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

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