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.