Law Updates for December 25, 2009

Regalado, 34 FLW 1571, 4th DCA, Because it is legal to carry a concealed weapon in Florida if one has a permit to do so, a Terry stop was not allowed as there was no allegation of criminal conduct. An anonymous tip that "some guy over there was flashing his gun to a couple of friends" was not sufficient to justify a Terry stop.

Hazuri, 34 FLW 1590. 3rd DCA, Read back of testimony, in response to jury's request for trial transcripts. Trial court did not abuse discretion in advising jury it could not be given copies of the transcripts and must, therefore, rely on their own recollection of the testimony, and declining to advise jury it could receive a "read back." Trial court had no duty to inform jurors that a read back may be available on request. Judge's answer was fair and accurate, see dissent Avila, 781 So. 2d 413, 415, 4th DCA 2001

Peterson, 34 FLW 2607, 2nd DCA, Where the def's theory of the defense was that he had abandoned the stolen property before he used force to escape the scene and the sales clerk was the only witness who contradicted the defense's theory that he transferred the stolen items from beneath his clothing to a shopping basket before shoving his way out of the store, the trial court abused discretion by excluding evidence that the sales clerk no longer worked at the store because she was suspected of stealing and the clerk wished to regain her job, and limiting to defense to only that the clerk no longer worked at the store. Trial court abused its discretion in refusing a special jury instruction that jury was required to find the def guilty of robbery if the evidence established that the property was abandoned prior to the use of force, and standard instruction did not explain the theory of the defense, and it was a correct statement of the law and was not misleading.





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

Law Updates for December 4, 2009

B.O., 34 FLW 2442, 4th DCA, Juveniles. Where charging document alleged only that the juvenile committed two counts of grand theft of a firearm, but did not allege in that in stealing the firearms juvenile possessed or used a firearm, it was error to increase the standard penalty to 15 days of secured detention pursuant to 790.22(9). Statute is not applicable where petition neither cited the statute nor alleged that, in committing the theft, the juvenile used or possessed a firearm.

Carter, 34 FLW 2444, pg. 2446-7, 4th DCA, Language about suppressing photo lineups, found for the state, may want to save in files.

Carter, 34 FLW 2466, search and seizure - prescription records. Error to grant motion to suppress records obtained from a pharmacy by an investigating law enforcement officer. 893.07(4) requires pharmacies to make controlled substance records available to law enforcement and does not require the pharmacies to notify the patient or withhold such records until a warrant is presented. Privacy Provision of Florida Constitution does not support suppression of records in this case. Regulation and control of medical records is a vital governmental interest and substantially outweighs privacy interests.





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

Law Updates for November 27, 2009

Abbey, 34 FLW 2372, 4th DCA, Probable cause for issuance of search warrant for "black box" from def's vehicle. Affidavit showing excessive speed in residential area sufficient to evince a "reckless disregard for human life or the safety of persons exposed to speed" as required to establish vehicular homicide. Error to grant motion to suppress

Pierre, 34 FLW 2374, 4th DCA, First degree felony murder. Statement of defendant, "I'm not saying anymore," followed by over a minute silence, and subsequent questioning violated Def's Miranda rights. Accusatory statement, "You're Turtle," made by detective upon reentering the room amounted to questioning where detective had already told the defendant he was taking def's picture to show witnesses who could id participants in robbery-murder and had already asked the def at the beginning of the interview if he was Turtle. Fact that this detective did not know def had invoked his right to silence does not avoid Miranda. Error to deny to suppress statement.

Bowers, 34 FLW 2384, 2nd DCA, Fellow officer rule. The testimony of ofc who investigated the DUI regarding what the ofc who stopped him told him about the def's driving was hearsay and not admissible to prove that the stopping officer witnessed the def violate a traffic law. The fact that DUI investigator was called to the scene after the stop was completed did not make him a fellow officer for purposes of determining if there was probably cause to support the traffic stop. Conflict with Ferrer, 785 So. 2d 709(4th DCA 2001)





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

Law Updates for November 20, 2009

Dawson, 34 FLW 2294, 4th DCA, Richardson violation. Trial court erred in failing to conduct a complete hearing and failing to consider lesser sanctions, such as a continuance or a mistrial, before excluding defense rebuttal witness, where testimony was relevant and trial court found state was prejudiced because it was not given an opportunity to depose the witness and subpoena rebuttal witness or possibility of taking depo of defense witness before testifying. Application of three part test insufficient for a discovery violation as the court must consider a fourth factor and explore whether another reasonable alternative can be employed to overcome possible prejudice. Error not harmless in reversing first degree murder conviction where reasonable possibility that exclusion of witness contributed to the conviction.

Thompson, 34 FLW 2299, 4th DCA. Credit for time served - probation revocation. Def originally sentenced to concurrent terms for 2 counts, and trial court imposed consecutive sentences for those two counts after VOP. Def was entitled to credit for time served against both of the consecutive sentences. (see Rabedeau, 2 3rd 191(Fl. 2009))

L.C., 34 FLW 2306, 3rd DCA, search and seizure. It was unreasonable for police officer to perform a weapons search without having performed a pat-down of a 15 year old truant before putting her in the back of the police car to execute the ofc's statutory obligation to transport her to school where the officer had no basis to suspect the student of possessing any weapons. Absence of reasonable suspicion not justified in search just because ofc felt unsafe about his safety, nor could he do based on blanket department policy.

Ortiz, 34 FLW 2311, 5th DCA, (En banc) Reversed lower panel opinion now in favor the trial judge's finding of exigent circumstances (medical emergency exception) for warrant less search of home - for the state, distinguishes Riggs, 918 So. 2d 274(Fl. 2005).

Acevedo, 34 FLW 2322, 5th DCA, Miranda warning given to def was defective where def was told that he had a right to counsel but was not told he had a right to counsel both before being interrogated and during interrogation. Not harmless. Reasonable possibility it affected the verdict - State v. Powell, 998 So 2d 531(Fl. 2008) cert granted 129 S. Ct 2827(6-22-09)

Florida v. Simmons, 34 FLW 2352, 1st DCA, Trial court had the authority to dismiss the current charges against the def as a remedy for the state's refusal to comply with a settlement agreement under which it was agreed by the state, the def, and the victim of the crimes that def would be admitted to PTI and charge would be dismissed and victim would be paid restitution. (victim refused to sign the victim consent form after he was compensated)

Bailey, 34 FLW 2359, 1st DCA, Audio - recorded statement - Def statement to interrogating officers, not during Miranda warnings but during the statement, "Man, I don't rally want to talk about that", was not an unequivocal revocation of the prior waiver of the right to remain silent. Trial court id not err in admitting the audio-recorded statement





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

Law Updates for November 6, 2009

Santiago, 34 FLW 2206, 4th DCA - Court erred when it failed to permit the def to reopen his case so that false testimony presented by the state to demean the credentials of defense expert could be countered and corrected prior to the jury beginning its deliberations.

Brown, 34 FLW 2209, 4th DCA - Trial court used the 1.5 multiplier for presence of child in domestic case even when information failed to set forth the facts or statutory authority for such sentence enhancement.

Dunlap, 34 FLW 2215, 4th DCA - No error to deny mistrial based solely on one comment made by prosecutor during opening statement: discussion of jury's obligation to determine credibility of witnesses testimony, and single use of word "truth" in that context did not suggest that the jurors determination of who was telling the truth should be the sole basis of the jury's verdict.




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

Law Updates for October 30, 2009

Ransone, 34 FLW 2170, 4th DCA, Credit for time served in foreign jail. Def who was arrested in Miami Dade for numerous charges was not entitled to credit for time served in Miami from date of his arrest for an unrelated Broward VCC warrant where sentence received in Broward was consecutive and not concurrent with sentences imposed in Dade. Held on multiple offenses only entitled to credit for time served from the date of arrest in foreign county where concurrent sentences are imposed or foreign county warrant is the sole basis for the incarceration in the other county jail.

Arias, 34 FLW 2175, 3rd DCA, Self-defense Trial court erred in excluding evidence from the M.E. that victim had alcohol and cocaine in his blood at the time of the shooting. State opened the door to this evidence by attacking on cross-exam def's lay observation of victim's intoxication on theory that the def was not a qualified toxicologist, where def took the stand and testified that victim was behaving erratically, threatened to kill him, and appeared to be intoxicated and under influence of cocaine. Toxicology results were admissible under relevant evidence and not under theory of admissibility of character evidence. New Trial.



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

Law Updates for October 23, 2009

Conner, 34 FLW 2089, 2nd DCA, kidnapping - Def's act of attacking the 13 year old victim, knocking her to the ground, and choking her for a few seconds not kidnapping but false imprisonment. Def's actions had no significance independent of the attempted murder of the victim and amounted to a momentary restraint.

Parker, 34 FLW 2108, 3rd DCA, Possession of cocaine - collateral crimes - prior drug transaction. Error to permit state to introduce evidence that C.I. had purchased cocaine and marijuana from def on two prior occasions where prior transactions were totally unrelated to charged offenses. Nature of those differed from those of charged crimes. Not relevant to any material issue and priors were highly prejudicial.

Shootes, 34 FLW 2157, 1st DCA, New trial required where aggravated assault arose out of shooting of police officer, allegedly in self-defense, and many officers were in the court in official uniform at different stages. Created an unacceptable risk that their presence could effect the jury's deliberations. Def's counsel raised the matter and objected timely. Inherent prejudice to the def's fair trial and fundamental error and violation of due process. New trial

VFD, 34 FLW 2161, 1st DCA. Expungement of records - Trial court abused discretion denying without a hearing based on facts and circumstances of petitioner's case, including whether a gun was used during incident that led to petitioner's arrest. Remand for meaningful hearing.



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