Severance - Error to fail to sever GT of a firearm charge from the manslaughter charge that occurred the next day based on an alleged accidental shooting of his friend. Collateral crime evidence, presumptively harmful and prejudicial, outweighs the relevancy of the jury hearing the GT charge.
Ward, 35 FLW 1156, 4th DCA, Error to give the jury instruction regarding inference to be drawn from possession of recently stolen property, where victim could not positively ID the def as one of the two assailants at the scene of the crime, and where stolen property was never found in the def's possession.
The Law Offices of Roger P. Foley, P.A.
Friday, July 23, 2010
Law Updates for July 16, 2010
Koch, 35 FLW 1483, 2nd DCA, Fleeing and eluding a police officer - Error to fail to instruct jury on permissive LIO of refusal to obey officer's lawful order on ground that 316.072(3)(obedience to police and fire department officials) that the statute only applied to emergency situations. Trial court was requested to instruct the jury on offense where elements were alleged in information and evidence of those elements were presented at trial.
Kiss, 35 FLW 1506, 4th DCA, DSP/GT - Trial court committed fundamental error by failing to instruct the jury, pursuant to 812.025, that it could not return a guilty verdict on both charges of grand theft and dealing with stolen property when charges arise in connection with one scheme or course of conduct. Trial court did not properly cure such error by adjudicating the def guilty for DSP and discharge to the GT. Remand for new trial rather than reversing lesser offense conviction and affirming greater. Conflict certified.
Tamulonis, 35 FLW 1535, 2nd DCA, Officers not required to procure a search warrant or subpoena prior to obtaining controlled substance records from pharmacies. Error to grant motion to suppress patient profiles and prescriptions obtained from pharmacies without a subpoena or warrant. Statute, 893.07(4) requiring pharmacists to maintain controlled substance records, including prescription records, and to make records available for inspection and copying by police does not violate constitutional privacy provisions under the Florida constitution, Carter 23 So. 3rd 798(1 DCA 2009).
The Law Offices of Roger P. Foley, P.A.
Kiss, 35 FLW 1506, 4th DCA, DSP/GT - Trial court committed fundamental error by failing to instruct the jury, pursuant to 812.025, that it could not return a guilty verdict on both charges of grand theft and dealing with stolen property when charges arise in connection with one scheme or course of conduct. Trial court did not properly cure such error by adjudicating the def guilty for DSP and discharge to the GT. Remand for new trial rather than reversing lesser offense conviction and affirming greater. Conflict certified.
Tamulonis, 35 FLW 1535, 2nd DCA, Officers not required to procure a search warrant or subpoena prior to obtaining controlled substance records from pharmacies. Error to grant motion to suppress patient profiles and prescriptions obtained from pharmacies without a subpoena or warrant. Statute, 893.07(4) requiring pharmacists to maintain controlled substance records, including prescription records, and to make records available for inspection and copying by police does not violate constitutional privacy provisions under the Florida constitution, Carter 23 So. 3rd 798(1 DCA 2009).
The Law Offices of Roger P. Foley, P.A.
Wednesday, July 14, 2010
Law Updates for July 9, 2010
Caldwell, 35 FLW 425, Fla. Supreme Court, Miranda. An officer's reading of Miranda during a otherwise consensual search does not always transfer the consensual encounter into an investigatory stop. Reading of Miranda may add to the coercive nature of the encounter sometimes and must be decided on a case by case basis. In this case does not convert the consensual encounter into a seizure. Def not seized before voluntarily entered a police vehicle; confession not a product of an illegal detention.
Gomez, 35 FLW 432, Fla. Supreme Court, Forefeiture, Probable Cause. Seizing property initially does not require that the owner knew, or should have known after reasonable inquiry, that property was employed or likely to be employed in criminal activity.
Tindall, 35 FLW 1449, 4th DCA, Error to adjudicate def guilty of two counts of aggravated kidnapping where charges were based on movement of child victims of sexual battery from front door of the house to a bedroom where the sexual battery occurred and victims were held in the room for as the long as the crime occurred and then released.
Hill, 35 FLW 1455, 3rd DCA, Consent-Investigatory stop. Where one ofc positioned his vehicle directly in front of the def and pointed the vehicle's spotlight on the def, another ofc approached def on foot in a manner that indicated a sense of urgency, and immediately thereafter two other officers joined at the scene. Investigatory stop and not a consensual encounter, no reasonable suspicion of criminal activity, def's consent to search during the stop while the ofc retained his license to run a warrants check was not voluntary.
Lowe, 35 FLW 1463, 5th DCA, Lewd and Lascivious exhibition. Def's actions of placing a dildo in his mouth in the presence of a seven year old child does not constitute sexual activity within the statutory definition. Definition of sexual activity in the statute does not include the simulation of oral sex with an object. Error to deny the motion to dismiss the information.
Downs, 35 FLW 1465, 5th DCA, Sexual Battery on a child, Uncharged crimes. Def was charged with digital penetration of a child. Error to admit evidence of later incidents in which the def came into the bathroom while the victim showered and touched her inappropriately. Not admissible that was inexplicably intertwined with charged crime when two years after the charged crime. Not admissible as separate crime or acts of child molestation where the def had not been given notice of evidence the State intended to offer.
The Law Offices of Roger P. Foley, P.A.
Gomez, 35 FLW 432, Fla. Supreme Court, Forefeiture, Probable Cause. Seizing property initially does not require that the owner knew, or should have known after reasonable inquiry, that property was employed or likely to be employed in criminal activity.
Tindall, 35 FLW 1449, 4th DCA, Error to adjudicate def guilty of two counts of aggravated kidnapping where charges were based on movement of child victims of sexual battery from front door of the house to a bedroom where the sexual battery occurred and victims were held in the room for as the long as the crime occurred and then released.
Hill, 35 FLW 1455, 3rd DCA, Consent-Investigatory stop. Where one ofc positioned his vehicle directly in front of the def and pointed the vehicle's spotlight on the def, another ofc approached def on foot in a manner that indicated a sense of urgency, and immediately thereafter two other officers joined at the scene. Investigatory stop and not a consensual encounter, no reasonable suspicion of criminal activity, def's consent to search during the stop while the ofc retained his license to run a warrants check was not voluntary.
Lowe, 35 FLW 1463, 5th DCA, Lewd and Lascivious exhibition. Def's actions of placing a dildo in his mouth in the presence of a seven year old child does not constitute sexual activity within the statutory definition. Definition of sexual activity in the statute does not include the simulation of oral sex with an object. Error to deny the motion to dismiss the information.
Downs, 35 FLW 1465, 5th DCA, Sexual Battery on a child, Uncharged crimes. Def was charged with digital penetration of a child. Error to admit evidence of later incidents in which the def came into the bathroom while the victim showered and touched her inappropriately. Not admissible that was inexplicably intertwined with charged crime when two years after the charged crime. Not admissible as separate crime or acts of child molestation where the def had not been given notice of evidence the State intended to offer.
The Law Offices of Roger P. Foley, P.A.
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