Happy Halloween Friday

Remember when law offices used to throw big Halloween parties? The staff would all dress up, there would be eyeball punch served by provocatively-clad witches and/or other assorted vixen, and everyone would get to see how goofy everyone else looks?

Boy those days are gone.

Even the lawyer-sponsored private Halloween bashes are growing rarer and rarer, as tightening budgets are making us decide between that big Halloween party and the monthly Porsche payment.

Oh well. It's still a festive holiday, and one in which I plan to partake fully. Indeed, I plan to break out my white pants suit, find my burnt orange wide-collared shirt, and hopefully locate a friendly barkeep to help me pass the time and engage in light, casual banter as I boozily play the piano into slow blissful oblivion.

Either that or I'll take in a movie.

And what are your plans? Whatever you do have a safe, happy, and healthy Halloween!

SFL Friday -- Responding to Annoying Letters Edition

Sheesh I'm all over the map today, how about you?

It's been one hail of a week, I'm looking to blow off some steam, and I'm gonna try to get myself grounded, rested, and relaxed over the next few days.

But first I have to respond to a nasty letter some whippersnapper at Hunton & Williams wrote me, you know how they can be sometimes! I may have to put on my Chris Carver game face for a few minutes, but usually I try to tone it all down by the time the missive leaves the desk.

Let me see if I can find something to put me in a proper writing mood, ok found it -- hit it Robert!

There, I feel much better now.

I'll check back once I knock this sucker out.

October 24, 2008

Thomas, 33 FLW 2439, 1st DCA, Hearsay-error to admit e-mail written by one employee of apt complex to another employee which stated that the resident victim called and said that she's had someone(def) living in her apt for the past year that is not on the lease and now she wants him out, but he refuses to lease-two levels of hearsay-e-mail is hearsay out-of-court statement being offered for the truth of the matter asserted-statements made by victim to author of e-mail were also hearsay-victim's statements do not qualify for hearsay exception in their own right-harmful error reasonable possibility it contributed to def's conviction

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

October 17, 2008

Santiago, 33 FLW 2363, 2nd DCA, Poss of hydrocodone-constructive possession-state failed to prove that the def had knowledge and dominion and control over drugs which were concealed in the residence where a number of people lived in and had access to the residence-mere fact that some contraband in plain view does not permit the inference that def knew of all the quantities of hidden contraband

S.L., 33 FLW 2365, 4th DCA, trial court erred when it relied on mother's prior inconsistent statement to deputy as sole evidence supporting its finding of guilt on simple assault charge-deputy's testimony as to mother's statements cannot be used to support finding of guilt because those statements were not given under oath at trial, hearing or other proceeding

Kessler, 33 FLW 2378, 4th DCA, Statements of the defendant-error to admit into evidence a tape recording of a phone call def made to his alleged drug source upon the request of police during custodial interrogation after def was given an incomplete Miranda warning that failed to advise the def that he had to right to have an attorney present during interrogation, taint from incomplete Miranda warnings, request that the def reveal drug source and place phone call required complete Miranda warnings-error in admitting recorded phone call was not harmless and def's tape recorded conversation with his alleged drug supplier was an incriminating testimonial communication which tended to show the def's knowledge of drug trade and method of operation

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

October 10, 2008

Williams, 33 FLW 2319, 3rd DCA, other crimes, wrongs or acts, def charged with 3 separate armed robberies, and firearm expert determined that bullet casings removed form all 3 guns were forced from the same weapon, even though the robberies may not have been similar in nature can admit facts of robberies into each trial as there was witness identification for all the robberies, should be admitted to establish identity, test for admissibility is relevancy not necessity

Chamblin, 33 FLW 2353 1st DCA, DUI Manslaughter-Comment on def right to remain silent-prosecutor impermissibly commented on def Post-miranda silence in emphasizing to the jury that the def at any time prior to his first trial, offered the exculpatory explanation he gave a trial-on cross at first trial got the def to tell the jury this is the first time he ever told anybody that the victim deceased passenger had grabbed his wheel causing the vehicle to flip and period between the accident and the first trial referred to by prosecutor necessarily included extended period after the def received his Miranda warnings, prosecutor told jury def had the ability to tell paramedic to shift the blame for the accident to his friend and waited a year to do that focused the jury's attention on the entire first year after the accident, which included an extended post-miranda period

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

October 3, 2008

Powell, 33 FLW 778, Fla, Miranda was deficient as def was not unequivocally informed informed that he had a right to an attorney present during custodial questioning here (a) right to talk to a lawyer before questioning and (b) right to use the right to consult a lawyer at any time during questioning-error not harmless-court decision is not retroactive

Deparavine, 33 FLW 784, Fla, Spontaneous statement exception to hearsay (long discussion), must be made at time of, or immediately following, declarant's observation of the event or condition described, must be made, without reflective thought and are limited to statements which "describe or explain" an event-present circumstances

Maldonado, 33 FLW 2303, 2nd DCA, Search and Seizure-Vehicle-Stop-where state conceded at suppression hearing that ofc detention of def following stop for malfunctioning brake lights and inoperable tag light was unreasonably prolonged, appellate court must assume that officer detained def for period longer than necessary to issue warning-def's lying, nervous behavior and presence on interstate which was a known drug corridor in the early morning hours did not establish reasonable suspicion of criminal activity to justify continued detention-error to deny motion to suppress-could not be convicted of RAWOV where ofcs who stopped the vehicle and other officers who assisted him in subduing the def were not engaged in the lawful execution of a legal duty at the time of the alleged resisting

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

September 29, 2008

T.G., 33 FLW 2201, 3rd DCA, where state provided late discovery to the defense, court did not err in finding material prejudice to def, granting motion for continuance to be charged to the state and subsequently discharging the juvenile under the juvenile speedy trial rule, in appropriate circumstances a def continuance does not waive the speedy trial rule where there has been an inexcusable delay in providing discovery.

Bartling, 33 FLW 2204, 4th DCA, search and seizure residence, residence, consent, under totality of circumstances. trial court did not err in granting motion to suppress drugs found in def's studio apt where ofcs asked for consent to search for a dead body, although they were following a tip that drugs were being sold out of the def's apt-def's desire to clear his name of a stigma of a murder accusation was circumstance for trial court to consider-search of cigarette pack clearly exceeded scope of consent to search for a dead body

Remor, 33 FLW 2209, 4th DCA, Att burglary, Def's reasonable hypothesis of innocence was that his employer sent him to hurricane zone his employer sent him to hurricane zone to seek work during clean up process, that he was in the shopping plaza to ride out the storm when he encountered the police officer and that he ran away because his co-def ran-def's claims were partially supported by his employer's testimony, no physical evidence connected def to the two boards removed from a shopping plaza store window, gloves, short worn around his neck, miner's light were not burglary tools as no intent they were being used to commit a burglary

Resh, 33 FLW 2233, 5th DCA, trial court did not abuse discretion in downward departure from the guidelines on ground that the def's capacity to appreciate the criminal nature of his conduct or conform his conduct to the requirements of law was substantially impaired, where evidence supported finding that def judgment and decision making were at the same level as an elementary school child and def suffered from severe mental deficiencies

King, 33 FLW 2225, 5th DCA, Modification of sex offender probation-def failure to provide a suitable residence address prior to release from prison did not constitute a willful and substantial violation of condition of Sexual Offender probation from living within 1000 ft of designated places where children regularly congregate, where the def had not yet been released from prison, error to modify probation to require that the def reside in county jail for 11 months and 29 days, or until such time as def had a suitable residence

Weyant, 33 FLW 2231, 2nd DCA, dismissal-ccf-no error in dismissing CCF based on finding that unloaded firearm wedged between the tow front seats of the vehicle was "not readily accessible for immediate use" where ammunition was inside closed center console of vehicle

J.L.H., 33 FLW 2233, 2nd DCA, Resist ofc without violence-Flight-Juvenile could not be guilty of resisting an office by flight because, even thought juvenile knew of ofc intent to detain him when he ran from the officer, ofc was not executing a legal duty-no basis to detain juvenile where the burglary investigation had concluded prior to juvenile's identity and ofc provided no testimony to indicate that he had reasonable suspicion that juvenile was committing, had committed or about to commit a crime

Culver, 33 FLW 2236, 2nd DCA, Trafficking in cocaine-Constructive possession-where def was driving vehicle in which a passenger was present, and the passenger remained inside the vehicle when def was asked to step outside the vehicle after a traffic stop, insufficient evidence to establish that def had the knowledge of presence and dominion and control of a bag of cocaine found behind the passenger seat-actual possession of powder cocaine in pocket she handed to ofc upon arrest under trafficking amount insufficient to establish constructive possession of trafficking amount

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

September 19, 2008

Bolware, 33 FLW 645, Fla, plea not involuntary as the result of court not advising the def during the plea of the possibility of DL suspension-Supreme Court recommends an amended rule of procedure that def should be advised during the plea of that possibility

Calabro, 33 FLW 656, Fl, Statements made by def at arraignment indicating his desire to engage in plea negotiations, and admitting guilt, were not admissible against him at trial-def's statement made after he stated he would like to avoid trial was a statement made in reference to the offer of a plea and his statements were inadmissible

****Baptiste, 33 FLW 262, Fla, Anonymous tip-long case very good for the defense-should print for your files

Johnson, 33 FLW 2143, 4th DCA, evidence was insufficient to support conviction for resisting with violence where state evidence at trial failed to establish that the alleged resistance took place either during an arrest or lawful detention-investigatory stop of def when police ordered him to remove his hands from his pockets, place them on the wall, and open his closed fist was not supported by reasonable suspicion of criminal activity where, prior to ordering the def to remove his hands from his pockets, police only knew def had rolling papers in his pocket-no evidence prior to the struggle def was told he was under arrest, encounter brief and rapidly escalated into fight or struggle

Wong, 33 FLW 2148, 3rd DCA, Vehicle Stop-BOLO regarding a vehicle for burglary, which described an Hispanic male driving a silver or gray BMW, provided ofcs with reasonable suspicion to stop vehicle, a silver BMW occupied by the def and another Hispanic Male at a location where the ofc believed they would exit Miami Beach in light of location of the burglary and relevant traffic patterns, Gelin, 844 So. 2d 659(3rd DCA 2003)

T.B., 33 FLW 2155, 4th DCA, Juveniles-Stalking. evidence was sufficient to sustain conviction of MM Stalking, where juvenile taunted the victim with offensive words on three different occasions within a ninety minute period at his place of work-rational trier of fact could find that elements of willfulness, malice, repeated harassment and emotional distress have been established beyond a reas doubt

Camaralengo, 33 FLW 2157, 4th DCA, error to deny admission of an application for title to trailer from a landscape maintenance company, because document was not hearsay and was admissible because it was not offered for the truth of its contents and was relevant-offered to show that the def had a good faith belief that passenger owner the trailer, tending to disprove element of intent to steal, based on jury's questions and request to twice to view the documents, not harmless error

Morris, 33 FLW 2171, 2nd DCA, Tampering with physical evidence, evidence at trial did not support the verdict where ofc's observed plastic bag containing cannabis in def's mouth during lawful stop of def bicycle, ofcs placed him under arrest and asked him to spit out the bag and after several requests the def spit out the bag-reduced to attempted tampering of evidence


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

September 12, 2008

Sinclair, 33 FLW 2091, 3rd DCA, Arresting ofc's testimony was sufficient to identify substance seized from defendant as crack cocaine-sufficiently experienced ofc may opine regarding the identity of crack cocaine in VOP hearing

Pantoja, 33 FLW 2114, 1st DCA, Impeachment- L & L molestation-trial court properly excluded evidence that victim recanted a prior accusation against another person-evidence was properly excluded under rule that a witness credibility may not be attacked by proof she committed specific acts of misconduct that did not result in a criminal conviction-exclusion of evidence did not violate def's right to confrontation of witnesses-conflict certified-Jaggers 536 So. 2d 327(2nd DCA)

Evans, 33 FLW 2119, 5th DCA, once resident informed that a duffel bag belonged to a third person, it was not objectively reasonable for ofc to search the duffle bag without making further inquiry-resident of apt did not have apparent authority to consent ot search the contents of a duffel bag where resident did not have common control or mutual use of the duffel bag

C.E.L., 33 FLW 2120, 2nd DCA, En Banc, Resisting, obstructing an officer without violence, 843.02, police commanded the def to stop was issued in lawful performance of a legal duty and def's knowing defiance of the command was an act of resisting-a person who knowingly fails to heed a police order to stop is guilty when an order to stop is justified under Wardlow, which held unprovoked flight in a high crime area was suggestive of wrongdoing and provided reasonable suspicion justifying an investigatory detention, offense under 843.02 is committed when the person fleeing defies a lawful order even if justification for detaining does not exist and initial flight is not a crime

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

September 5, 2008

M.G., 33 FLW FLW 2046, 1st DCA, Giving false name or identification to LEO, 901.36(1), Common law defense of recantation-defense does not apply in this case because juvenile did not recant false information until after she was arrested-good discussion

Bouie, 33 FLW 2054, 4th DCA, evidence-other crimes-error to admit evidence of other purse snatchings near parked cars, shared, at best, only a general similarity to def's case and suggested little more than propensity and bad character-not harmless-error to admit evidence of firearm found in auto jointly occupied by the def and someone else where none of the charges concerned a firearm

Deans, 33 FLW 2064, 5th DCA, ID-trial court erred in admitting testimony of detective regarding witness out-of-court id of def where the witness who made the id was not asked about def identity at trial

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

August 29, 2008

Rachel, 33 FLW 2021, 4th DCA, search and seizure, ofc decision to come in contact with def in parking lot of strip club to determine why thy the def left the vehicle in the aisle, instead of pulling into parking spot, before exiting his vehicle became investigatory stop when ofcs pulled def back to the vehicle-no well-founded suspicion of criminal activity necessary to justify detention where they did not witness a crime occur and positioning of vehicle did not block traffic-drugs found almost immediately after illegal detention, no break in chain of illegality sufficient to dissipate the taint

Watson, 33 FLW 2022, 4th DCA, in light of def failure to subpoena a witness and he does not appear for trial defense can't get a writ of attachment or get a motion for continuance when the witnesses needed did not respond to the subpoena by the state-even if testimony was essential to the case

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

August 22, 2008

Ochacher 33 FLW 1977, 4th DCA, Collateral crimes-error in allowing testimony about def suspended license at time of charged offense was harmless given totality of evidence, including uncontradicted direct observations of defendant by the officers-Felony DUI case-see dissent

Nelson, 33 FLW 1989, 5th DCA, PRR-Qualifying offenses, Error to impose PRR on Battery of person over 65-not enumerated felony and does not contain essential element of use of threat or physical force or violence against the individual, same as Batt LEO, Hearns, 961 So. 2d 211(Fla. 2007)

Alcantar, 33 FLW 1998, 2nd DCA, Trafficking in cocaine-ID-Trial court abused discretion in permitting inadmissible hearsay and improper or irrelevant character evidence to buttress undercover officer's id of person who sold him cocaine-trial court decision to admit in irrelevant evidence and prejudicial testimony that a 2nd ofc knew the def from his long experience in law enforcement and to admit into evidence the improper hearsay testimony that c.i. identified defendant as person who sold the drug were against the rules of evidence and an abuse of discretion-2nd ofc did not witness the drug transaction or have contact with the def during the transaction, his ability to ID the def in court was of little or no probative value-not harmless-new trial

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

August 15, 2008

Gorham, 33 FLW 1930, 4th DCA, PRR, not apply to offense of burglary of conveyance with assault or battery as could have been committed with mere unlawful touching during burglary, offense does not necessarily include "threat or use of physical force or violence" necessary to qualify under catch-all provision of statute

Modeste, 33 FLW 1951, 5th DCA, en banc, Statements of defendant-error to suppress inculpatory statement made by def during interrogation on grounds that Miranda warnings given to def were insufficent to apprise him of his right to have counsel present during investigation on videotape def was told that the document simply stated that we read you your rights but def was given virtually no opportunity to read waiver form prior to signing his name-Even though Miranda warnings were adequate and he did not have to be expressly informed has the right to counsel present during interrogation-Conflict certified-Officer' statement that "of course....you can talk to an attorney first before talking to us" did not render Miranda warnings invalid by suggesting that def had right to counsel prior to interrogation but not during interrogation

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

August 8, 2008

Holt, 33 FLW 1868, 1st DCA, trial court erred after refusing to strike jury after they were made aware of another robbery against the def that was severed thereafter

Joseph, Jr. 33 FLW 1869, 1st DCA, Double jeopardy-manifest necessity(no) declared mistrial without def's consent, state's loss of audio recording of def phone call to police station after accident and inability to locate the witness who observed the def make the call did not create manifest necessity requiring mistrial-trial court failed to consider continuing order or other alternatives to mistrial

Davalos, 33 FLW 1869, 3rd DCA, where def rejected state's plea offer and then entered open plea to court, and court imposed a much harsher sentence than the state's offer, court abused discretion in denying def's motion to withdraw the plea

Muir, 33 FLW 1880, 4th DCA, Error to refuse to allow the def to submit evidence of the reputation of the victim for truth and veracity in the community-not harmless where the V was the only person who identified the def as the person who shot him and entire defense was based on the v's credibility

Dyess, 33 FLW 1908, 1st DCA, Search warrant-controlled buy from def in parking lot did not provide pc for issuance of the warrant for search of def's residence where facts in supporting affidavit did not establish fair probability that list of items to be searched for would be found there-good faith exception to exclusionary rule was not applicable where supporting affidavit failed to establish pc to justify search

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

August 1, 2008

Davis, 33 FLW 188, 4th DCA, Burglary occupied structure-when def lawfully in open convenience store, then went into employees only room and took $400, conviction for burglary of a structure improperly enhanced to burglary of an occupied structure, statute unclear if it is occupied, 775.021(1) with these facts rule of lenity in favor of the accused, Johnson v. State held that theft in a non-public area is burglary of structure ambiguity whether crime could be for an occupied structure

Morris, 33 FLW 1851, 5th DCA, Prosecutor argument that an innocent person would have spoke up and protest his innocence improperly shifted the burden by arguing an innocent person would have taken the breath test to prove his innocence-new trial-you think

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

July 25, 2008

Shreith, 33 FLW 1784, 4th DCA, self-defense-trial court correctly sustained objection to 911 calls originating from convenience store where def worked to establish facts which would help jury understand the self defense claim by demonstrating what the def was thinking at the time of the incident-calls were hearsay and no evidence that def knew of the previous incidents reflected in calls-no error in precluding def from questioning detective about police reports about three prior incidents involving encounters between the def and third parties-prior incidents not sufficiently similar to crime charged to have any probative value with regard to reasonableness of def's conduct with victims in this case

Thompson, 33 FLW 1793, 3rd DCA, police stopped def vehicle fit the description of person who committed armed robbery, arrested for DUI transported to DUI intake room and refused to submit to breathalyzer test, immediately invoked Miranda, trial court properly suppressed the confession which was given to the detective who initiated questioning after the def spent the night in jail-when invoked right to counsel not invoking it as to whether or not to blow into the machine-invoked Miranda in DUI intake room, could not be questioned as to any matter-fact that police initiated questioning in jail creates a presumption of coercion in def subsequent waiver and does not dissipate the statement with the later reading of Miranda

Stephens, 33 FLW 1814, 2nd DCA, L & P, evidence that the def was in parking lot of closed business in early morning hours and moved into shadows and crouched behind a car when saw patrol car was sufficient to prove that def was loitering and prowling in manner not usual for law abiding citizens-state failed to prove second element, that his conduct did not warrant a justifiable and reasonable alarm or immediate concern for safety of persons or property located in the vicinity- fact that ofc subsequently discovered evidence of other crimes does not alter court's analysis, L & P must be complete before any police action occurs-discharge def for L & P

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

JUly 18, 2008

Davila, 33 FLW 1715, 2nd DCA, evidence that the def was present at the scene of robbery committed by others and def had knowledge that the robbery was about to be committed was insufficient to sustain the conviction where there was no evidence that the def committed any act to assist or abet the others in committing robbery-error deny JOA

Wilson, 33 FLW 1734, 3rd DCA, state impermissibly commented on def's right to remain silent at end of closing argument, no merit to state's contention that statement did no more than state the obvious, case law in accord

Cohen, 33 FLW 1740, 3rd DCA, Perjury conviction reversed where elicited testimony constituted an opinion, which is an inappropriate basis to support perjury conviction

Lee, 33 FLW 1760, 1st DCA, error to deny dispositive motion to suppress incriminating statements made by def in his home to deputy sheriff-Def was in custody for Miranda purposes where seventeen year old def was subject of investigation for having a sexual relationship with underage girl and was kept out of school to submit to questioning; purpose of interrogation was to obtain incriminating statements; although parents were initially present, deputy had them step outside, leaving deputy to question def alone; manner if interrogation was insistent, authoritative, and repetitive; def was confronted with evidence of guilt when deputy stated victim first lied then admitted that she and the def had sex, and deputy had obtained bed sheets and underpants from the victim, and deputy never advised the def of Miranda rights or took any measures to mitigate coercive aspects of questioning, such as informing the def he was free to leave or that he could terminate questioning

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

July 11, 2008

Kasischke, 33 FLW 481, S. Ct., sexual offender probation, 948.03(5)(a)(7) prohibits one on probation or c.c. from viewing, owning or possessing any pornographic....including computer services that are relevant to offender's deviant behavior-error to revoke c.c. for violation of this condition where pornographic materials(adult) possessed by def did not relate to his deviant behavior(15 year old and oral sex), Legislative History

Wyche, 33 FLW 509, Fla, consent-voluntariness, totality of circumstances the court did not err in denying the motion to suppress to suppress saliva swabs and DNA test results, although police investigator, who at the time was investigating a sexual assault case in which def was ultimately exonerated obtained def consent by telling him his DNA was needed in the investigation of a fictitious burglary and eventually charged in another burglary case based on the sample received-circumstances did not involve any threat or promise that might have induced def's consent-district court ruling not in conflict with a 4th DCA ruling where a trial court found that the def's consent was coerced because in that case, investigating officer told the def he was a suspect in a rape, which was fictitious and that a saliva sample would exclude him from a rape investigation-stigma of rape investigation is circumstance to consider whether the consent was voluntary or coerced, McCord, 833 So. 2d 828(4th DCA 2002)

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

July 4, 2008

Strohm, 33 FLW 1645, 4th DCA-prior acts of child molestation-def entitled to new trial where state was permitted to introduce testimony of victim of rape for which the def was previously convicted-rape committed 17 years before and was a stranger to the def and whom def vaginally penetrated was substantially dissimilar to the instant case, which involving the def sexually abusing his eight year old daughter in a form other than vaginal penetration over a eight month period

Hosang, 33 FLW 1646, 4th DCA, prosecutor's comments suggesting reasons why victims of home invasion robbery might not have noticed the def's tattoos were improper given that the case involved contested id was not harmless(why left out of the testimony of the def was that he got the tattoos 18 months later)

Burgos, 33 FLW 1672, 3rd DCA, release c.i., court erred in ordering the state to disclose the identity of the c.i. where def provided neither allegations or evidence that the detective falsified evidence in his affidavit in support of search warrant and def provided nothing to suggest that disclosure is essential to the fair determination of the cause-bare allegation that def cannot prepare his case without the disclosure of the c.i. is insufficient

Napoleon, Jr., 33 FLW 1678, 1st DCA, vehicle stop-traffic infraction(cutting in front a vehicle and inoperative license plate light)-continued detention for twenty minutes in order for a sniffing dog to arrive-no traffic citation written-field interview of vehicle occupants was illegal-no justification for the continued detention was illegal despite the tattoos on def's cheeks and tow people in the back seat having matching bandannas-cites cases

Fowler, 33 FLW 1679(1st DCA), sexual battery-child under 12-no error in denying JOA where victim could not point out the def in court where there was circumstantial evidence concerning the identity of the perpetrator sufficient to support the conviction

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

June 27, 2008

Oliver, 33 FLW 1582, 2nd DCA, Plain view of someone's backyard after anonymous tip with no reasonable suspicion to support warrant less entry into a backyard surrounded by a chain-link fence-saw def drop a baggie and other move hands in furtive motion-unable to id baggie's contents with certainty from her vantage point outside the fenced yard and illicit nature of the baggie was not immediately apparent and only discoverable upon closer inspection after warrant less entry

Armstrong, 33 FLW 1594, 3rd DCA, Violation of plea agreement-cooperate by providing truthful testimony consistent with his sworn statement info on a co-def participation in a drug trafficking case-def not breech a plea agreement by writing a letter to co-def he had earlier implicated, advising the co-def to go to trial as he would take the blame-plea agreement did not have condition of no contact with the co-def, state decision not to elicit def testimony in co-def trial because def letter created impeachment material is not evidence that def breached the plea agreement

Herrera-Fernandez, 33 FLW 1604, 4th DCA, error to deny motion to suppress found in def garage during a warrant less search where def did not consent to LEO entering the home and no exigent circumstances were found to exist-unreasonable seizure violated the 4th A.

Tribble, 33 FLW 1608, 4th DCA, trial court imposed unlawful sentence when it withheld adjudication and imposed court costs-withhold adjudication can only be done in a felony case where the person is placed on probation

Joseph, 33 FLW 1610, 4th DCA, voir dire challenge for cause should have been upheld where def went into trial with a presumption of guilt, reversible error, where def had to take an objectionable juror as he had to use a strike, even though juror said he could be fair and impartial coupled with above statement there was reasonable doubt as to juror's ability to believe the def was presumed innocent

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

June 20, 2008

M.D.S., 33 FLW 1502, 2nd DCA, evidence that the def observed juvenile in a parking lot of an apt complex wiping passenger door handle of a parked vehicle with a cloth, computer check revealed vehicle was stolen, car keys found in juvenile's pocket, and that the hood of the car was hot, recently driven and parked insufficient to support adj. of delinquency for GT of motor vehicle. Evidence did not exclude def reasonable hypothesis of innocence that he found keys in the parking lot and pocketed them with the intent to return them to the complex management

Nunes, 33 FLW 1503, 2nd DCA, trial court erred in denying the def statement made to the detectives and Asst. State Attorney during plea negotiations where the def made his statement with subjective require that the plea bargain be completed or written agreement begin before negotiations be excluded from evide

Washington, 33 FLW 1512, 4th DCA, no error in trial court's denial in reference to false police report, filed by victim in unrelated matter-90.610 authorizes impeachment with only prior convictions-court declined to adopt false reporting exception to that general rule, 1st District agrees, 2nd District disagrees, certified to Fla. Sup. Ct.

Matul, 33 FLW 1514, 4th DCA, search and seizure-where def walked away from group of men and threw a water bottle as officers approached, and one of the officers inspected the bottle, ultimately finding that the bottle contained a hidden compartment with crystal meth, trial court erred in granting def motion to suppress

Soto, 33 FLW 1526, 4th DCA, Agg Assault, Limitation of actions, error to deny Motion to dismiss where the statute in effect at the time of the incident required the state to commence the prosecution for any felony within 3 years of the commencement-under the old statute prosecution did not commence until state executed the capias without unreasonable delay and if def asserted that court was required to consider the state's attempts to locate the def as well as the def's absence from the state-state failed to offer any evidence to contradict the def's assertion that capias did not toll statute of limitations because it was not served and state did not make a diligent effort to locate him-remand to discharge the defendant

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

June 13, 2008

Young, 33 FLW 1445, 4th DCA, consensual encounter, error to deny motion to suppress marijuana found on the def where encounter was not consensual and there was no reasonable suspicion or pc to justify the stop-def expressed a clear desire not to engage into a consensual encounter when he walked away from the officer who was hailing him-where def ignored one ofc and walked away and another ofc obstructed the def's movement while the first ofc continued to call him over, encounter was not consensual, as reasonable person would not feel free to leave

Lindo, 33 FLW 1446, 4th DCA, Trafficking in Marijuana-package detention-UPS-temporary detention of package at UPS for a dog sniff was not unreasonable as to interfere in any meaningful way with the def packages, not a seizure within the meaning of the 4th A.-no seizure state did not have to establish reasonable suspicion-dog sniff not a search and 4th A. not implicated

Caldwell, 33 FLW 1485, 4th DCA, search and seizure-mere administration of Miranda warnings to potential suspect with whom the officer is engaged in consensual encounter does not, by itself, transform that encounter into investigatory stop-conflict certified, see Raysor 795/1071(4th DCA 2001)

Hines, 33 FLW 1493, 1st DCA, robbery with firearm-collateral crimes-where def was subsequently acquitted by a jury in another prosecution for possession, on the date of the armed robbery at issue in this case, of a firearm by a convicted felon, admission of evidence that defendant possessed the same firearm on the date of the robbery requires reversal of the conviction and remand for a new trial-question certified


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

June 6, 2008

Luyao, 33 FLW 1406, 4th DCA, trafficking in oxycodone, trial court erred in allowing state to present evidence regarding def's legal gambling for purpose of motive in trafficking as state to draw sufficient connection made between the gambling and alleged trafficking

McNeil, 33 FLW 1417, 2nd DCA, patdown-vehicle passenger-ofc did not have the authority to search the passenger in lawfully stopped vehicle for weapons absent reasonable belief that the passenger was armed and dangerous-error to deny the motion to suppress

Dubon, 33 FLW 1429, 1st DCA, statements of defendant-error to deny motion to suppress custodial statements where def said at least three times during custodial interrogations, "I have nothing to say" but officers continued to question him until he confessed-def's statement sufficient to invoke right to remain silent

Leroy, 33 FLW 1434, 1st DCA, ofc did not have reasonable suspicion to justify detention of the defendant for trespass investigation where def was sitting in his vehicle in area known for drug activity-officer "lit up" def's vehicle, approached def in confined space between two vehicles while in uniform. and was joined by 2 other officers. def was seized. seizure not lawful where there was no reasonable suspicion the def was committing, had committed or was about to commit a crime-fact that the def was sitting alone in a high crime area, standing alone was insufficient to establish reasonable suspicion-def consent to search was fruit of illegal police conduct was rendered involuntary

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

May 30, 2008

McDonnell, 33 FLW 1337, 1st DCA, where police went to private residence at 4 in the morning and asked for consent to search residence def refused consent to give consent to search, other ofcs remained at the scene when one ofc went to get a search warrant, and ofc asked for and received consent to search before the warrant was obtained, consent not voluntary(well-written opinion), totality of circumstances encounter took place at early morning lasted between one and a half and two hours, four officers present, because there was pc for issuance of the warrant for the residence ofc in process of obtaining the warrant when def consented ofc would have inevitably discovered evidence seized from the residence-GOOD DISSENT AS TO THIS ISSUE

Ellison, 33 FLW 1385, 2nd DCA, error to deny JOA where state failed to prove that def used deception or intimidation with intent to deprive elderly person of his funds, assets or property

T.R.T., 33 FLW 1387, 2nd DCA, vehicle stop-juvenile's actions of sitting in parked vehicle in alley behind vacant building in high-crime area in early morning hours and turning lights off then on again did not provide reasonable suspicion that juvenile was committing offense of L & P-not give rise to reasonable suspicion sop of vehicle was illegal and trial erred in denying dispostive motion to suppress-discharge case

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

For Hank Adorno Diehards Only

Ok ok, by popular demand and in honor of our Movember charity fundraiser I offer all you Adorno/Ron McGill diehards your red meat.

Enjoy!

May 23, 2008

Hernandez, 33 FLW 1292, 3rd DCA, DUI-Speedy trial-DUI charge was filed as MM in county court,state announces it was filing a felony information in circuit court, mm's were transferred to circuit court, state did not consolidate the MM'S with the felony or nolle pros the MM, county court retained jurisdiction and should have dismissed the MM when the 90 day speedy trial period expired-because a conviction for the current MM DUI is required to establish the crime of Felony DUI after 3 prior MM's DUI, current Felony DUI could not be sustained-trial court erred in denying motion to dismiss felony DUI charge based on expiration of speedy trial period in underlying misdemeanor DUI in county court

Paul, 33 FLW 1315, 4th DCA, comment by the prosecutor during closing argument that State has the burden of proving elements of crime charged beyond a reasonable doubt and if defense attorney wants to present theories of how she believes case to play out, there has got to be some level of proof that the prosecutor's witness was lying-comment improperly shifted the burden because it insinuated that in order to be found not guilty, def needed to prove the prosecutor's witness was lying, not harmless sole evidence was presented by the prosecutor's witness, curative instruction where court overruled the defense objection and stated to jury that the state is allowed to comment on the evidence

Munroe, 33 FLW 1314, 4th DCA, prosecutor comment on def failure to make exculpatory statement after police stopped her and found cocaine in her bag even if made prior to her actual arrest, unconstitutional comment on def protected post arrest silence, even though def testified she was silent after the cocaine was found in the bag that hse was too shocked to speak invited a limited degree of inquiry prosecutor's comments exceeded the scope when he suggested that instead of being too shocked to speak she should have been shocked enough to proclaim her innocence-harmful error, inference of guilty knowledge from def's exclusive possession of cocaine was rebutted by the evidence she successfully passed through customs and drugs not discovered and that she was traveling with an acquaintance who might have the cocaine in her bag as she stated

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

May 16, 2008

May 16, 2008

Gray, 33 FLW 1261, 4th DCA, error to deny motion to suppress physical evidence and statements made by the def after officer responding to BOLO immediately arrested him, handcuffed him and administered Miranda warnings where ofc lacked pc to make warrantless arrest-earlier consensual encounter in which a fellow officer, who later issued BOLO, observed def side-stepping diagnoally up driveway between two cars and asked def to come over and talk to him, def approached gave ofc his name and consented to a frisk by a second officer, and ofc allowed the def to continue on his way did not give the ofc reasonable belief that the def had committed or was committing the crime-facts and circumstances within the ofc's knowledge was insufficient to warrant reasonable belief that def was committing or about to commit a trespass-Fact that ofc who issued th eBOLO found black powder on the grass did not raise reasonable suspicion that def had been carrying the pistol on or about his person or had discarded it

Baker, 33 FLW 1264, 4th DCA, Def was erroneously convicted of child abuse where the state failed to present any evidence of the mental injury of the offense-there was no evidence that def's acts could be reasonably be expected to result in an injury to the intellectual or psychological capacity to the child, as evidenced by a discernible and substantial impairment in the ability to function within the normal range of performance and behavior

Byrd, 33 FLW 1275, 2nd DCA, Trial court abused discretion in denying Motion to Sever charge of agg stalking of def's former girlfriend from separate charge of agg battery of another victim where battery, which occurred prior to stalking, was not causally relating to stalking of def's former girlfriend

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

May 9, 2008

Hill, 33 FLW 1202, 3rd DCA, new trial where error in the following ways:
A. state violate motion in limine where not mention high crime area and, error to introduce that police knew drug sales were taking place in the neighborhood
B. def not testify and ofc only witness to the transaction, state comment in closing that evidence was uncontroverted and uncontradicted improper burden shifting comment on def right to remain silence

Rawlings, 33 FLW 1211, 4th DCA, Poss of cannabis with intent to sell or deliver-evidence that the def possessed 31 individual bags of marijuana with a total weight of 28.8 grams and this testimony was inconsistent with personal use ok, cf Phillips 961/1137(2nd DCA). conflict certified

Prince, 33 FLW 1211, 4th DCA, error to deny JOA GT Auto where state failed ot prove def anything other than a passenger in a stolen car.

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

May 2, 2008

Johnson, 33 FLW 265, Lab reports are testimonial when prepared for criminal trials and subject to Crawford and admission without the preparer's testimony is improper

Peters, 33 FLW 273, Crawford not apply to VOP or VCC revocation hearings

Belvin, 33 FLW 279, Breath test results pertaining to operator's procedures and administering the breath test operator's procedures and observations is testimonial and is subject to Crawford

Perkins, 33 FLW 1102, 1st DCA, search and seizure-plain feel-ofc conducting a pat down felt another object in the pocket after removing knife and ofc had to run the tips of his fingers over the object to determine that the object was a lump of powder cocaine or some other kind of narcotic, plain feel doctrine did not apply to validate search of def's pocket and seizure of cocaine wrapped inside folded up dollar bill-error to deny motion to suppress

Peterson, 33 FLW 1104, 1st DCA, Castle doctrine, no error in denying motion to dismiss where the def argued he had immunity from criminal prosecution pursuant to 776.032 because shooting occurred when def's brother assaulted him after being asked to leave the def's house-must demonstrate by a preponderance of evidence he is immune form criminal prosecution-def may raise claim pretrial and court determine of def has shown by a preponderance of evidence that immunity attaches-trial court may not deny motion just because factual disputes exist-trial curt applied the correct standard-def can submit to jury as affirmative defense

Barrett, 33 FLW 1126, 4th DCA, evidence did not support finding that def was armed during burglary as def broke into automobile dealership for taking something of value, found safe inside, which he loaded into a vehicle and hauled away from the scene, and opening the safe with a crowbar, found blank checks and loaded gun inside

Lewis, 33 FLW 1128, 4th DCA, trial court improperly shifted burden of proof to the def that he did not consent to a search, instead of determining issue upon totality of circumstances, including weighing credibility of officers testimony, which court itself questioned-trial court failed to weigh evidence and determine facts and merely shifting burden to the def to produce some affirmative evidence to disprove testimony of officers

G.M., 33 FLW 1145, 3rd DCA, fact that ofcs in unmarked car activated emergency lights so as to identify themselves as police officers before they pulled into public park behind vehicle occupied by juveniles did not convert consensual encounter into a seizure-no per se rule that use of emergency lights by police convert a police encounter into a seizure-conflict certified-juvenile did not see lights prior to ofcs exiting vehicle and smelling marijuana coming into vehicle in which juvenile was seated, activation of lights played no role in juvenile's actions and id not play any role in 4th A analysis of facts and circumstances here-no seizure occurred before establishment of reasonable suspicion and pc to arrest juvenile when ofc saw juvenile rolling a marijuana cigarette

Brocca, 33 FLW 1156, 3rd DCA, hearsay-sexual battery of mentally disabled adult-statements made by victim to mother are non-testimonial, admissible if state establishes factual predicate, witness either testifies or is determined to be unavailable and court makes finding on the record including basis for determining the reliability of v's statements-victim's statements to state attorney interviewer are testimonial and admission of such statement would violate the def right to confront the accuser unless the victim testifies at trial, or the v is unavailable or def had the opportunity for cross-exam

Walden, 33 FLW 1173, 4th DCA, error to deny motion to discharge based on filing case after 175 days and grounds def had to file notice of expiration of speedy trial was error-waiver of speedy trial in another case involving att murder charge from same fight had no effect on this case because the two cases involve distinct acts against separate victims

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

April 25, 2008

Kettell, Sr., 33 FLW, Fla Sup Ct, Shooting in to building-crime of wantonly or maliciously shooting into a building cannot be established solely by proof of the shooting itself-state must prove the shooting was wanton or malicious-error to instruct jury that statute is violated by person shooting into a building per se-error not harmless

Reynolds, 33 FLW 1043, 3rd DCA, conspiracy to traffic in marijuana, def erroneously convicted of trafficking no actual or constructive possession of marijuana found in warehouse in shrink-wrapped cardboard barrels in warehouse-def properly convicted of conspiracy as circumstantial evidence to prove an express or implied agreement between the def and another person

Palmer, 33 FLW 1054, 4th DCA, error to refuse to allow defense counsel to put before the jury the reputation of the victim for truth and veracity in the community where v's credibility was the heart of the defense and v's testimony was the only evidence linking the def to the shooting-not harmless where other witnesses denied def was at the scene of the shooting

Hill, 33 FLW 1055, 4th DCA, trial court properly suppressed evidence from canine sniff search because the search warrant were unlawfully executed where search was conducted prior to physical possession of executed warrants or where search was not conducted by the officer named in the warrants

Sanon, 33 FLW 1056, 4th DCA, statement made to the ofc by def's son who was not a witness at trial was testimonial and not a witness at trial, incriminating his father was testimonial and not admissible under Crawford v. Washington because there was no ongoing emergency, event described by the son occurred 20 minutes earlier and son did not seek the assistance of the police but rather ofc's approached the son, admissible of excited utterance is ultimately governed by Crawford

Lanier, 33 FLW 1059, 4th DCA, child abuse-no error in granting the def's sworn motion to dismiss where undisputed facts did not rise to the level of the conduct charged-teacher's act of stomping on one child's foot, positioning a child with ADD in small chair at the top of the steps and pushing chair toward the steps with her foot not an intentional act which could reasonably be expected to result in physical or mental injury, teacher was actually keeping eye on child rather than ignoring him at the time he fell over the edge and tumbled down the stairs

Bonus: Virginia v. Moore, 4-23-08, US Supreme Court; The police did not violate the 4th A. when they made an arrest that was based on probable cause but prohibited by state law, or when performed a search incident to the arrest. Driving with a Suspended license arresting ofcs under state law should have issued a citation and 4th A. not permit a search incident to a citation.

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

April 18, 2008

Grant, 33 FLW 964, 2nd DCA, neither plain view nor exigent circumstances justified ofc warrant less intrusion into def's property where ofc went to home to investigate a report more than 100 dogs were on the property, ofc had no evidence suggesting that any dogs were mistreated, and when no one answered the door ofcs peered over and through slats of six-foot privacy fence, saw only some chained or caged dogs, ofcs then walked through a gate and searched the property-illegality of initial search was not cured by def's consent to show ofcs around his property, given the fact that the ofcs had already searched the property, demonstrating to the def they had the absolute right ot search and his consent to any search was a mere formality which he could not refuse-court finding break in chain of illegality not proved by clear and convincing evidence and was in error

Pilieci, 33 FLW 966, 2nd DCA, magistrate had no pc to issue a search warrant in controlled buy case where buy was 29 days earlier on a single occasion with an unidentifiable amount of cocaine bought from an unidentified person-remanded for question of exclusionary rule whether ofc acted in good faith of issuance of the search warrant by the magistrate any material omissions in support of the warrant were knowingly or recklessly made and whether ofc in good faith with his training and experience would believe affidavit would actually supported issuance of the warrant

Lebron, 33 FLW 976, 3rd DCA, Statements of def-trial court properly suppressed statements by def prior to administration of Miranda warnings in response to ofc's statement "I hope you know what kind of trouble you are in" Court erred in suppressing Post-Miranda Statement where police did not engage in two-step strategy of questioning def prior to Miranda, Missouri v. Seibert, 542 U.S. 600 and no claim either statement was involuntary

Dawson, 33 FLW 978, 3rd DCA, double jeopardy after mistrial-no manifest necessity for mistrial-def silence or failure to object not waive constitutional prohibition of d.j. -state witness on vacation for two weeks not warrant mistrial where judge did not question of other possibilities

Langdon, 33 FLW 982, 4th DCA, 948 alternative sentence not proper for person with non-drug prior, GT, also 5 priors for possession where the most one can qualify with is "four" prior convictions

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

April 11, 2008

Garzon, 33 FLW 240, Fla, use of "and/or" conjunction between the names of the co-def's in jury instruction on substantive crimes together with standard principals instruction was not under the facts of the case here fundamental error, not preserved here by objection, principal instruction explained to the jury properly the only way to convict each defendant and properly communicated by the judge, state and defense counsel

Telfort, 33 FLW 918, 4th DCA, Fingerprint examiner testified that other fingerprint examiners, over defense objection, had compared fingerprint found at home burglary scene and verified the id of def left index finger-Improper bolstering was probably prejudicial, without a confession state would be hard pressed to make the error seem harmless

Greider, 33 FLW 949, 2nd DCA, Vehicle search-ofc who observed vehicle parked legally parked in public park with towels rolled in the window so the ofc could not see inside the vehicle and acted legally when he approached the passenger side to determine whether anyone was inside the vehicle-once it was determined that the occupant of the vehicle ws okay and not involved in criminal activity, ofc lacked authority to order the def to lower the driver's side window-error to deny Motion to suppress drug para. observed in plain view through driver's side window and drugs found in door compartment of vehicle and ofc opened the door and directed the def to step out.

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

April 4, 2008

Williams, 33 FLW 858, 4th DCA, evidence presented by the state failed to establish prima facie of guilt where police could only testify only they saw what they believed to be hand-to-hand transaction and that def received some amount of cash from the driver in one exchange-Although drugs were found in a particular car, and police observed an encounter and possible transaction between def and the car's driver, there was no evidence linking the drugs in the car to the def-error to deny JOA

Joseph, 33 FLW 864, 4th DCA, trial court abused it's discretion in limiting def's cross-exam of officers as to whether they had prior excessive use of force complaints filed against them-state's argument that is line of questioning is allowed only where the complaints have been substantiated is rejected-error not harmless here, def acquitted of one count, shed light on discrepancies in testimony or ofc's credibility, def had no prior record and def claimed excessive forcee in arresting her

Dixon, 33 FLW 865, 4th DCA, stop-consensual encounter at Amtrak train station-contact between def and detectives could not be characterized as consensual encounter where ofcs approached def as he came out of the ticket booth, and before police asked for permission to search def, they showed him their badges, told him they were narcotics detectives working at the train station and reason for contact was large problem with people smuggling drugs no train and asked def if he was riding the train and to produce his ticket-manner approached def, one from front and one form rear who passed def and as a result were tow ofc's in def's path, supported trial court conclusion that contact was not consensual and that reasonable person would not have felt to free to disregard detectives questions and request to produce ticket and simply proceed on his way-no error granting motion to suppress

Fehringer, 33 FLW 868, 4th DCA, trial court erred by prohibiting def counsel from proffering minor's victim testimony regarding a prior accusation of sexual assault she made against another man-Lewd and Lascivious conduct case-error not harmless-fact that victim did not recant prior allegation does not preclude the defense counsel from inquiring into this allegation-no error in denying def's motion in limine regarding def's conduct in text messaging, tickling, and telling victim to "take it out in trade", not evidence of collateral crimes, relevant evidence admissible as part of, or inextricably intertwined with, the crime charged

Johnson, 33 FLW 869, 4th DCA, error to permit state to bolster victim's ID of def as one of the perpetrators of burglary by allowing to victim to testify that hse had correctly identifed the co-defendant at co-defendant's sentencing-error not harmless where def's defense was Misidentification and there was no physical evidence to support state's charge that def participated in the burglary

Clark, 33 FLW 873, 4th DCA, error to deny JOA where state failed to prove that def knew the officer intended to detain him where the def ran across the parking lot jumped fence and disappeared, resisting ofc without violence thrown out

Robinson, 33 FLW 878, 2nd DCA, Search and Seizure, fact that the def was standing around with a group of men surrounded by the odor of burning marijuana did not give the police pc for search of def's person-def initially gave consent for search of his person and then withdrew consent did not give ofc pc to search for marijuana-error to deny motion to suppress

Hines, 33 FLW 898, 1st DCA, evidence-collateral crime for which the def was acquitted-where the def was charged with robbery with a forearm and possession of F/A by convicted felon, trial court abused discretion by admitting into evidence def's alleged possession of a firearm on a different date, a crime for which the def was acquitted

Woodard, 33 FLW 899, 1st DCA, Lewd ir Lascivious Molestation-evidence, other crimes, wrongs or acts, vague testimony of witness regarding an incident described only as a "sexual assault" committed on her by def 17 years before the charged crimes was erroneously admitted-not sufficiently similar to the charged offense

Reaves, 33 FLW 901, 1st DCA, Racing on Highway-316.191 is facially constitutional, conflicts with Wells, 965/834(4th DCA 2007)

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

March 28, 2008

Adams, 33 FLW 225, Fla, sex offender probation, even where the court order does not specify a deadline for completing the sex offender treatment program or how many attempts the probationer has to complete it, where a def enrolls in but fails to complete a sex offender probation, trial court may in it's discretion depending on the circumstances revoke the probation, def attended only one session before being terminated for two successive absences, even though told in advance two successive absences would result in its termination and def had the ability to pay for the sessions

Farmer, 33 FLW 797, 4th DCA, No fundamental error here where faulty jury instruction did no effect the verdict the state or defense did not mention the instruction during closing argument and instruction(self-defense, use of force likely to cause death or serious bodily injury is not justifiable if the def was attempting to commit, committing or escaping after the commission of an aggravating battery

Doughty, 33 FLW 799, 4th DCA, carrying concealed weapon without a permit, private conveyance exception does not permit the unlicensed of carrying a concealed firearm or other weapon in zippered pack around the waist while riding a motorcycle-securely encase exception, 790.25(5) does not apply if carries weapon on his person, not within the interior compartment of the motorcycle

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

March 21, 2008

Wells, 33 FLW 735, 4th DCA, illegal stop-witness testimony was sufficiently attenuated from the illegal stop to be admissible where the records shows witness testified willingly at trial, that illegal stop of the vehicle played no role in securing the witness cooperation and witness first spoke to the police after the illegal search and he testified at trial two years later-witness was not the one stopped and was not coerced or influenced by the police misconduct-witness consent to the search of his apt was intervening circumstance that broke the chain of events that began with the stop so that the items taken from the apt was sufficiently attenuated from the illegal stop in order to present that evidence at trial

**DHSMV v. Pelham, 33 FLW 765, 5th DCA, refusal to take the breath test-license suspension may not be predicated on refusal to take the test that is the product of an unlawful arrest-amendments to statutory review procedure and reading of the staff analysis are not indicative of legislative intent-question certified-IMPORTANT CASE

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

March 14, 2008

Contreras, 33 FLW 177, Fla. SC, Pre-Trial Videotaped statement made by child victim to coordinator of the Child Protection Team were improperly admitted based on Crawford, because the statements were testimonial in nature, child was unavailable to testify at trial and the defendant did not have a meaningful opportunity to cross-examine the declarant-error was harmless as to Lewd and Lascivious conviction but not as to the sexual battery conviction-child was unavailable(long discussion) based on substantial likelihood of harm, important discussion about whether a deposition could be used in this case court ruled it did not afford the def the opportunity for cross-examination as the defendant was not present and it was not a perpetuated deposition

Blanton, 33 FLW 184, Fla SC, audiotape interview made with police investigator in which girl stated she was the person in photos and videos was testimonial out-of-court statement and was improperly admitted at trial where the girl was unavailable to testify and def did not have the meaningful opportunity for cross-examination-Crawford

C.A., 33 FLW 645, 3rd DCA, in-school search of juvenile no reasonable suspicion-where student was in the teacher's classroom at a time he was not supposed to be, teacher escorted him to the door, and upon returning to student who had been talking with the juvenile, immediately smelled strong odor of marijuana, this did not provide basis for taking the juvenile to the principal's office and asking the juvenile to empty his pockets and reveal anything he may have had in his wallet

Tedder, Jr., 33 FLW 704, 2nd DCA, Canine search did not provide pc for search as state did not show the dog was reliable, exact training the dog received, standards or criteria employed in dog training, track record of dog, amount of false alerts or mistakes the dog has furnished-contra, Coleman, 911 So. 2d 259(5th DCA 2005), Laveroni, 910 So. 2d 333(4th DCA 2005)

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

March 7, 2008

Jenkins, 33 FLW 147, Fla., totality of circumstances, probable cause and Confidential informant's for the state but important case to have in your file in order to try and distinguish.

Whittingham, 33 FLW 612, 4th DCA, Multiple convictions and sentences for various crimes sexual crimes against child arising from multi-year course of abuse of child victim by defendant-because state may charge a defendant in child sexual abuse case in a manner not permitted in other types of criminal cases, expanding time periods for commission of offenses and grouping types of offenses together, it is not fundamental error (no objection) to submit such a charge to the jury, prosecutor made no affirmative invitation to jury to find guilt by non-unanimous verdict, as was done in precedent relied upon by the defendant which was not a sexual abuse case

Kositsky, 33 FLW 614, 4th DCA, Corruption by threat-trial court should have granted JOA where element of intent to influence performance of an act by a public servant was not established-handcuffed def's threat to slit throat of officer if he removed handcuffs could not have the intent to influence the performing of an act

Valentin, 33 FLW 617, 4th DAC -Possession of cocaine with intent to sell-evidence was insufficient to show intent to sell in a park where the sole evidence consisted of ofc's testimony he saw the def drop a baggie, containing seventeen(17) smaller baggies of cocaine, in the bushes-discovery of smaller baggies not automatically establish intent to sell-quantity and packaging insufficient where ofc testified quantity and packaging was consistent with intent to sell and also admitted it could be for personal use

Milton, 33 FLW 622, 3rd DCA, where state called a witness and asked him questions about statements incriminating the def, knowing that the witness would invoke the Fifth A. right not to answer the question. def right to confront the witness was violate-impression for jury there was incriminating evidence against the def and def was unable to overcome this impression through cross-exam because witness would not testify

Robinson, 33 FLW 636, 2nd DCA, JOA should have been granted based on constructive possession where drugs were found in baggies which were concealed in ceramic house on kitchen counter of residence jointly occupied by def, his girlfriend and girlfriend's children and evidence did not show beyond a reasonable doubt that def knew of the presence of the drugs and ability to exercise dominion and control over them

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

White Collar Defense - Employees and Attorney Client Privilege - Tampa Criminal Defense

Tampa Criminal Defense Attorney reports that the Department of Justice DOJ has discontinued its policy that previously considered companies as not cooperating if they paid attorney fees for employees or failed to share attorney-client work product and confidences with prosecutors. The new DOJ guidelines that are intended to protect a company's attorney-client privilege, work product, and employees' right to counsel.

Executive Summary: The following is a summary of the new DOJ Policy

Credit for cooperation will depend on the disclosure of relevant facts, not on the corporation's waiver of attorney-client privileges;

A corporation's payment of attorneys' fees for employees is not a factor in determining cooperation;

A corporation's participation in a joint defense agreement with employees does not preclude credit for cooperation;

Whether the corporation has sanctioned or retained culpable employees is not a factor in determining credit for cooperation;

Historically, it has been the DOJ's policy to give credit to a corporation in exchange for its cooperation, but what exactly a corporation must do to earn such credit? According to Deputy Attorney General Mark Filip, the new guidelines reflect the DOJ's "commitment to two goals: safeguarding the attorney-client privilege and
preserving the DOJ's ability to investigate corporate wrongdoing effectively."

Important Note: The guidelines do not apply to investigations by other federal agencies such as the Securities and Exchange Commission and the Environmental Protection Agency.

Hank Adorno Not One of The "Lucky Seven."

So let's see what's in the news today.

How about that -- I read in the Herald that the CANF endorsed Barack Obama!

Strike that, apparently the CANF's endorsement is not newsworthy enough for Herald readers, who prefer to read dopey letters about Obama's love for Yassar Arafat and other prominent Indonesians.

Also, an angry mob of McCain supporters surrounded two Obama supporters at the McCain rally in Miami yesterday, shouting "terrorist" and "communist" before the police had to intervene and escort them to safety.

Again, the Herald was right on it (not).

Hey, what do you know -- all of our appellate judges are Republicans now! Sure makes it easier to talk politics in the courthouse lunchroom I guess.

Meanwhile, it seems the centuries-old fire-fee case, originally filed in 1552, may finally be nearing an end:

Miami-Dade Circuit Judge Jose Rodriguez on Wednesday gave his final approval to a $17.1 million settlement with taxpayers, ending a contentious legal battle over the fire fee that dragged on for a decade.

By late this year or early next year, refund checks of a few hundred dollars, give or take, will be mailed to the roughly 48,000 taxpayers who have filed the necessary paperwork. The window for taxpayers to submit refund forms closed last week.

''Although taxpayers probably won't get much more than ten cents on the dollar, if that much, it's time we closed the chapter,'' said Miami activist Monique Taylor. ``It's a victory nonetheless.''

Hold on -- for SFL fave and proud Movember member Hanky "Who, Me?" Adorno the case drags on:

Last week, the Florida Bar found probable cause for misconduct proceedings against Mays and prominent attorney Hank Adorno, who represented the so-called ''lucky seven'' included in Miami's original $7 million deal.

The Bar finding raises the possibility both Mays and Adorno could face disciplinary action -- ranging from reprimand to disbarment. The Bar also found another attorney in the Adorno & Yoss firm, Robin Corwin Campbell, had committed ``minor misconduct.''

Adorno & Yoss, while not admitting any wrongdoing, has agreed to contribute $1.6 million to the just-approved settlement with taxpayers.

You gotta love Hank. Like certain 3d DCA judges, he is the gift that keeps on giving.

February 29, 2008

Steil, 33 FLW 549, 4th DCA, aggravating fleeing or eluding an officer-insufficient evidence of driving at "high speed" or with "wanton disregard" for safety of persons or property, while fleeing or eluding an officer with lights and sirens activated, to support the conviction where ofc testified that he did not have lights or sirens on for most of the pursuit

Humphrey, 33 FLW 578, 2nd DCA, husband-wife privilege, cell phone records reflecting the number of calls between the def husband and wife, the duration of the calls, and the relative physical location of the cell phones at the time of the calls are not protected from disclosure of the husband-wife privilege-only the substance of the conversation is protected

Mordenti, 33 FLW 587, 2nd DCA, error to exclude testimony of attorney for alleged coconspirator, who was deceased at the time of the trial, regarding statements made to attorney by co-conspirator, where such testimony, if believed by the jury would exonerate the defendant, any attorney-client privilege was waived when the state received an ex parte order requiring attorney to respond to state's questions in prior trial-where Florida Supreme Court did not treat information as privileged in prior appeal, that has become law of the case as it relates to privilege-statements are admissible as impeachment of state witness, also admissible as spontaneous statement and statement against interest

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

February 22, 2008

Martinez, 33 FLW 125, S. Ct., jury instructions, self-defense, forcible felony exception-error to court to read when def is not charged with an independent forcible felony-is fundamental error when it deprives the def of a fair trial, not here where self defense was weak and not the only defense argued by the defendant

Yisrael, 33 FLW 131, S. Ct. HVFO-hearsay- DOC release date letters alone, inadmissible hearsay, crime and time reports issued by DOC are admissible as public records so long as they are properly authenticated, Dept may issue a 90.902(11) certification to that report, which satisfies business records admissibility predicate(signed and sealed admissible as public record to establish a def as a HVFO

Garcia, 33 FLW 485, 3rd DCA, evidence-other crimes, wrongs or acts, where def used a knife on the victim who was with the def estranged wife, trial court did not err in admitting evidence that showed estranged wife a knife eleven days earlier and told her he would use it on her if she was with another man-door was opened to admission of evidence of prior threat by def's testimony on cross-examination

*Barnes, 33 FLW 500, 4th DCA, Pat-Down, although the pat-down was not justified by fact that he made movements toward his pockets after ofc stopped him for riding bicycle at night without a light, trial court erred in granting a motion to suppress all evidence obtained by the officer-error to grant motion to suppress of cocaine discovered in def's pocket after discovery of outstanding warrant and arrest of defendant-subsequent arrest after unlawful pat down and formal arrest of def dissipated taint of illegal frisk-State v. Frierson, 926 So. 2d 1139(Fla. 2006)(three part test as evidence is excluded as fruit of the poisonous tree)

Schreiber, 33 FLW 526, 2nd DCA, cross-exam-rule of completeness is not grounds for the jury to be told the def is on probation just because she testified that her employer had poor money management skills, def's being on probation is neither explanatory nor relevant to def's theory of defense in a theft case that the money was lost as the result of her employer's poor management skills.


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

February 15, 2008

Hill, 33 FLW 426, 2nd DCA, fingerprint-evidence that def's fingerprint was found on a piece of glass from a broken window at burgled premises was insufficient to sustain conviction of trespass of LIO of burglary where the window was accessible to the public

Novak, 33 FLW 431, 4th DCA, self-defense, jury instructions, error fundamental, jury instruction imposing a "duty to retreat" on a def who employs self-defense while in "engaged in unlawful activity" was confusing under the circumstances because the def was not engaged in an unlawful activity other than the crimes for which he asserted the justification is well-taken

Berube, 33 FLW 451, 5th DCA, def was erroneously convicted of vehicular homicide where evidence did not prove that the driving in a reckless manner likely to cause death or GBH to another-def's act of briefly stopping and then making a left turn across opposing lanes of traffic and hitting an oncoming traffic and hitting an oncoming vehicle after a following truck had almost hit the def's vehicle from the rear did not rise to level of recklessness necessary to support the conviction

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

February 8, 2008

A.T.P., 33 FLW 402, 2nd DCA, search of parked vehicle was unlawful where the juvenile had exited the vehicle thirty minutes earlier and had been told by the officer during a consensual encounter that he was free to go, and he was standing 30 to 60 ft. from the vehicle when the ofc discovered that juvenile had a business purpose only driver's license and he arrested him for the license violation-juvenile was not in close proximity to vehicle, had not recently exited the vehicle and did not have keys to locked vehicle in his possession; and there was no evidence that the officer was concerned for his safety or there was a risk that juvenile might destroy any evidence that might be contained in the vehicle

February 1, 2008

Busciglio, 33 FLW 267, 2nd DCA, trial court erred in suppressing arresting ofc's request and def refusal to take a breath test(2nd time now a misdemeanor) on ground that the def was denied his right to counsel on ground that he was now facing a misdemeanor and not just a license suspension-ofc explanation to the def of obligation to take the breath test, request that def take the breath test, def response to request did not constitute testimonial interrogation implicating right to counsel

Gallo, 33 FLW 284, 4th DCA, Arthur hearing found for the state, presumption of guilt is great and proof of charge is evident here there were not enough substantial questions of fact raised as to the guilt or innocence of the defendant based on the def's statements with a brutal second degree murder and his statement did not explain the highly incriminating circumstances which teded to impeach is version of events

Reed, 33 FLW 289, 4th DCA, reasonable doubt as to the impartiality of prospective juror and his ability to be fair and impartial response that he will always "favor a little bit more" police officers and favor them even more when alcohol is involved, remand for new trial

Morton, 33 FLW 338, 5th DCA, Motion for mistrial should have been granted where c.i. who allegedly purchased cocaine from the def testified that "a lot of folks knew that the def was selling drugs-curative instruction not enough where jury was improperly informed of def's prior criminal activity

January 18, 2008

Khianthalat, 33 FLW 44, Fla, not entitled to permissive lesser included jury instruction of battery in Lewd and Lascivious case where there is no allegation of lack of consent in the charge and the evidence did not support lack of consent

Ward, 33 FLW 445, Fla, Jimmy Ryce Act, a person who was not in custody on 1-1-99, is eligible for civil commitment under the Act if that person was sentence to total confinement after 1-1-99, but the qualifying sex conviction occurred prior to 1-1-99

January 15, 2008

Swift, 33 FLW 222, 2nd DCA, error to deny JOA for Agg. Assault where charge was based on theory that the defendant backed his automobile in the direction of a police officer who had run behind the def's vehicle only seconds before def began to back up out of a driveway at night, state failed to prove the def had requisite specific intent to threaten the officer

Richardson, 33 FLW 230, 4th DCA, trial court erred in denying the motion to suppress physical evidence and post-Miranda statement based on an illegal stop of the def's vehicle-no reasonable suspicion that criminal activity was or about to take place, stop was illegal, where the def was parked in a deserted parking lot where he had made numerous drug arrests, observed the vehicle swaying back and forth and described the swaying as not too violent-location and non-violent swaying not justify the stop

**Hobbs, 33 FLW 260, 5th DCA, sexual activity with child-confession, Section 92.565, which eliminates the corpus delicti precondition for introduction and admissions of confessions in sexual abuse cases when the state is otherwise unable to prove the crime, is applicable to make the def's confession admissible when the state inability to prove the crime due to victim's lack of cooperation rather than her incapacity-Conflict certified, Kelly, 946591(1st DCA 2006)

January 11, 2008

Lopez, 33 F;W 22. Fla, Good Post-Crawford and Post Davis cases that discuss testimonial evidence vs. excited utterance and pre-trial depositions are not considered cross-examination for 6th A. purposes and court when the defendant is clearly not present at the deposition.

Sellers, 33 FLW 93, 1st DCA, Blood test record admitted into evidence was non-testimonial in nature where blood test was performed only because def emergency room doctor required the test for treatment purposes only and properly diagnose and not ordered by law enforcement or performed in furtherance of a police investigation.

Wilson, 33 FLW 117, 4th DCA, Self-defense, where def claimed self-defense in a fight with victims, court erred in excluding evidence about prior confrontations between the def and the victims, including incident where there was a verbal altercation and victims tried to entice the def into a fight by using provocative racial epithet and fact that victims had driven past the def's house every day for six months leading up to the incident in question

Ratliff, 33 FLW 132, 4th DCA, error to revoke probation where material evidence adduced to prove criminal violations consisted of almost exclusively of inadmissible hearsay-lack of non-hearsay evidence establishing essential elements of criminal offenses of issue, i.e., knowledge, custody and control of drug, and intent to sell, judge abused discretion in revoking probation

Alhindi, 33 FLW 136, 4th DCA, Felony while driving while license suspended or revoked as H.O.-error to grant motion to dismiss on ground that DHSMV illegally placed 5 year revocation-state was not required to prove that DMV lawfully designated defendant Habitual Traffic Offender but merely to introduce def driving record-fact that, after def charged lawyer set aside underlying traffic convictions which rendered him a habitual traffic offender and led to license revocation does not event the state from presenting a prima facie case of felony driving with revoked License as a habitual traffic offender-def remedy was to correct the record upon receiving revocation notice and not ignore the notice of the suspension

Doe, 33 FLW 139, 4th DCA, arresting ofc did not have reasonable suspicion that crime had occurred, or was about to occur, when he stopped the def's vehicle, which was parked in an area that did not have marked spaces and which drove away as officers approached while on foot patrol in area known for drug deals-no traffic violation as pulled out of parking area

Phillips, 33 FLW 148, 2nd DCA, Def was on administrative probation had constructive notice of standard condition of probation requiring submission of random testing to determine presence of controlled substances

White, 33 FLW 151, 4th DCA, trial court improperly admitted testimony that def's conduct displayed a characteristic typical of drug transactions-general criminal behavior based on ofc's experience with other cases is inadmissible as substantive proof of def's guilt

3d DCA Watch -- Clash of the Titans Edition

Well kiddies it's that time again, that exulted moment of the week when our Judicial Gods deliver mammon to the supplicants, where dreams are made, hopes are dashed, and PCAs sprout like wild quinoa, yes it's straight from that cute little Courtroom By the Highway, a special Judicial Smackdown edition featuring two of our bestest and most spectacularly robed coffee-swillers, oh hail let's get right to it, it's 3d DCA Watch:

Cooper Tire v. Rodriguez:

Wow -- Salter against Cope, in an appeal handled by Rudy Sorondo (hey I forgot he has a beard too!) on one side and Laurie Waldman Ross on the other. Bring me some popcorn and a really uncomfortable chair like they have in the 3d DCA gallery, this is gonna be good!

Indeed it is.

This is an opinion denying a writ of prohibition after a trial judge refused to disqualify himself for ex parte changing a hearing date after talking only to plaintiff's counsel who was there before the judge on another matter. Oh, the trial judge also denied the defendant's motion for continuance using an order drafted by the plaintiff's lawyer before the defense had even filed the continuance motion.

What, you say?

I urge everyone to read this opinion because for me it highlights the chummy, informal, and annoyingly ad hoc manner that justice is (sometimes) dispensed inside 73 West Flagler. And I hate to say it, but I think Judge Salter's majority opinion here contributes to this maddeningly casual and clubby culture. For example, Judge Salter takes issue with Judge Cope's characterization in his dissent of the order denying the (unfiled) motion for continuance as follows:

The order resetting the discovery hearing is characterized by the dissent as one which denied a motion not yet made. But Cooper Tire’s counsel had asked opposing counsel to consent to a rescheduling and had indicated that the motion would be filed.

But it DID deny a motion not yet made (the order denies "Cooper’s motion to continue special set hearing") . Besides, asking counsel to consent to certain relief that may be requested in an actual motion is not the same as making the motion before the court! Judge Cope explains:

On September 4, plaintiff’s counsel visited the trial judge’s chambers and spoke to the judicial assistant to try to reschedule the September 16-17 hearing. The trial judge overheard the conversation and indicated that it might be possible to move the hearing to earlier dates, namely, September 11-12. The judge directed plaintiff’s counsel to prepare an order which denied the not-yet-filed motion for continuance. The judge signed the order.

Although defense counsel had not yet filed a motion for continuance, the order stated that the cause had come on to be heard on an ex parte basis “on Cooper’s motion to continue special set hearing (scheduling issue only).” The order stated that the court would “attempt to accom[m]odate the parties by entertaining the [discovery] motions on Sept. 11 & 12 depending on availability & weather conditions. If the court is not available on Sept. 11th & 12th the hearing shall take place as originally scheduled on 9/16 & 17.”

Plaintiff’s counsel faxed the order and cover letter to defense counsel, explaining how the order came to be entered. Defense counsel filed a motion for disqualification, which the trial court denied as legally insufficient.

Judge Salter also chastises defense counsel (Holland & Knight) for filing the motion to disqualify. In Judge Salter's view, the defense lawyers, after having their hearing date changed ex parte in an order drafted by plaintiff's counsel, should have immediately identified other proposed dates to the trial judge:

If those dates were not available for counsel, Cooper Tire could and should have immediately identified other available dates, filed its promised written motion for continuance, notified opposing counsel and the court, and requested an immediate telephonic hearing (or a so-called “add on” for the next motion calendar) to resolve the matter.

But the order says if the hearing does not go forward on the earlier, newly changed dates, then the hearing would proceed on the originally-scheduled date. What would be the point of moving for a continuance when the court has already denied it ex parte and indicated it would not change the hearing to another date?

Judge Cope pretty much sums it all up here:

In this case defense counsel had conveyed his intention to plaintiff’s counsel to file a motion to continue the September 16-17 hearing. Defense counsel had not yet filed the motion when, the next day, plaintiff’s counsel went to the judge’s chambers to request alternative dates from the judicial assistant. The judge became involved in the discussion and ruled that the defendant’s not-yet-filed motion for continuance would be denied. This was done without the defense having filed its motion and without being heard on the motion. These circumstances would give rise to a reasonable fear, when looked at from the viewpoint of the movant, that the movant would not receive a fair trial.

As much as I love Judge Salter, I have to say I agree.

Jack Thompson: It's Official

Fifth DCA Reduces Standing in 163.3215 Challenges to a Pleading Exercise

In Save the Homosassa River Aliance v. Citrus County, the 5th District dramatically expanded the scope of standing under section 163.3215, essentially eliminating any meaningful limitation from the language that requires a plaintiff to claim and demonstrate impacts to an interest protected by the plan that exceeds that of the general public.

The challenge involved a rezoning that increased density, from 15 to 87 units.

In reviewing the cited allegations of the complaint, at least one of the plaintiffs probably alleged sufficient standing based on potential traffic impacts to a hurricane evacuation route. But the rest of the allegations are just junk - claims that the plaintiffs enjoyed canoeing on the river that are not then supported by any claim of particular plan policies that protect those interests and that would be violated by the development order.

In order to gut the definition of "aggrieved or adversely affected" in the statute, the court sets up a straw dog of a "unique" interest or impact - which is clearly not required, and then allows "any" impact to "any" interest:

The allegations show that the Plaintiffs all have a direct and demonstrated
concern for the protection of the interests furthered by the comprehensive
plan that would be adversely affected by allowing a development that violates the plan.
An interpretation of the statute that requires harm different in degree from other citizens would eviscerate the statute and ignore its remedial purpose. It drags the statute back to the common law test. The statute is designed to remedy the governmental entity's failure to comply with the established comprehensive plan, and, to that end, it creates a category of persons able to prosecute the claim. The statute is not designed to redress damage to particular plaintiffs. To engraft such a
"unique harm" limitation onto the statute would make it impossible in most
cases to establish standing and would leave counties free to ignore the plan
because each violation of the plan in isolation usually does not uniquely harm the individual plaintiff. Rather, the statute simply requires a citizen/plaintiff to have a particularized interest of the kind contemplated by the statute, not a legally protectable right.

But for the most part, the allegation in the complaint cited by the Court didn't claim that the development would harm the protected interests that were claimed in any meaningful way. The court's attempts to distinguish the earlier Keyser and Putnam County Envt'l Council opinions are simply unconvincing.

The REAL problem is that the courts now permit "strict scrutiny" of the plan that doesn't discriminate between the broad language of goals or objectives, and many totally subjective policies. There is no way for ANY development to be consistent with most plans if every part of the plan is read expansively.

Read the dissent to this case. What's coming is an explosion of cases that will essentially halt any development that anyone doesn't like for as long as the NIMBY-neighbors can afford to litigate.