Yaqubie, 35 FLW 1342, 3rd DCA, Immunity/Stand your ground law. Error to treat def's immunity claim as an affirmative defense and to deny motion to dismiss because material facts were at issue. Statute is true immunity provision which requires the trial court to adjudicate disputed fact issues rather than passing them on to the jury. Remand for the court to determine if def's immunity claim is supported by the preponderance of the evidence.
N.B. There is conflict in this state on this issue, and the 4th does not follow the 3rd DCA opinion. This isssue is on appeal right now to the Florida Supreme Court in Dennis v. State.
Link to the ACLU Summary of the 2009 Supreme Court Term
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, June 29, 2010
Friday, June 25, 2010
Law Updates for June 18, 2010
Vice, 35 FLW 1273, 1st DCA. Aggravated Child Abuse - error to admit testimony of def's former husband and former mother-in-law regarding their observations of the def shaking a different child 6 years earlier without injuring the child, where the evidence was not relevant to any material fact at issue in which this infant sustained injuries formerly said to characterize Shaken Baby Syndrome. Paucity of evidence; reasonable possibility that this evidence contributed to the conviction.
T.M., 35 FLW 1290, 4TH DCA, Pat down of juvenile during an investigatory stop was unwarranted and illegal. No facts or circumstances to warrant the pat down for officer who safety-stopped juvenile in high crime area at 11 a.m. based on suspicion they were unlawfully missing school or were about to commit a burglary or drug sale. Officer admitted the answers they gave dispelled any concern related to crimes. Ofc did not observe any bulges that resembled a weapon near the waistline where juvenile was moving his hands. Juv did not attempt to grab anything from his pockets and ofc had no info linking to juvenile criminal activity involving a weapon.
Dixon, 35 FLW 1298, 4th DCA, Warrant-less entry into a home. Police entered the apt without consent and without exigent circumstances to justify the entry. Failure to protest the entry did not constitute consent to enter. Ofc had duty to investigate a 911 call until he was reasonably satisfied that no urgency existed or once urgent situation was no longer urgent. Exigency dissipated once ofc received the official description of robbery from the victim, who was out of harm's way and thereafter the conversation occurred at the apartment door.
Shelden, 35 FLW 1316, 2nd DCA, Corpus delicti - Trial court erred in admitting def's statement to police where the state failed to prove C.D. State's evidence showed a firearm was discharged inside def's home. No evidence apart from the def's statements that the shots were fired wantonly and maliciously.
The Law Offices of Roger P. Foley, P.A.
T.M., 35 FLW 1290, 4TH DCA, Pat down of juvenile during an investigatory stop was unwarranted and illegal. No facts or circumstances to warrant the pat down for officer who safety-stopped juvenile in high crime area at 11 a.m. based on suspicion they were unlawfully missing school or were about to commit a burglary or drug sale. Officer admitted the answers they gave dispelled any concern related to crimes. Ofc did not observe any bulges that resembled a weapon near the waistline where juvenile was moving his hands. Juv did not attempt to grab anything from his pockets and ofc had no info linking to juvenile criminal activity involving a weapon.
Dixon, 35 FLW 1298, 4th DCA, Warrant-less entry into a home. Police entered the apt without consent and without exigent circumstances to justify the entry. Failure to protest the entry did not constitute consent to enter. Ofc had duty to investigate a 911 call until he was reasonably satisfied that no urgency existed or once urgent situation was no longer urgent. Exigency dissipated once ofc received the official description of robbery from the victim, who was out of harm's way and thereafter the conversation occurred at the apartment door.
Shelden, 35 FLW 1316, 2nd DCA, Corpus delicti - Trial court erred in admitting def's statement to police where the state failed to prove C.D. State's evidence showed a firearm was discharged inside def's home. No evidence apart from the def's statements that the shots were fired wantonly and maliciously.
The Law Offices of Roger P. Foley, P.A.
Wednesday, June 16, 2010
Law Updates for June 11, 2010
Ferrey. 35 FLW 1242, 3rd DCA. Hearsay - Court was correct to order a new trial where the victim and the detective referred to the victim's neighbor, a non-testifying witness. Statements of the non-testifying witness inferred that the witness had observed the defendant. The defendant's right to confront the witness was violated. The error was pervasive court; did not abuse discretion in ordering a new trial.
McNeal, 35 FLW 1261, 2nd DCA, Fact that the dog had been trained and certified, "standing" alone is insufficient to give officers probable cause to search based on dog's alert. Trial court must consider other factors, including dog's past performance in the field.
The Law Offices of Roger P. Foley, P.A.
McNeal, 35 FLW 1261, 2nd DCA, Fact that the dog had been trained and certified, "standing" alone is insufficient to give officers probable cause to search based on dog's alert. Trial court must consider other factors, including dog's past performance in the field.
The Law Offices of Roger P. Foley, P.A.
Wednesday, June 9, 2010
Law Updates for June 4, 2010
Blair, 35 FLW 311, Fla., Error for the court to order pretrial detention based on def's failure to appear without finding that the failure to appear was willful and without determining whether conditions of release were appropriate as delineated in 907.041.
Miller, 35 FLW 1177, 4th DCA, Jury instructions - Trial court erred in refusing to give requested instruction on affirmative defense of lack of knowledge that substance he possessed was cocaine where def presented some evidence in support of defense.
Gestewitz, 35 FLW 177, 4th DCA, Police unlawfully detained the def outside of a bar after an argument with a bartender for the purpose of issuing a written trespass warning. Officer had no lawful purpose to detain the defendant because at the time he was detained there was no reasonable suspicion that the def committed the crime of trespass and the warning is a prerequisite of the crime. Def should have been given a verbal warning and allowed to leave with a friend.
Gonzalez-Ramos, 35 FLW 1203, 5th DCA, Trial court lacked jurisdiction to find the def in violation of probation where affidavit was filed and warrant issued after the term of probation expired. Probationary term was NOT tolled for the period of time between the issuance of the warrant and hearing on two prior violations where trial court did not extend the term of probation each time he violated, but simply continued(reinstated) the probation.
The Law Offices of Roger P. Foley, P.A.
Miller, 35 FLW 1177, 4th DCA, Jury instructions - Trial court erred in refusing to give requested instruction on affirmative defense of lack of knowledge that substance he possessed was cocaine where def presented some evidence in support of defense.
Gestewitz, 35 FLW 177, 4th DCA, Police unlawfully detained the def outside of a bar after an argument with a bartender for the purpose of issuing a written trespass warning. Officer had no lawful purpose to detain the defendant because at the time he was detained there was no reasonable suspicion that the def committed the crime of trespass and the warning is a prerequisite of the crime. Def should have been given a verbal warning and allowed to leave with a friend.
Gonzalez-Ramos, 35 FLW 1203, 5th DCA, Trial court lacked jurisdiction to find the def in violation of probation where affidavit was filed and warrant issued after the term of probation expired. Probationary term was NOT tolled for the period of time between the issuance of the warrant and hearing on two prior violations where trial court did not extend the term of probation each time he violated, but simply continued(reinstated) the probation.
The Law Offices of Roger P. Foley, P.A.
Friday, May 21, 2010
Law Updates for May 14, 2010
J.M., 35 FLW 1103, 3RD DCA, Juveniles - Statement of juvenile in which he revealed his date of birth that was relevant to the case was properly admitted even if given pre-Miranda. Basic biographical information, and Miranda does not apply to a question to obtain basic booking information
Harris, 35 FLW 1007, 1st DCA, Other crimes evidence. Prosecution witness' non-responsive statement during cross that he changed his earlier statement to wit the def was not involved in the fraud as there was a warrant out for the def for a different offense, and witness did not believe the def's testimony in the matter was improper and irrelevant - harmful error.
The Law Offices of Roger P. Foley, P.A.
Harris, 35 FLW 1007, 1st DCA, Other crimes evidence. Prosecution witness' non-responsive statement during cross that he changed his earlier statement to wit the def was not involved in the fraud as there was a warrant out for the def for a different offense, and witness did not believe the def's testimony in the matter was improper and irrelevant - harmful error.
The Law Offices of Roger P. Foley, P.A.
Wednesday, May 5, 2010
Law Updates for April 30, 2010
S.D.T. 35 FLW 879, 4th DCA, BOLO - Contents of BOLO Dispatch received by arresting officer were non-hearsay and were admissible to establish an element of the crime of resisting arrest without violence. BOLO not offered to prove the truth of its contents, but to establish the officer was engaged in the lawful execution of a legal duty when he commanded the juvenile to stop and the juvenile fled.
E.L.F., 35 FLW 883, 4th DCA, Self-defense - Error to deny JOA where juvenile presented evidence that he became involved in altercation as Good Samaritan when he attempted to stop the male victim from striking a woman, and that he acted in self-defense after victim began swinging at him and state's testimony was legally insufficient to rebut the testimony that the juvenile was acting in self-defense.
WHITFIELD, 35 FLW 915, 5th DCA, Automobile stop - Prolonged detention in writing citation after traffic stop for speeding - Error to deny motion to suppress drugs which were discovered when dog alerted on vehicle, where the officer detained the defendant for almost 30 minutes before issuing the citation, and dog search did not begin until after the citation had been issued and the purpose of the traffic stop was completed. Absent an articulable suspicion of criminal activity, the time the officer takes to issue the citation should last no longer than is necessary to make any required license or registration checks and write the citation. Completed traffic stop cannot be extended to conduct a dog sniff search, even if the delay is de minimis. WELL WRITTEN OPINION
Riles, 35 FLW 930, 1st DCA, Robbery - Trial judge should have given request for a special instruction for the "afterthought" defense. Force was done as to another offense and not the theft offense which was completed.
Nicholson, 35 FLW 931, 1st DCA, Trafficking in Hydrocodone, Constructive possession - State failed to prove, through circumstantial evidence or otherwise, that def knew the hydrocodone was hidden in a leather change purse on the living room coffee table next to the couch where defendant, his brother, and their girlfriends were sitting, even though leather change purse was in plain view. No record of evidence that the incriminating nature of the packaged contraband was immediately apparent. Requirement of plain view analysis.
The Law Offices of Roger P. Foley, P.A.
E.L.F., 35 FLW 883, 4th DCA, Self-defense - Error to deny JOA where juvenile presented evidence that he became involved in altercation as Good Samaritan when he attempted to stop the male victim from striking a woman, and that he acted in self-defense after victim began swinging at him and state's testimony was legally insufficient to rebut the testimony that the juvenile was acting in self-defense.
WHITFIELD, 35 FLW 915, 5th DCA, Automobile stop - Prolonged detention in writing citation after traffic stop for speeding - Error to deny motion to suppress drugs which were discovered when dog alerted on vehicle, where the officer detained the defendant for almost 30 minutes before issuing the citation, and dog search did not begin until after the citation had been issued and the purpose of the traffic stop was completed. Absent an articulable suspicion of criminal activity, the time the officer takes to issue the citation should last no longer than is necessary to make any required license or registration checks and write the citation. Completed traffic stop cannot be extended to conduct a dog sniff search, even if the delay is de minimis. WELL WRITTEN OPINION
Riles, 35 FLW 930, 1st DCA, Robbery - Trial judge should have given request for a special instruction for the "afterthought" defense. Force was done as to another offense and not the theft offense which was completed.
Nicholson, 35 FLW 931, 1st DCA, Trafficking in Hydrocodone, Constructive possession - State failed to prove, through circumstantial evidence or otherwise, that def knew the hydrocodone was hidden in a leather change purse on the living room coffee table next to the couch where defendant, his brother, and their girlfriends were sitting, even though leather change purse was in plain view. No record of evidence that the incriminating nature of the packaged contraband was immediately apparent. Requirement of plain view analysis.
The Law Offices of Roger P. Foley, P.A.
Monday, April 26, 2010
Law Updates for April 23, 2010
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.
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.
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